Abstract
Most of the witnesses who lay the foundation for forensic evidence are seen by almost no one outside the courtroom. News reports mention the result and the expert who explained it. Documentaries and podcasts compress weeks of testimony into hours, and foundation testimony is among the first material cut. Fictional crime drama compresses the laboratory pipeline into a single scientist who collects, analyzes, and explains. This paper examines how foundation testimony reaches, or fails to reach, three audiences: jurors, in-court observers, and the mediated public. It identifies five consequences of the gap between what these audiences see and what they understand: the inflation of conclusions presented without their foundation, the misreading of sequence as corroboration, the invisibility of record evidence admitted on certification, the association of foundation with conspiracy when it becomes visible only under attack, and difficulty interpreting the statistical conclusions that foundation supports. It reviews the literature on the so-called CSI effect and concludes that the problem is better described as a gap in understanding than as a distortion of verdicts. It ends with implications for journalists, documentary producers, educators, and courts.
1. Introduction
The first four papers in this series described the structure of foundation testimony: the axes that determine its load, the distinction between corroboration and sequence, the constitutional line that determines which analysts must appear, and the costs that line imposes. This paper turns from the structure itself to its visibility.
Foundation testimony is, for the most part, invisible. It occupies trial time but not public attention. The property clerk, the courier, and the intake technician testify briefly and leave, and their testimony rarely appears in any account of the trial beyond the transcript. The certification that admits a carrier’s records is a document read by the judge and not by the public. The laboratory pipeline that produced a DNA result appears, if at all, as a single analyst reporting a match.
This invisibility is not a failure of any particular institution. It follows from the nature of the testimony, which is repetitive, technical, and uneventful in the great majority of cases, and from the demands of every medium through which trials reach the public. But the invisibility has consequences for how the public understands forensic evidence and, to a degree, for how jurors evaluate it.
2. Three Audiences
Foundation testimony reaches three audiences, each of which sees a different portion of it.
2.1 Jurors
Jurors see all of the foundation testimony presented at trial. They hear every custodian, every analyst, and every stipulation read into the record. But they see it without explanation. Jury instructions typically tell jurors to weigh testimony rather than count witnesses, but they do not ordinarily explain why the procession of custodians is present, what it establishes, or how it differs from corroboration. Jurors receive the procession in its outward form and must infer its purpose.
Jurors also do not see what the law excludes from their view. They do not know that a carrier’s records entered on a written certification, unless someone tells them. They do not know which participants in a laboratory pipeline did not testify. They see the witnesses who appeared and have little means of recognizing the witnesses who did not.
2.2 In-Court Observers
Observers who attend trials in person, including family members, journalists, law students, and members of the public, see what jurors see but ordinarily for shorter periods and with even less orientation. An observer who attends a single day may see nothing but foundation witnesses and conclude that the trial is proceeding slowly for no reason. An observer who attends only the day of the principal expert may conclude that the case rests on that expert alone.
In-court observers are the audience most likely to form the impression described in the introduction to the monograph: many witnesses, little apparent content, one witness who matters. Their impression is accurate as to what they saw and mistaken as to what it meant.
2.3 The Mediated Public
The largest audience never enters the courtroom. It encounters trials through news reports, broadcast coverage, documentaries, podcasts, and fictional drama. This audience sees what each medium selects, and every medium selects against foundation.
Federal courts prohibit the broadcasting of criminal proceedings, and the rules in state courts vary.[1] The Supreme Court held in 1965 that the circumstances of a particular televised trial had denied the defendant due process, and held in 1981 that the Constitution does not categorically prohibit states from permitting broadcast coverage.[2] Where trials are broadcast, the full proceeding may be available, but the audience that watches gavel-to-gavel coverage is small compared to the audience that sees edited segments. Where trials are not broadcast, the public relies on reporters’ summaries and later reconstructions.
3. What Is Edited Out, and Why
3.1 Narrative Economy
Every account of a trial shorter than the trial itself must omit most of what occurred. The principle of selection in nearly every medium is narrative significance: what advanced the story, what was disputed, what was surprising. Foundation testimony in an ordinary case satisfies none of these criteria. The custodian confirms that an item was logged on a particular date, the defense asks no questions, and nothing happens that a narrative can use.
The result is that the portion of the trial devoted to establishing the foundation of the evidence is systematically underrepresented in public accounts, while the portion devoted to its interpretation is overrepresented. This is not bias in the ordinary sense. It is the consequence of the fact that foundation, when it succeeds, produces no event.
3.2 Fictional Compression
Fictional crime drama compresses foundation further. Popular forensic dramas commonly depict a small team of investigators who collect evidence at the scene, analyze it in the laboratory, interpret the results, and in some cases confront the suspect with them. The laboratory pipeline is reduced to a single person or a few, the chain of custody is reduced to a transition between scenes, and the division between collection, analysis, and testimony disappears. Results arrive quickly and speak clearly.
The compression is a dramatic convenience, not a claim about how laboratories operate. But it supplies the public with a model of forensic work in which foundation is absent, and that model may be the only one many members of the public possess.
3.3 Documentary and Podcast Reconstruction
Documentaries and podcasts about criminal cases occupy an intermediate position. They are longer than news reports and often more detailed, and they frequently present themselves as corrective accounts that reveal what the original trial obscured. Their treatment of foundation depends on their narrative thesis. Where the thesis concerns the defendant’s guilt or innocence on grounds unrelated to physical evidence, foundation is ordinarily omitted. Where the thesis concerns the reliability of physical evidence, foundation becomes central, but it is presented as a site of suspicion rather than as a routine structure. This pattern is examined in Section 4.4.
4. Five Consequences of the Gap
4.1 Inflation of the Conclusion
When a forensic result is presented without its foundation, it appears to speak for itself. A report that DNA from a scene matched the defendant becomes, in public accounts, a fact about the defendant rather than the end of a chain that began with collection and passed through custody, extraction, amplification, and interpretation. The weaknesses that might attach to any link in that chain are invisible, and the conclusion acquires a certainty that the full chain may not support.
As White Paper 1 observed, the evidence with the heaviest foundation often supports the narrowest conclusion. A DNA result speaks to the source of biological material, not to how or when it was deposited. When the foundation is edited away, the narrowness of the conclusion is frequently edited away with it, and a statement about source is received as a statement about guilt.
4.2 Misreading Sequence as Corroboration
Where foundation is visible, as it is to jurors and in-court observers, it is vulnerable to the misreading described in White Paper 2. A procession of witnesses resembles a group of witnesses confirming one another. Ordinary experience teaches that more witnesses mean more assurance, and nothing in the courtroom ordinarily corrects that inference when the witnesses in fact form a sequence of single attestations. An observer who sees seven witnesses testify about a bag of powder may reasonably conclude that the result has been confirmed seven times, when in structural terms it has been established once through six links and a restatement.
4.3 Invisibility of Record Evidence
Record evidence admitted on certification is doubly invisible. It does not appear in public accounts because it produced no testimony, and it does not appear to jurors as a foundation question because it arrived without a witness. The public is therefore unlikely to know that some of the most consequential evidence in modern trials, such as telephone records used to establish location, enters without any person answering for its accuracy.
The consequence is an asymmetry of attention. Physical evidence, whose foundation is laborious and visible, attracts scrutiny. Record evidence, whose foundation is light and invisible, attracts little, even where the expert interpretation built on it is extensive and its conclusions broad. White Paper 3 observed that clerical and systemic errors in records are not confronted; the public, having no occasion to notice the records’ foundation, has no occasion to ask about such errors.
The rare instances in which record foundation has become publicly visible illustrate the point. A widely followed podcast about a Maryland murder case drew attention to a cover sheet accompanying a carrier’s subpoena response that cautioned against relying on certain call records for location. The document had been part of the records production but had not been the subject of testimony at trial, and it later became an issue in post-conviction litigation.[3] Whatever its ultimate significance in that case, the episode showed how little of a record’s foundation the public ordinarily sees, and how much attention a single foundation document can command once it is brought to light.
4.4 Foundation as a Site of Suspicion
When foundation does become publicly visible, it is usually because it has been attacked. The public encounters chain of custody not as a routine structure but as the ground on which a defense alleges contamination, mishandling, or planting.
The criminal trial of O. J. Simpson in 1995 is the most prominent example. The defense subjected the collection and handling of blood evidence to extended cross-examination, including days of questioning of a police criminalist about collection procedures, and argued that contamination and mishandling undermined the DNA results.[4] For a large public audience, the trial was an introduction both to forensic DNA and to the concept of chain of custody, and the two were introduced together as a problem.
A decade later, a widely viewed documentary series about a Wisconsin murder case devoted considerable attention to the defense theory that blood evidence had been planted, including the condition of a vial of the defendant’s blood held from an earlier case.[5] The prosecution offered testing intended to rebut the theory. The documentary brought custody questions before a very large audience, again in the form of an allegation.
The consequence is a pattern of public understanding that oscillates between two poles. In ordinary coverage, foundation is invisible and forensic results are received as unquestionable. In prominent contested cases, foundation becomes visible only as a site of suspected misconduct. The public rarely encounters foundation as what it is in most cases: a routine, largely uneventful structure whose purpose is to make misconduct and error detectable, and whose success is usually unremarkable.
4.5 Difficulty With Statistical Conclusions
Foundation supports conclusions that are often expressed statistically, particularly in DNA cases. Research on juror reasoning has documented characteristic errors in interpreting such statistics, including the confusion of the probability of a random match with the probability that the defendant is not the source, and the opposite error of treating a small random match probability as meaning that many people in a large population could equally be the source.[6] Research has also shown that the persuasive force of DNA statistics depends on how they are framed.[7]
These errors are not caused by the invisibility of foundation, but they compound it. A public that sees neither the chain nor the limits of the conclusion, and that misreads the statistic attached to the conclusion, is poorly positioned to evaluate forensic evidence at any level.
5. The CSI Effect Literature
Public and professional concern about the influence of media on jurors has often been expressed under the label of the “CSI effect,” after a popular forensic drama. In its most common form, the claim is that jurors exposed to such programs expect forensic evidence in every case and acquit when it is absent. A second form holds that such programs lead jurors to overvalue forensic evidence when it is present.
Empirical research has not strongly supported either claim in its simple form. A large juror survey found that jurors held high expectations for scientific evidence but that those expectations were not strongly associated with viewing forensic drama, and that they were better explained by a general awareness of technology, which the researchers termed a “tech effect.”[8] Experimental work has found that viewers of forensic drama may be more critical of forensic evidence in some respects, rather than more credulous.[9] Other scholars have argued that the CSI effect is better understood as a media narrative about juries than as a demonstrated phenomenon, and that the concern it expresses has shaped trial practice, such as prosecutors’ questioning of jurors and requests for special instructions, more than juror behavior has been shown to warrant.[10] Still others have analyzed the ways in which forensic fiction may shape the threshold of certainty viewers expect before convicting.[11]
For the purposes of this series, the literature supports a more modest conclusion than the popular concern. It does not establish that media exposure systematically distorts verdicts. It does suggest that the public forms expectations about forensic evidence from sources that omit foundation, and that jurors bring those expectations into the courtroom. The problem is better described as a gap in understanding than as a distortion of outcomes. Jurors may reach sound verdicts while misunderstanding the structure of the evidence on which they rely, and the public may accept or reject forensic evidence for reasons unconnected with how it was established.
6. The Gap Summarized
The following table summarizes what each audience sees of foundation testimony and what it is likely to understand.
| Element of foundation | Jurors see | Observers see | Mediated public sees | Commonly understood |
|---|---|---|---|---|
| Custody procession | All of it | Portions | Rarely | As corroboration, or as padding |
| Pipeline analysts | Those who testify | Portions | One analyst, if any | As one analysis checked many times |
| Records admitted on certification | Records only | Records only | Almost never | Not recognized as a foundation question |
| Expert interpretation | All of it | Often | Frequently | As the substance of the evidence |
| Statistical conclusions | Stated in testimony | Sometimes | Often, simplified | Frequently misinterpreted |
| Foundation under attack | When contested | When contested | In prominent cases | As a sign of misconduct |
The pattern is consistent across audiences. What is most visible is interpretation; what is least visible is the foundation on which interpretation rests. Where foundation is visible, it is misread; where it is invisible, it is presumed.
7. Implications
7.1 For Journalists
Trial reporters cannot report every foundation witness, and there is no reason they should. But reporting that conveys the nature of the foundation in a sentence or two, such as whether a result passed through several analysts, whether records were admitted on certification, or whether the defense stipulated to custody, would give readers a more accurate account of what the evidence established. Where the defense challenges foundation, reporting that distinguishes a challenge to a specific link from a general allegation of misconduct would help readers evaluate it.
7.2 For Documentary Producers and Podcasters
Long-form accounts have the time to present foundation as a routine structure rather than only as a site of suspicion. A documentary that devotes attention to custody only when alleging planting teaches its audience that custody matters only when something went wrong. An account that explains how the chain was built, which links were corroborated and which rested on single attestations, and what physical safeguards such as seals were present would allow the audience to evaluate allegations on their merits.
7.3 For Educators
Courses in criminal justice, forensic science, journalism, and civics can address the gap directly. The companion public primer in this suite, The Witnesses Nobody Watches, is designed for this purpose. Its chapters on chain of custody, record evidence, confrontation, witness lists, stipulations, corroboration and sequence, and what documentaries omit correspond to the elements of the gap identified here.
7.4 For Courts
Courts are the only institution that can address the gap for jurors. Brief orientation instructions explaining why foundation witnesses appear, what they establish, and how a chain of single witnesses differs from several witnesses to the same matter would equip jurors to evaluate what they see. An instruction noting that some records are admitted on certification without a witness would make visible to jurors what is otherwise invisible. White Paper 6 proposes model language for such instructions.
8. Limitations
This paper relies on the existing literature on juror perception and media influence, which consists largely of surveys and experiments whose generalizability to actual trials is debated. It does not present original data on how foundation testimony is reported or perceived. Its discussion of particular cases is limited to their role in making foundation publicly visible and does not address the merits of any verdict or post-conviction claim. Media practices vary widely, and the general tendencies described here will not hold for every news outlet, documentary, or program.
9. Conclusion
The witnesses who lay the foundation for forensic evidence are invisible to most of the public and misunderstood by most of those who see them. The media through which trials reach the public select for interpretation and against foundation, because foundation, when it succeeds, produces no event. Fictional drama compresses the laboratory pipeline into a single figure. Long-form accounts make foundation visible chiefly when alleging that it failed.
The consequences are a public that receives forensic conclusions without their limits, jurors who may read a sequence of single witnesses as mutual confirmation, an audience that rarely knows that consequential records enter on paper, and a pattern of understanding that treats foundation either as nonexistent or as evidence of conspiracy. The research on media influence does not show that these misunderstandings routinely alter verdicts. It does show that the public’s picture of forensic evidence is drawn from sources that omit the structure on which that evidence depends.
Closing the gap does not require that foundation be made dramatic. It requires that it be made intelligible. The final paper in this series gathers the recommendations of the preceding five, including measures directed at that end.
Notes
[1] Fed. R. Crim. P. 53.
[2] Estes v. Texas (1965); Chandler v. Florida (1981).
[3] Koenig (2014) brought the cover sheet to public attention. The issue was raised in post-conviction proceedings; see Syed v. State (2018), in which the intermediate appellate court addressed the claim concerning the cell tower cover sheet alongside the alibi claim on which relief was then granted. Subsequent proceedings in the case are not discussed here.
[4] Toobin (1996) provides a detailed account of the trial, including the defense’s challenges to evidence collection and handling.
[5] Ricciardi and Demos (2015).
[6] Thompson and Schumann (1987) identified and named the “prosecutor’s fallacy” and the “defense attorney’s fallacy” in the interpretation of statistical evidence.
[7] Koehler (2001).
[8] Shelton, Kim, and Barak (2006).
[9] Podlas (2006); Schweitzer and Saks (2007).
[10] Cole and Dioso-Villa (2009).
[11] Tyler (2006).
References
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