Emmanuel Ford Robinson v. State of Maryland, No. 11, September Term 2013.

CRIMINAL PROCEDURE - JURY                         INSTRUCTIONS-           SCIENTIFIC        OR
INVESTIGATIVE TECHNIQUES

In light of Atkins v. State, 421 Md. 434, 26 A.3d 979 (2011) and Stabb v. State, 423 Md. 454,
31 A.3d 922 (2011) the Court of Appeals held that the trial judge erred, in giving an
instruction that “there is no legal requirement that the State utilize any specific investigative
technique or scientific test to prove its case.” In accordance with Atkins and Stabb, an “anti-
CSI effect” instruction, to be given only in a curative fashion, shall not be entertained
without legal and empirical proof that a “CSI effect” exists and is only triggered when a
material misstatement of law occurs. The giving of the contested instruction, where the
defense counsel merely pointed out what procedures might have been available to the State,
but did not misstate the law or the State’s burden, effectively relieved the State of its burden
to prove the defendant’s guilt beyond a reasonable doubt.
EMMANUEL FORD ROBINSON                         *       In the

                                               *       Court of Appeals
   v.
                                               *       of Maryland

                                               *       No. 11

STATE OF MARYLAND                              *       September Term, 2013


                                        ORDER


        The Court having considered the motion for reconsideration filed in the above-captioned

case, it is this 27th day of January, 2014,

        ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring,

that the motion be, and it is hereby, granted, and it is further

        ORDERED, that the opinion in this case filed on November 27, 2013 be, and it is

hereby, recalled and a new opinion filed simultaneously with this order shall replace the opinion

on November 27, 2013.



                                                                   /s/ Mary Ellen Barbera
                                                                        Chief Judge
  IN THE COURT OF APPEALS OF

            MARYLAND

                No. 11

        September Term, 2013

ON MOTION FOR RECONSIDERATION


  EMMANUEL FORD ROBINSON

                  v.

      STATE OF MARYLAND


           Barbera, C.J.
           Harrell
           Battaglia
           Greene
           Adkins
           McDonald
           Watts,

                  JJ.


      Opinion by Battaglia, J.
   McDonald, and Watts, JJ., dissent.


        Filed: January 27, 2014
       In the present case, we are asked to consider whether, in light of Atkins v. State, 421

Md. 434, 26 A.3d 979 (2011) and Stabb v. State, 423 Md. 454, 31 A.3d 922 (2011), a jury

instruction in which the trial judge stated:

                     During this trial, you’ve heard testimony of witnesses and
              may hear argument of counsel that the State did not utilize a
              specific investigative technique or scientific tests. You may
              consider these facts in deciding whether the State has met its
              burden of proof. You should consider all of the evidence or lack
              of evidence in deciding whether the defendant is guilty.
              However, I instruct you that there is no legal requirement that
              the State utilize any specific investigative technique or scientific
              test to prove its case. Your responsibility as jurors is to
              determine whether the State has proven based upon the
              evidence, the defendant’s guilt beyond a reasonable doubt.

(emphasis added) constituted reversible error when a defense counsel remarked in opening

statement:

              There will not be any fingerprints from any door, any piece of
              paper or tape, or whatever they’re saying, on any
              weatherstripping, on the doors, no fingerprints of his. There
              won’t be [the defendant’s] DNA on anything, not on any
              screwdriver, not on any weatherstripping, not on any piece of
              tape, not on anything. Quite frankly, there’s just not, there’s
              absolutely no evidence beyond a reasonable doubt that Mr.
              Robinson committed these crimes.

In giving the contested instruction, the judge also noted, “what may actually have been off

the record, which was our colloquy when we were preparing instructions, it’s my

understanding that the defense may be arguing, as good defense attorneys do, that there
wasn’t any scientific link of the defendant to the crime.” 1

       We granted certiorari, Robinson v. State, 430 Md. 11, 59 A.3d 506 (2013), to consider

the following questions, which we have renumbered:2

               1. Did the trial court abuse its discretion in providing to the jury,
               over objection, a “scientific or investigative techniques”
               instruction where defense counsel merely stated in opening
               statement that the lack of physical evidence demonstrated the
               absence of proof beyond a reasonable doubt, where defense
               counsel never mischaracterized the law, and where the trial
               court gave the instruction preemptively because defense counsel
               “may be arguing, as good defense attorneys do, that there wasn’t
               any scientific link of the defendant to the crime”?

               2. Where a co-defendant who entered a plea of guilty testified
               as a defense witness at Petitioner’s trial two weeks later, did the
               trial court err in permitting the State, in the guise of cross-
               examination of the co-defendant, to effectively read into the
               record a statement of facts proffered at the co-defendant’s guilty
               plea hearing but never adopted by the co-defendant?

       We shall hold that the trial court erred in giving the jury the “scientific or investigative

techniques”3 instruction in this case.4


       1
         Although the judge referred to a colloquy regarding proposed jury instructions with
defense counsel, any transcription regarding the interaction, if there was one made, was not
included in the record. There is no indication in the record regarding who suggested the
inclusion of the contested instruction.
       2
           Because of our disposition of the first question, we need not address the second.
       3
         The “scientific or investigative techniques” jury instruction is also referred to as an
“anti-CSI effect” or “no duty” jury instruction. Stabb v. State, 423 Md. 454, 456-57, 31 A.3d
922, 923 (2011). “The ‘CSI effect’ refers generally to various theories that assert that
exposure to courtroom or criminal investigative fictional media may influence jurors’
objective evaluation of an actual trial.” Id. at 467, 31 A.3d at 930. The term “no duty” refers
                                                                                   (continued...)

                                                2
(...continued)
to the instruction that there is “no legal requirement that the State utilize any specific
investigative technique or scientific test to prove its case.” Id. at 456-57, 31 A.3d at 923.
       4
          The State urges any error was harmless because the jury acquitted Robinson of
second degree burglary and attempted second degree burglary and convicted Robinson of
conspiracy to commit first degree burglary. The State argues, therefore, “the presence or
absence of forensic evidence in no way could have influenced the jury’s verdict.”
Essentially, the State asserts that the conviction for conspiracy did not implicate proof of the
presence of forensic evidence and so the “anti-CSI” instruction was mere surplusage.
       We have had occasion to review whether an error was harmless, when a jury
instruction was invoked, and have opined:

                      When an appellant, in a criminal case, establishes error,
                      unless a reviewing court, upon its own independent
                      review of the record, is able to declare a belief, beyond
                      a reasonable doubt, that the error in no way influenced
                      the verdict, such error cannot be deemed “harmless” and
                      a reversal is mandated. Such reviewing court must thus
                      be satisfied that there is no reasonable possibility that the
                      evidence complained of – whether erroneously admitted
                      or excluded – may have contributed to the rendition of
                      the guilty verdict.

              In performing a harmless error analysis, we are not to find facts
              or weigh evidence. Instead, “what evidence to believe, what
              weight to be given it, and what facts flow from that evidence are
              for the jury . . . to determine.” “ ‘Once it has been determined
              that error was committed, reversal is required unless the error
              did not influence the verdict; the error is harmless only if it did
              not play any role in the jury’s verdict. The reviewing court must
              exclude that possibility beyond a reasonable doubt.’ ” “ ‘To say
              that an error did not contribute to the verdict is, rather, to find
              that error unimportant in relation to everything else the jury
              considered on the issue in question, as revealed by the record.’
              ” The “harmless error rule . . . has been and should be carefully
              circumscribed.” Harmless error review is the standard of review
              most favorable to the defendant short of an automatic reversal.
                                                                                      (continued...)

                                                3
       In the present case, Emmanuel Ford Robinson, Petitioner, was charged in a six count

indictment5 with various crimes related to events that occurred in Montgomery County,


(...continued)
Tucker v. State, 407 Md. 368, 383, 965 A.2d 900, 908-09 (2009), quoting Bellamy v. State,
403 Md. 308, 332-33, 941 A.2d 1107, 1121 (2008), quoting in turn Dorsey v. State, 276 Md.
638, 659, 350 A.2d 665, 678 (1976) (ellipses in original). In Tucker, we determined that a
cross-racial identification instruction given in error could not be deemed harmless because
the instruction addressed testimony critical to the case, which was “tainted by the discounting
of any potentially adverse effect of cross-racial bias in the erroneous instruction.” Id. at 383,
965 A.2d at 909.
         In the instant case, the instruction had not been generated by the defense attorney, so
the trial judge erred in giving the instruction. That the error was not harmless was
compounded by the fact that the physical evidence to which it applied, the only evidence
provided other than testimony, was so critical to the case.
       5
           The indictment contained six charges:

               C O U N T O N E: ATTEM PTED SECOND DEGREE
               BURGLARY
                      The Grand Jurors of the State of Maryland, for the body
               of Montgomery County, upon their oaths and affirmations,
               present that ROLAND D SPENCE and EMMA[N]UEL
               FORD ROBINSON, on or about February 28, 2011, in
               Montgomery County, Maryland, did attempt to break and enter
               the storehouse of Avalon at Grosvenor Station Apartments,
               located at 10306 Strathmore Hall Street, North Bethesda,
               Maryland, with intent to commit theft, in violation of the
               Common Law against the peace, government, and dignity of the
               State.

               COUNT TWO: CONSPIRACY TO COMMIT SECOND
               DEGREE BURGLARY
                      The Grand Jurors of the State of Maryland, for the body
               of Montgomery County, upon their oaths and affirmations,
               present that ROLAND D SPENCE and EMMA[N]UEL
                                                                                   (continued...)

                                               4
(...continued)
                 FORD ROBINSON, on or about February 28, 2011, in
                 Montgomery County, Maryland, did conspire to commit second
                 degree burglary, in violation of the Common Law against the
                 peace, government, and dignity of the State.

                 COUNT THREE: SECOND DEGREE BURGLARY
                        The Grand Jurors of the State of Maryland, for the body
                 of Montgomery County, upon their oaths and affirmations,
                 present that ROLAND D SPENCE and EMMA[N]UEL
                 FORD ROBINSON, on or about February 28, 2011, in
                 Montgomery County, Maryland, did break and enter the
                 storehouse of Inigo’s Crossing Apartments, located at 5405
                 Tuckerman Lane, North Bethesda, Maryland, with intent to
                 commit theft, in violation of Section 6-203(a) of the Criminal
                 Law Article against the peace, government, and dignity of the
                 State.

                 COUNT FOUR: CONSPIRACY TO COMMIT SECOND
                 DEGREE BURGLARY
                        The Grand Jurors of the State of Maryland, for the body
                 of Montgomery County, upon their oaths and affirmations,
                 present that ROLAND D SPENCE and EMMA[N]UEL
                 FORD ROBINSON, on or about February 28, 2011, in
                 Montgomery County, Maryland, did conspire to commit second
                 degree burglary, in violation of the Common Law against the
                 peace, government, and dignity of the State.

                 COUNT FIVE: ATTEMPTED FIRST DEGREE BURGLARY
                        The Grand Jurors of the State of Maryland, for the body
                 of Montgomery County, upon their oaths and affirmations,
                 present that ROLAND D SPENCE and EMMA[N]UEL
                 FORD ROBINSON, on or about February 28, 2011, in
                 Montgomery County, Maryland, did attempt to attempt to break
                 and enter the dwelling house of Robert Eshan, located at 5405
                 Tuckerman Lane, Apartment 556, North Bethesda, Maryland,
                 with the intent to commit theft in violation of the Common Law
                                                                                  (continued...)

                                               5
Maryland, on February 28, 2011. He was eventually convicted of conspiracy to commit first

degree burglary.6

       The State’s theory of the case was that Robinson “tried to break into one apartment

building with another young man by the name of Roland Spence [and] was unsuccessful. He

then went across Route 355[7] and [broke] into a second [building] . . . and then he tried to


(...continued)
                 against the peace, government, and dignity of the State.

                 COUNT SIX: CONSPIRACY TO COMMIT FIRST DEGREE
                 BURGLARY
                        The Grand Jurors of the State of Maryland, for the body
                 of Montgomery County, upon their oaths and affirmations,
                 present that ROLAND D SPENCE and EMMA[N]UEL
                 FORD ROBINSON, on or about February 28, 2011, in
                 Montgomery County, Maryland, did conspire to commit first
                 degree burglary, in violation of the Common Law against the
                 peace, government, and dignity of the State.
       6
           After the State presented its case, the judge took under advisement Robinson’s
motion for acquittal of Counts Two, Four, and Five. The judge, thereafter, granted
Robinson’s motion for acquittal with respect to Count Four, concluding that “in view of the
fact that there are two separate charges of conspiracy to commit a second degree burglary and
that the defendant did request a bill of particulars which the State chose not to answer or said
didn’t apply here, leads me to conclude that the State shouldn’t have the benefits of two
conspiracies. I do believe it’s thereby duplicitous to charge it two different times.” The
judge granted defense counsel’s motion for judgment of acquittal of Count Five, determining
that, “it simply doesn’t charge an offense because there’s no crime called an attempt to
attempt” and could not be amended because it was a “non-offense.” The judge denied the
motion as to Count Two. Ultimately, Count Six, conspiracy to commit first degree burglary,
became Count Four.
       7
        Maryland Route 355 (Wisconsin Avenue) is the main commercial corridor that runs
from North to South through Bethesda, Maryland. See Montgomery County Department of
Transportation, available at http://www.montgomerycountymd.gov/dot-tmc/cam.html#routes
                                                                          (continued...)

                                                6
break into an apartment in that building.” During his opening statement, Robinson’s attorney

asserted that there was no evidence of wrongdoing by his client:

              [T]his is a case about speculation. You’re not going to hear any
              witness come in and say that they saw Emmanuel Robinson
              attempt to pry open any door, attempt to break and enter
              anywhere, or break and enter into anything. . . .

                                    *      *       *

                      The evidence in this case, you’ll find, is so inconsistent
              and so unreliable that without guessing or filling in holes,
              speculating – which you cannot do, and His Honor will tell you
              that later – you will more than likely have many more questions
              than answers as to what really happened on February 28th. You
              will have very reasonable doubts and many of them, and it only
              takes one. What we expect the evidence in this case to show is
              that Mr. Robinson is not guilty of any of the charges, that there
              is no evidence to show that he pried open or broke into any door.

                     There is no evidence that he ever attempted to pry open
              or break into any door. There will be no evidence to show that
              he ever had a screwdriver on him or any kind of tool like that.
              There will not be any fingerprints from any door, any piece of
              paper or tape, or whatever they’re saying, on any
              weatherstripping, on the doors, no fingerprints of his. There
              won’t be his DNA on anything, not on any screwdriver, not on
              any weatherstripping, not on any piece of tape, not on anything.
              Quite frankly, there’s just not, there’s absolutely no evidence
              beyond a reasonable doubt that Mr. Robinson committed these
              crimes.

                      Another thing is that we expect the evidence will show
              that there will be no witness who will be able to come in and tell
              you that they saw Mr. Robinson attempt to get into any of these,
              into any of these doors; that he was the one doing anything. The


(...continued)
(last visited Nov. 25, 2013).

                                               7
              best they’ll be able to say is they believe that was Mr. Robinson
              who was present. And His Honor will instruct you later about
              mere presence at the scene of a situation where somebody may
              be committing a crime.

(emphasis added). Testimony of two police officers, called to the stand by the State, put

Spence at the scene of the crime and Robinson in the area, leaving with Spence, after which

they both were detained by the police. Defense counsel cross-examined the surveillance

team officers8 called by the State whether casting for tool mark impressions had been

accomplished or fingerprint and DNA testing requested, as well as questioned a Montgomery

County Police Department forensic specialist9 as to whether casting for tool mark

impressions had been performed, to which she responded in the negative. No rebuttal

testimony was offered by the State before jury instructions were entertained, although,

apparently, there was discussion that had occurred among the judge and counsel regarding

the proposed jury instructions.

       At the close of all of the evidence but before argument, the judge instructed the jury:

                      During this trial, you’ve heard testimony of witnesses and


       8
           Robinson’s counsel questioned two officers from the surveillance team: an
investigating officer who responded to the crime scene and an officer who arrested Robinson
and Spence. The investigating officer was questioned whether the door of the apartment had
been tested for fingerprints or DNA and whether casting was done on the door for tool mark
impressions. The officer who arrested Robinson was questioned as to whether the
screwdriver recovered from Spence was compared to pry marks at the door.
       9
         The forensic specialist testified as to her role as: “My job is to respond to all crime
scenes in Montgomery County. I document the scenes with photographs. Sometimes we use
videos or sketches. I have to identify, package, process, and transport evidence from the
scenes.”

                                               8
              may hear argument of counsel that the State did not utilize a
              specific investigative technique or scientific tests. You may
              consider these facts in deciding whether the State has met its
              burden of proof. You should consider all of the evidence or lack
              of evidence in deciding whether the defendant is guilty.
              However, I instruct you that there is no legal requirement that
              the State utilize any specific investigative technique or scientific
              test to prove its case. Your responsibility as jurors is to
              determine whether the State has proven based upon the
              evidence, the defendant’s guilt beyond a reasonable doubt.

(emphasis added). Defense counsel objected to the specific instruction in a bench conference

following the giving of all the instructions:

              And as to the non-pattern instruction as to police investigative
              techniques, I object to that instruction being given. I don’t
              believe that the evidence in the case has warranted that such an
              instruction be given and other than a standard argument given
              with regard to the absence of evidence to convict my client, I
              don’t believe that there’s any other justification for giving that
              instruction in this case.

The court replied:

                     All right, well, based upon the opening statement in
              which it was suggested that there wasn’t any fingerprint or DNA
              evidence, and then what may actually have been off the record,
              which was our colloquy when we were preparing instructions,
              it’s my understanding that the defense may be arguing, as good
              defense attorneys do, that there wasn’t any scientific link of the
              defendant to the crime. So I think it’s generated by the
              proffered arguments here and I’ll note your objection and
              overrule it.

In closing, defense counsel, in fact, argued:

                     And we would submit that the testing that’s been done in
              this case and what was done in this case and quite frankly, just
              some of the examples of the carelessness in the investigation

                                                9
               and just how loose the investigators were with the facts in this
               case and the conclusions that they jumped to in this case would
               suggest to you that the State has not proven its case beyond a
               reasonable doubt here.

                        There has been no evidence presented in this case that
               Mr. Robinson pried open or broke in a door, that he ever
               attempted to pry in or break into any door, that he ever had any
               screwdriver or tool on him, that his fingerprints are on any door,
               screwdriver, tape, weatherstripping or anything, that his DNA
               was on any of those items. There’s just absolutely no evidence
               in this case beyond a reasonable doubt that Emmanuel Robinson
               committed these crimes.

After the jury found only Robinson guilty of conspiracy to commit first degree burglary, the

judge imposed a sentence of ten years’ incarceration, with all but four years suspended,

followed by two years’ probation.

       Robinson noted a timely appeal to the Court of Special Appeals,10 which affirmed the

conviction in an unreported opinion, determining:



       10
          Robinson presented the following three questions to the Court of Special Appeals
for review:

               1. Did the trial court err by offering, over objection, an
               “investigative or scientific techniques” jury instruction?

               2. Did the trial court err in admitting facts proffered by the State
               at [a defense witness]’s recent plea hearing that implicated
               [appellant] in the burglaries and in allowing the State to question
               [the witness] about those facts?

               3. Did the trial court abuse its discretion by giving a missing
               witness jury instruction, over defense objection?

(alterations in original).

                                               10
              [defense counsel] was entitled to – and did – point out what
              procedures were available to investigators, he went beyond that
              and attributed an incorrect burden to the State, which required
              correction by the court . . . [and] while the instruction was not
              given in conjunction with an explanation of the State’s burden
              to prove guilt beyond a reasonable doubt, the instruction
              correctly stated that proof beyond a reasonable doubt does not
              require a specific investigative technique or scientific evidence.

We, then, granted certiorari.

       In this case, we take the opportunity to more fully elucidate the Atkins and Stabb

standards that an “anti-CSI effect” instruction, limited only to curative administration, shall

not be entertained without legal and empirical proof that a “CSI effect” exists and is only

triggered when a material misstatement of the law occurs. We determine that the trial court

erred in the instant case by giving the contested instruction.

       It is important to place the case sub judice in the context of the development of the

theory of the “CSI effect”11 and its treatment by us and the Court of Special Appeals since

2002. The term “CSI effect” arose in 2002,12 in response to the increased popularity of


       11
          The “CSI effect” refers to a theorized link between television crime scene dramas
and an expectation by jurors for forensic or scientific evidence, such as DNA, in most
criminal cases. Judge Donald E. Shelton, Juror Expectations for Scientific Evidence in
Criminal Cases: Perceptions and Reality About the “CSI Effect” Myth, 27 T.M. Cooley L.
Rev. 1, 3 (2010) (“As these shows proliferated, prosecutors complained that all of the
television fiction about forensic-science evidence made jurors expect too much of the
government and that juries were wrongfully acquitting defendants when the prosecution did
not present the kind of evidence that they saw on CSI; the news media picked up on these
complaints, accepted them as factual, and quickly labeled it the ‘CSI Effect.’”).
       12
        Jeffrey Kluger, How Science Solves Crimes, Time, Oct. 21, 2002; Robin Franzen,
TV’s “CSI” Crime Drama Makes It Look Too Easy, The Oregonian, Dec. 10, 2002, available
                                                                          (continued...)

                                              11
forensic crime television shows and complaints that these shows were heightening juror

expectations that forensic evidence, like DNA, would be admitted in criminal trials. See

Jenny Wise, Providing the CSI Treatment: Criminal Justice Practitioners and the CSI Effect,

21 Current Issues Crim. Just. 383, 383-84 (2010); Simon A. Cole & Rachel Dioso-Villa,

Investigating the ‘CSI Effect’ Effect: Media and Litigation Crisis in Criminal Law, 61 Stan.

L. Rev. 1335, 1338-39 (2009). A 2005 survey13 of 102 prosecutors in Maricopa County,

Arizona, found that an overwhelming majority felt that jurors “expected to be presented with

scientific evidence.” Andrew P. Thomas, The CSI Effect: Fact or Fiction, 115 Yale L. J.

Pocket Part 70, 71 (2006), http://www.yalelawjournal.org/images/pdfs/32.pdf. In a 2006

survey,14 1,027 prospective jurors were questioned regarding their television watching habits,

pre-trial expectations of types of evidence to be provided, and the likelihood that different


(...continued)
at 2002 WLNR 13048250.
       13
          Maricopa County Attorney’s Office, CSI: Maricopa County: The CSI Effect and
its Real-Life Impact on Justice, A Study by the Maricopa County Attorney’s Office at 5,
http://www.ce9.uscourts.gov/jc2008/references/csi/CSI_Effect_report.pdf (2005) (noting that
thirty-eight percent of prosecutors surveyed “believed they had at least one trial which
resulted in either an acquittal or hung jury because forensic evidence was not available”).
       14
          The survey was conducted by Judge Donald E. Shelton, Chief Judge for the
Twenty-Second Circuit Court of Michigan and faculty member of Eastern Michigan
University, Young S. Kim, Assistant Professor of Criminology at Eastern Michigan
University, and Gregg Barak, Professor of Criminology & Criminal Justice at Eastern
Michigan University. The questionnaire was administered to 1,027 jurors “prior to any jurors
being dispatched to courtrooms for selection in any type of case [and the] group was advised
by the presiding judge that the information on the surveys was for academic and research
purposes only and that it would have no bearing on whether they were selected for jury duty
in any case.” Shelton, supra, at 343.

                                             12
types of evidence would affect their reasonable doubt determination; the author concluded

that “[w]hile the study did find significant expectations and demands for scientific evidence,

there was little or no indication of a link between those inclinations and watching particular

television shows.” Judge Donald E. Shelton et al., A Study of Juror Expectations and

Demands Concerning Scientific Evidence: Does the “CSI Effect” Exist?, 9 Vand. J. Ent. &

Tech. L. 331, 333 (2006). That same year a Fordham law journal report, concluded that,

based on a survey of 306 jury eligible graduate and undergraduate students, who responded

to questions regarding their television viewing habits and a mock criminal law scenario, the

so-called “CSI effect” did not affect jury verdicts.15 Kimberlianne Podlas, “The CSI Effect”:

Exposing the Media Myth, 16 Fordham Intell. Prop. Media & Ent. L.J. 429 (2006). A survey

conducted at Arizona State University of forty-eight jury eligible university students,

suggested that viewing “CSI-type” programs might have affected jurors’ expectations for

forensic evidence but likely did not affect verdicts, based on the students’ responses to

forensic evidence presented in a simulated transcript of a criminal trial.16 N.J. Schweitzer


       15
          The survey identified participants as “CSI viewers” or “non-CSI viewers” and
provided participants with a crime scene scenario, asking them to elect “guilty” or “not
guilty” and chose from eight possible factors that contributed to their verdict determination.
Four of the eight factors were deemed “CSI marked” factors, to see if there was a correlation
between CSI viewing and reliance on “CSI marked” factors. Podlas, supra, at 455-60.
       16
         The survey was conducted by a Ph.D. candidate in the Department of Psychology,
N.J. Schweitzer, at Arizona State University, and Michael J. Saks, a Professor of Law and
Psychology and Faculty Fellow at the Center for the Study of Law, Science, and Technology,
Sandra Day O’Connor College of Law, Arizona State University, for publication in the
Sandra Day O’Connor College of Law journal, Jurimetrics: The Journal of Law, Science,
                                                                               (continued...)

                                             13
& Michael J. Saks, The CSI Effect: Popular Fiction About Forensic Science Affects the

Public’s Expectations About Real Forensic Science, 47 Jurimetrics 357 (2007). Results,

thus, remained inconclusive as to the existence of a “CSI effect” and largely suggested that

while jurors seem to have increased expectations regarding admission of forensic evidence,

it had not been shown that these expectations were the result of viewing CSI type programs

or that watching CSI type programs affected a juror’s likelihood to acquit or convict.

       In 2007, the Court of Special Appeals was called upon to address whether giving an

“anti-CSI effect” instruction was error in Evans v. State, 174 Md. App. 549, 922 A.2d 620,

cert. denied, 400 Md. 648, 929 A.2d 890 (2007).17 Evans was charged with possession and

distribution of heroin as a result of an undercover “buy-bust.” Id. at 553, 922 A.2d at 623.

At trial, Evans’s counsel cross-examined the detectives as to specific investigative techniques

that were not used and argued that without video or audio surveillance tapes, “cross-checks


(...continued)
and Technology.
       17
            In Evans, the court considered:

                1. Whether the trial court erred in failing to suppress evidence
                illegally obtained from appellant in a search incident to an arrest
                made without probable cause[.]

                2. Whether the trial court erred in instructing the jury on the
                State’s failure to use certain investigative and scientific
                techniques, where the instruction hampered appellant’s ability
                to present his legal defense and was not part of the Maryland
                Pattern Criminal Instructions[.]

Evans, 174 Md. App. at 553, 922 A.2d at 622 (alterations in original).

                                                14
of reliability,” there was “no other real ways to prove [what occurred] because the arrest

team, the lack of any video surveillance evidence, whatever, none of that, absolutely none

of that exists in this case.”18 Id. at 563, 922 A.2d at 628. Evans’s co-defendant further

argued, “[y]ou have a situation where there are absolutely no scientific tests that implicate

my client in any way. There’s no audio. There’s no video. There’s no fingerprints. There

is nothing.” Id. at 564, 922 A.2d at 629. The judge issued, upon the State’s request, an

identical instruction to the one at issue in the present case.19 Id. at 562, 922 A.2d at 628.


       18
            Evans’s counsel argued:

                        There are very significant facts in this case that create
                reasonable doubt that my client and [Peaks’ Counsel] client
                were acting in a conspiracy, in concert to distribute drugs. Now,
                one factor in this case is whether or not there are any cross-
                checks of reliability. Cross-checks of reliability means that
                apart from the testimony of one officer who is telling you what
                he claims happened, are there any other cross-checks of
                reliability? Well, we know in this case that there is no video of
                this event, no surveillance tapes of this event. There were
                questions asked of the detective whether that may have been a
                possibility, could have broken out a video camera, worn an
                audio, was it available. I think that could have been done. It
                wasn’t done here. That would have been a cross-check of
                reliability so that besides the testimony of the detective, you
                would have something else to cross-check.

Evans, 174 Md. App. at 563, 922 A.2d at 628 (alterations in the original).
       19
            The judge instructed:

                During this trial, you have heard testimony of witnesses and may
                hear argument of counsel that the State did not utilize a specific
                investigative technique or scientific test. You may consider
                                                                                     (continued...)

                                               15
Evans challenged the instruction in the Court of Special Appeals; the intermediate appellate

court determined that giving the instruction was not an abuse of discretion, because of the

“robust and vehement” arguments of counsel that guilt could not be proven without scientific

or investigative evidence. Id. at 570-71, 922 A.2d at 632-33.

       Four years after Evans issued, we heard oral argument in Atkins v. State, 421 Md. 434,

26 A.3d 979, on April 7, 2011, after which, within four months, the instruction was given in

the present case. Less than one month after the instant trial concluded, we issued our opinion

in Atkins, setting forth our standard for evaluating the giving of an “anti-CSI effect”

instruction. In the case, Atkins had been convicted by a jury of three counts of second degree

assault. The State’s theory of the case had been that Atkins attacked three others in a

physical altercation, during which Atkins reached into his pocket, according to a witness,

after which the victim suffered a serious injury from a stab wound. The State argued at trial

that a 12-inch knife recovered by police from a search of Atkins’s home was the weapon

used in the commission of the crime. Atkins had claimed he used a smaller folding pocket



(...continued)
                 these facts in deciding whether the State has met its burden of
                 proof. You should consider all of the evidence or lack of
                 evidence in deciding whether a defendant is guilty. However, I
                 instruct you that there is no legal requirement that the State
                 utilize any specific investigative technique or scientific test to
                 prove its case. Your responsibility as jurors is to determine
                 whether the State has proven, based on the evidence, the
                 defendants’ guilt beyond a reasonable doubt.

Id. at 562, 922 A.2d at 628 (emphasis added).

                                                16
knife, in self-defense during the attack, rather than the larger knife introduced by the State.

       During trial, Atkins’s counsel cross-examined the officers regarding whether forensic

testing had been done on the 12-inch knife. The State, in response, requested an instruction

identical to the instruction given in the present case, which issued.20 Atkins appealed to the

Court of Special Appeals, arguing that the giving of the instruction was an abuse of

discretion by the trial judge. The intermediate appellate court, in an unreported opinion,

relying on Evans, determined that in light of cross-examination by Atkins’s counsel, the

instruction was appropriate, “a correct statement of the law, applicable to the facts, and not

fairly covered by the other instructions given.”

       We granted certiorari to determine: “Whether an instruction that the State need not use

certain investigative and scientific techniques violated the Sixth and Fourteenth Amendments

and the Maryland Declaration of Rights by undermining the defense’s legitimate strategy and



       20
            The trial judge instructed:

                During this trial, you have heard testimony of witnesses and may
                hear argument of counsel that the State did not utilize a specific
                investigative technique or scientific test. You may consider
                these facts in deciding whether the State has met its burden of
                proof. You should consider all of the evidence or lack of
                evidence in deciding whether the defendant is guilty. However,
                I instruct you that there is no legal requirement that the State
                utilize any specific investigative technique or scientific test to
                prove its case. Your responsibility as jurors is to determine
                whether the State has proven based upon the evidence the
                defendant’s guilt beyond a reasonable doubt.

Atkins, 421 Md. at 441-42, 26 A.3d at 982-83 (emphasis added).

                                               17
bolstering the State’s case?” Atkins, 421 Md. at 437, 26 A.3d at 980. We answered that the

judge abused her discretion when she gave the contested “anti-CSI effect” instruction,

“because it resulted in a non-neutral commentary on the evidence, or the absence of evidence,

actually admitted, and invaded the province of the jury, thus violating Atkins’s constitutional

rights to due process and a fair trial.” Id. at 437, 26 A.3d at 980. We distinguished the Court

of Special Appeals’s opinion in Evans, because, in Atkins, scientific testing concerned a

critical piece of physical evidence, the weapon used in the assault, while in Evans the failure

of the State to provide forensic testing was not a crucial issue in the case. Additionally, we

noted, unlike Evans, that Atkins did not argue lack of evidence in closing and only briefly

cross-examined the police officer regarding lack of testing.

       Within three months our opinion in Stabb issued, to “provide additional guidance to

Bench and Bar when confronted with requests (usually from the State) for this (or a similar)

type of jury instruction seeking to avert the purported ‘CSI effect.’” 423 Md. at 457, 31 A.3d

at 923. Stabb had been charged with third-degree sexual assault and second-degree assault

of a minor. During trial, the child testified that Stabb touched her inappropriately; the

officer, who responded to the complaint, testified that he referred the minor and her mother

to a social worker but did not refer the minor for medical treatment, because vaginal

penetration had not been alleged. Stabb questioned the social worker during trial as to

whether she had referred the minor for medical testing for evidence of a sexual assault, which

had not occurred, because the victim had bathed and changed clothes by the time she was



                                              18
evaluated by the social worker.

       At the end of the case, the judge gave the same instruction given in Evans, Atkins, and

in the instant case, based upon Stabb’s cross-examination and in anticipation of closing

argument, after which Stabb was convicted. After the Court of Special Appeals affirmed,

we granted certiorari to consider: “Did the trial court err in instructing the jury that there is

no legal requirement that the State utilize any specific investigative technique or scientific

test to prove its case?” Id. at 462, 31 A.3d at 927.

       Based on Atkins, we concluded in Stabb that the giving of an “anti-CSI effect”

instruction was error and that the existence of a “CSI effect” had not been empirically or

legally established. We noted, rather, that “CSI” studies performed on mock jurors and

potential jurors reported inconsistent results and were inconclusive.21 Further, we determined

that the giving of the instruction in Stabb was error, because Stabb had “argued properly and

without undue emphasis the lack of corroborating physical evidence of the crime” and

permissibly alluded to the absence of corroborating physical evidence but did not imply that

the “missing evidence” would favor the defense, id. at 471-72, 31 A.3d at 932; thus, giving



       21
          The primary consistency among researchers’ conclusions was the opinion that more
research was needed. See Stabb, 423 Md. at 468-69, 31 A.3d at 930, citing Lindy A. Orthia,
et at., How Do People Think About the Science They Encounter in Fiction? Undergraduates
investigate responses to science in The Simpsons, Int’l J. Of Sci. Educ., Part B., Abstract,
available at http://www.tandfonline.com/doi/abs/10.1080/21548455.2011.610134; Dante E.
Mancini, The CSI effect reconsidered: is it moderated by the need for cognition?, N. Am. J.
Psychol. (Mar. 2011); Amber L. Ferris, Examining the “CSI Effect”: The Impact of Crime
Drama Viewership on Perceptions of Forensics and Science (Aug. 2011) (unpublished Ph.D.
dissertation, Kent State University.)

                                               19
the instruction had improperly relieved the State of its burden and invaded the province of

the jury. We concluded that due to the lack of legal and empirical evidence that a “CSI

effect” existed, and because the giving of the instruction is “fraught with the potential for

reversible error,” if such an instruction is requested, and is appropriate, its use should be

confined to curative situations. Id. at 473, 31 A.3d at 933.

       Essentially, Atkins and Stabb counsel that in light of “the currently inconclusive state

of the scholarly legal and/or scientific communities’ research, taken as a whole, regarding

whether such a phenomenon as the ‘CSI effect’ exists,” the instruction should not be given

preemptively and should be “confined to situations where it responds to correction of a pre-

existing overreaching by the defense, i.e., a curative instruction.” Stabb, 423 Md. at 472-73,

31 A.3d at 933. In particular, neither cross-examination regarding whether scientific testing

had been done, nor, counsel’s arguments regarding lack of scientific evidence generated

giving the contested instruction; the instruction, instead, in fact relieved the State of its

burden to prove the case beyond a reasonable doubt.

       In Stabb, we suggested the appropriateness of the “anti-CSI effect” instruction only

“where it can be demonstrated by appropriate scholarly research that a ‘CSI effect’ has been

found to exist by the relevant legal and/or scientific communities and its scope and effect can

be relied upon to tailor an appropriate response through voir dire questions and/or jury

instructions.” 423 Md. at 473, 31 A.3d at 933. In the last two years since we issued our

opinion in Stabb, legal and empirical proof of the existence of a “CSI effect” is still



                                              20
wanting.22 An article published by the American Bar Association in Insights on Law &

Society in the Fall of 2011 by an Associate Professor of Media Studies at the University of

North Carolina at Greensboro described the “CSI effect” as “more myth than reality” because

“[s]cholars from law and other fields have been unable to find any empirical support for an

antiprosecution ‘CSI effect’ on verdicts.” Kimberlianne Podlas, The Verdict on Television:

How Does Television Inform Our Understanding of the Legal System?, 12 Insights on L. &

Soc’y 16, 19 (2011).23 In a 2012 article in the University of Virginia School of Law Sports

& Entertainment Law Journal by Caroline Kinsey, a Professor and Public Interest Fellow at

the University of Michigan College of Law, suggesting how prosecutors and attorneys might

adjust their practices to accommodate heightened expectations by jurors, noted that the


       22
          Two reports published shortly before our opinions issued in Atkins and Stabb, not
referenced in either opinion, described additional surveys: one report published in the
Thomas M. Cooley Law Review in 2010, concluded, based on a questionnaire given to 2,246
jurors prior to jury selection, jurors gave the most weight to eye-witness testimony, and with
the exception of rape cases, were no more likely to acquit defendants without scientific
evidence. Judge Donald E. Shelton, Juror Expectations for Scientific Evidence in Criminal
Cases: Perceptions and Reality About the “CSI Effect” Myth, 27 T.M. Cooley L. Rev. 1
(2010). Another 2010 report, published by professors from California State University, Los
Angeles, based on a telephone survey of 1,201 California registered voters regarding their
television viewing habits and the weight of reliability they would place on different types of
evidence, determined that even presuming CSI viewers might have a predisposition to acquit
or convict based on scientific evidence, due to the large number of variables that can affect
a juror’s verdict, such as age, gender, race, or dislike of an attorney or witness, it was not
possible to determine whether CSI watching affected the outcome of cases. Deborah R.
Baskin and Ira B. Sommers, Crime-Show-Viewing Habits and Public Attitudes Toward
Forensic Evidence: The “CSI Effect” Revisited, 31 Just. Sys. J. 97 (2010).
       23
          See also Mark A. Godsey & Marie Alou, She Blinded Me With Science: Wrongful
Convictions and the “Reverse CSI-Effect,” 17 Tex. Wesleyan L. Rev. 481, 483 (2011)
(noting that “prosecutorial claims of the CSI Effect have not been empirically verified”).

                                             21
validity of the “CSI effect” had not been established. Caroline L. Kinsey, CSI: From the

Television to the Courtroom, 11 Va. Sports & Ent. L. J. 313, 314 (2012). In a 2013

monograph on forensic science in American popular culture, Lindsey Steenberg, Professor

of Film Studies at Oxford Brookes University, stated that there remains no definitive proof

that viewing CSI type television shows directly affects a juror’s likelihood to acquit or

convict, and “the panic about one specific television show stems from a small number of

sources and experts, rather than wide-ranging research or investigation.” Lindsay Steenberg,

Forensic Science in Contemporary American Popular Culture: Gender, Crime, and Science

104 (Routledge Taylor & Francis Group 2013). The academic and scientific community has

yet to conclude that a “CSI effect” exists and, thus, supports our skeptical view that the “CSI

effect” exists.24

       In the face of our avowed skepticism regarding the appropriate use of an “anti-CSI

effect” instruction, the State argues that the instruction in the present case was an appropriate

exercise of the trial judge’s discretion, because of Robinson’s counsel’s remarks in opening

statement, as well as the off the record instruction colloquy, and his cross-examination of

witnesses. We iterate that the “anti-CSI effect” instruction should not be given preemptively,

as was suggested in the instant case by the judge when he addressed possible closing

argument by defense counsel.



       24
          Our approach to the “CSI effect” is consistent with the Massachusetts Supreme
Court in Commonwealth v. Gray, 990 N.E.2d 528 (Mass. 2013) and Commonwealth v. Perez,
954 N.E.2d 1 (Mass. 2011).

                                               22
       While it is true that Robinson’s counsel opened by saying, in part, “[t]here will not be

any fingerprints from any door . . . [t]here won't be his DNA on anything, not on any

screwdriver, not on any weatherstripping, not on any piece of tape, not on anything. Quite

frankly, there's just not, there's absolutely no evidence beyond a reasonable doubt that Mr.

Robinson committed these crimes,” a mere reference to the lack of evidence does not trigger

giving an “anti-CSI effect” instruction. We have reflected, for example, when reference has

been made by defense counsel to the lack of fingerprint evidence, that, “when the State has

failed to utilize a well-known, readily available, and superior method of proof to link the

defendant with the criminal activity, the defendant ought to be able to comment on the

absence of such evidence.” Sample v. State, 314 Md. 202, 207, 550 A.2d 661, 663 (1988)

citing Eley v. State, 288 Md. 548, 553, 419 A.2d 384, 386 (1980); see Patterson v. State, 356

Md. 677, 683, 741 A.2d 1119, 1122 (1999) (“The law of Maryland concerning

nonproduction of evidence is well-established: An inference may be made against the

State.”). Certainly, lack of evidence is a common defense in a criminal case to generate

reasonable doubt just as in the instant case.

       Robinson’s counsel’s opening statement and cross-examination merely pointed out

what procedures might have been available to the State, but did not misstate the law or the

State’s burden. Robinson’s counsel cross-examined the officers regarding whether testing

had been ordered to compare the screwdrivers recovered to pry marks on the door to the

apartment and whether fingerprint or DNA tests had been ordered, but did not insinuate that



                                                23
the State had any obligation to perform such testing or that had tests been performed, the

results of such testing would have favored his client.

       As a result, we hold that the trial judge erred in giving the “anti-CSI effect” instruction

which effectively relieved the State of its burden to prove Robinson guilty beyond a

reasonable doubt.




                                             JUDGMENT OF THE COURT OF SPECIAL
                                             APPEALS REVERSED; CASE REMANDED
                                             TO THAT COURT WITH DIRECTIONS TO
                                             REVERSE THE JUDGMENT OF
                                             CONVICTION AND REMAND THE CASE
                                             TO TH E CIR CUIT COURT FO R
                                             MONTGOMERY COUNTY FOR A NEW
                                             TRIAL. COSTS IN THIS COURT AND THE
                                             COURT OF SPECIAL APPEALS TO BE
                                             PAID BY MONTGOMERY COUNTY.




                                               24
Circuit Court for Montgomery County
Criminal Case No. 118113

                                            IN THE COURT OF APPEALS

                                                  OF MARYLAND

                                                        No. 11

                                                September Term, 2013
                                      ______________________________________

                                           EMMANUEL FORD ROBINSON

                                                          v.

                                              STATE OF MARYLAND
                                      ______________________________________

                                                 Barbera, C.J.,
                                                 Harrell
                                                 Battaglia
                                                 Greene
                                                 Adkins
                                                 McDonald
                                                 Watts,

                                                      JJ.
                                      ______________________________________

                                         Dissenting Opinion by Watts, J., which
                                                   McDonald, J., joins
                                      ______________________________________

                                                 Filed: January 27, 2013
       Respectfully, I dissent.

       I would hold that the Circuit Court for Montgomery County (“the circuit court”)

did not abuse its discretion in giving the anti-CSI effect jury instruction. During the

opening statement of Emmanuel Ford Robinson (“Robinson”), Petitioner, Robinson’s

counsel stated:

       There will not be any fingerprints from any door, any piece of paper or
       tape, or whatever they’re saying, on any weatherstripping, on the doors, no
       fingerprints of his. There won’t be his DNA on anything, not on any
       screwdriver, not on any weatherstripping, not on any piece of tape, not on
       anything. Quite frankly, there’s just not, there’s absolutely no evidence
       beyond a reasonable doubt that [] Robinson committed these crimes.

(Emphasis added). In so stating, Robinson’s counsel essentially represented that, without

scientific evidence (i.e., fingerprints and DNA), there was “absolutely no evidence

beyond a reasonable doubt[.]” (Emphasis added). In other words, Robinson’s counsel:

(1) equated a lack of scientific evidence with a lack of proof beyond a reasonable doubt;

and (2) implied that the State was required to offer scientific evidence to satisfy the

State’s burden of proof beyond a reasonable doubt. Thus, Robinson’s counsel misstated

the State’s burden of proof.      As a result, the circuit court accurately and properly

instructed the jury that “there is no legal requirement that the State utilize any specific

investigative technique or scientific test to prove its case.”1 A trial court does not abuse

its discretion in giving an anti-CSI effect jury instruction after a defendant misstates the


       1
         Any conclusion that the challenged instruction in this case “effectively relieved the
State of its burden to prove Robinson guilty beyond a reasonable doubt[,]” Majority Slip Op.
at 24, is contradicted by the text of the instruction itself, which concluded with the statement
that “[y]our responsibility as jurors is to determine whether the State has proven based upon
the evidence, the defendant’s guilt beyond a reasonable doubt.”
State’s burden. See generally Atkins v. State, 421 Md. 434, 451, 26 A.3d 979, 988 (2011)

(“[C]ounsel . . . did not incorrectly state the law or the State’s burden. . . . There was an

insufficient basis . . . generating a need for a curative or cautionary jury instruction

clarifying the State’s burden in regards to specific investigative techniques.”); Stabb v.

State, 423 Md. 454, 473, 31 A.3d 922, 933 (2011) (This Court stated that an anti-CSI

effect jury instruction “ought to be confined to situations where it responds to correction

of a pre-existing overreaching by the defense, i.e., a curative instruction.”).

       It is entirely consistent with this Court’s holdings in Atkins and Stabb to conclude

that, here, the circuit court did not abuse its discretion in giving the anti-CSI effect jury

instruction. In both Atkins and Stabb, this Court expressly declined to hold that a trial

court automatically abuses its discretion in giving an anti-CSI effect jury instruction. See

Atkins, 421 Md. at 438, 26 A.3d at 980 (“[W]e do not hold that an investigative or

scientific techniques instruction would be improper under different circumstances[.]”);

Stabb, 423 Md. at 457, 31 A.3d at 923 (“‘[A]nti-CSI effect’ or ‘no duty’ instructions are

not per se improper necessarily[.]”).      In fact, in both Atkins and Stabb, this Court

confined its holding to the particular facts of each case. See Atkins, 421 Md. at 437-38,

26 A.3d at 980 (“This conclusion . . . is based on the particular facts in this case[.]”);

Stabb, 423 Md. at 463, 31 A.3d at 927 (“[U]nder the facts of this case, the trial court

abused its discretion[.]”). As discussed above, the standard that this Court ultimately

enunciated in Stabb, id. at 473, 31 A.3d at 933–that an anti-CSI effect jury instruction is

warranted “where it responds to correction of a pre-existing overreaching by the defense,

i.e., a curative instruction”–applies here, where Robinson’s counsel implied that the State


                                             -2-
was required to offer scientific evidence to satisfy the State’s burden of proof beyond a

reasonable doubt.

       Both Atkins and Stabb are factually distinguishable from this case. In Atkins, 421

Md. at 440-41, 26 A.3d at 982, this Court held that the trial court abused its discretion in

giving an anti-CSI effect jury instruction where, while cross-examining a detective, the

defendant elicited that law enforcement had not tested a knife for trace evidence.

Similarly, in Stabb, id. at 470-71, 31 A.3d at 932, this Court held that the trial court

abused its discretion in giving an anti-CSI effect jury instruction where: (1) while cross-

examining a detective and a social worker, the defendant elicited that law enforcement

had not conducted a sexual assault forensic examination of the victim; and (2) during his

closing argument, the defendant “commented on the lack of physical evidence[.]” In

contrast to this case, in neither Atkins nor Stabb did the defendant ever misstate the

State’s burden, thus necessitating a curative instruction.

       I am unpersuaded by any reliance on skepticism that the CSI effect exists as a

basis for determining that the circuit court abused its discretion in this case.

Theoretically, the CSI effect causes jurors to “unrealistic[ally] expect[]” scientific

evidence, and thus misleads jurors to believe that the State is required to offer scientific

evidence to satisfy the State’s burden of proof beyond a reasonable doubt. Stabb, 423

Md. at 467 n.3, 31 A.3d at 930 n.3. Even if the CSI effect does not exist, a defendant can

nonetheless mislead jurors by representing to them that the State is required to offer

scientific evidence to satisfy its burden of proof beyond a reasonable doubt, and there

would be no colorable argument against giving an anti-CSI effect instruction.            As


                                            -3-
explained above, here, Robinson’s counsel did essentially that. Although Robinson’s

counsel did not explicitly tell the jury that the State is required to offer scientific

evidence, Robinson’s counsel insinuated as much by: (1) listing types of scientific

evidence, piece by piece; and (2) in the next sentence, telling the jury there was

“absolutely no evidence beyond a reasonable doubt[.]” (Emphasis added). Under these

circumstances, the circuit court did not abuse its discretion in giving the anti-CSI effect

jury instruction.

       Judge McDonald has authorized me to state that he joins in this opinion.




                                           -4-
