On April 12, 2010 the Supreme Judicial court found that a Judges jury instruction that they were to decide the case based on the evidence presented not on anything they may have seen on “CSI” did not prejudice the defendant. In COMMONWEALTH vs. VUTHY SENG. 456 Mass. 490 (2010) the court stated in reviewing the facts that “On the evening of November 12, 1995, four children, three boys and one girl, were found in their home suffering from severe injuries. All four had been shot in the head; one also had been attacked with a large knife. Within days, the three boys died. The girl survived.
In 1995, the defendant was indicted for the murders of the three boys, G. L. c. 265, § 1; and armed assault with intent to murder the girl, G. L. c. 265, § 18 (b). [FN1] He was found guilty on all the indictments on December 9, 1997. In 2002, his convictions were set aside because of the admission in evidence of a statement obtained from him in the absence of adequate Miranda warnings. Commonwealth v. Vuthy Seng, 436 Mass. 537, 548, cert. denied, 537 U.S. 942 (2002). After a second jury trial, the defendant was found guilty of three charges of murder in the first degree on the theories of deliberate premeditation and extreme atrocity and cruelty, as well as guilty on all the remaining charges. The defendant appealed.
We affirm the convictions and decline to grant relief under G. L. c. 278, § 33E.
2. Claims of error at trial. The defendant raises several grounds for reversal. First, he argues that the judge violated Rule 6 of the Rules of the Superior Court (Lexis Nexis 2008-2009) by requiring the defendant to exercise his peremptory challenges before the Commonwealth with regard to certain jurors during individual voir dire. He next argues that the judge erroneously allowed the Commonwealth to bolster the girl’s testimony with a prior consistent statement, and erroneously denied the defendant an opportunity to read an inconsistent statement by the victim into the record as a past recollection recorded. Finally, he contends that the judge erroneously took away his right to attack the adequacy of the police investigation by admonishing the jury that they were to decide the case based on the evidence at trial, not what they saw depicted on television programs or in science fiction.
d. Removal of Bowden defense. Throughout trial, the defendant argued that the police assumed too quickly that the defendant was the culprit and, as a consequence, ignored conflicting evidence and conducted an incomplete forensic investigation. The judge thus acquiesced to the defendant’s request that he give a so-called Bowden instruction, see Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980) (Bowden), advising the jury that reasonable doubt as to the defendant’s guilt could *502 arise from a finding that law enforcement failed adequately to investigate the crime. The defendant contends, however, that subsequent comments by the judge had the effect of neutralizing his defense. Immediately following the Bowden instruction, the judge said:
“And I remind you that this is real life and not CSI. I say that without being facetious. It’s been observed across the country that people who’ve watched that particular program and similar programs tend to think that life is all that sort of science fiction and it’s not.
“Now, it may be, I say it may be, it may not be but if it is, then maybe you would like to have heard the testimony of a person or somebody or persons for that matter, that neither side had called has a witness. Once again, you may not speculate or guess as to what that witness’s testimony might have been. Not knowing the testimony, of course, you can’t tell which side it would have helped or hurt. I urge you, therefore, not to spend any time arguing about why so and so didn’t testify.”
The defendant argues that this instruction went beyond admonishing the jury against improper speculation and impermissibly precluded the jury from considering the inadequacies in the law enforcement investigation. See Bowden, supra. The defendant objected to the instruction, thus we review his claim for prejudicial error. Commonwealth v. Williams, 439 Mass. 678, 682 (2003).
“The Bowden instruction permits jurors to consider evidence (actually presented) of police failure to take certain investigatory steps, as it relates to the reliability of the Commonwealth’s case, and indeed evidence of such failures alone may be sufficient to create a reasonable doubt of the defendant’s guilt.” Commonwealth v. Tolan, 453 Mass. 634, 652 (2009). The judge may not “remove this evidence from the jury’s consideration, and in so doing invade the province of the jury to decide what inferences to draw from certain evidence,” Bowden, supra at 486, but the judge is permitted to instruct the jury against speculating about nonexistent evidence. See Commonwealth v. Tolan, supra. That is, the jury may consider evidence of absence, *503 but they may not fill that void with evidence conjured from their own speculation.
Here, the defendant elicited testimony that law enforcement did not perform certain forensic tests and did not follow up on alternate leads. He argues that the judge’s reference to “CSI,” a popular television program about forensic science, and to science fiction, removed that evidence from the jury’s consideration because the judge implied that the defendant’s argument was not based in reality. We disagree. The judge properly highlighted the defendant’s Bowden argument and then properly admonished the jury against inventing their own evidence. See Commonwealth v. Tolan, supra. He did not asperse the defendant’s argument. There was no error. See Commonwealth v. Williams, supra.
It bears noting that the judge’s instruction likely was influenced by several references to “CSI” at trial. For example, the Commonwealth asked a police officer who collected forensic samples at the crime scene in 1995 whether investigators on television programs such as “CSI” use a dusting technique to search for fingerprints. The witness answered affirmatively, but the judge immediately cautioned the jury that they were not to assume that “CSI accurately mirrors life in the outside world.” The defendant himself referenced the television program during the cross-examination of the Commonwealth’s DNA expert. In total, “CSI” was referenced four times during the evidentiary portion of the trial: once by the Commonwealth, once by the judge, and twice by the defendant. Thus, the defendant’s argument that the judge prejudiced his Bowden defense ignores the prevalence of “CSI” references at trial. In context, the judge’s instruction was designed to confine “CSI” to its rightful place in fiction, not reality.
That said, we do not indorse the judge’s formulation of the Bowden instruction. Based on the judge’s language, he was apparently concerned about the so-called “CSI effect,” the theory that jurors who watch forensic science television programs like “CSI” will hold prosecutors to an unreasonably high standard of proof because of the prowess displayed by fictional forensic scientists. However, we note that the “CSI effect” may be largely speculative:
“While the CSI effect has been widely noted in the popular press, there is little objective evidence demonstrating that the effect exists. As is often the case with legal issues, the pace of public discussion has outstripped the ability of scholars to research the issue. Lacking any empirical data, discussions of the CSI effect have instead been based on the personal impressions of lawyers and legal scholars.” (Footnote omitted.)
Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction, 115 Yale L.J. 1050, 1053 (2006). Given its uncertain foundation, the “CSI effect” is a subject beyond the permissible scope of judicial notice. The same holds true for the breadth and nature of the gap between fictional and factual forensic techniques. The implication of a “CSI” instruction, such as the one given here, is that the actual capabilities of law enforcement forensics are much less than that of “CSI” specialists, in the absence of any evidence on the subject. Such references in the context of Bowden instructions may be problematic in some cases and are unnecessary; jurors can and should be trusted to separate what they see on television from what evidence is presented at trial. See Commonwealth v. Furr, 58 Mass. App. Ct. 155, 161 (2003), quoting Commonwealth v. Roberts, 378 Mass. 116, 128 (1979). In this case, the judge acted properly when he cautioned the jury about the relevance of “CSI” after it was referenced in testimony, but it was undesirable for him to do so again in his jury instructions.”
Theres no doubt that sensationalized tv shows such as “CSI” have had a strange deadening effect on the ability of people to understand what exactly does happen during criminal investigations. The effect of the heightened expectations certainly can color peoples judgements, and the Judge in attempting to address it was certainly within his rights.
Attorney Ronald A. Sellon