McGhee v. State

Decision Date24 October 2022
Docket Number64-2021
CourtMaryland Court of Appeals



No. 64-2021

Court of Appeals of Maryland

October 24, 2022

Circuit Court for Prince George's County Case No.: CT07-1096X

C.J. Watts Hotten Booth Biran Gould Eaves, JJ.


Biran, J.

CRIMINAL LAW - INEFFECTIVE ASSISTANCE OF COUNSEL -"CSI-EFFECT" VOIR DIRE QUESTION - During jury selection at Petitioner's 2007 murder trial, Petitioner's attorney did not object to a voir dire question that asked: "Does any member of this panel believe that the State has got to present fingerprint evidence, DNA, blood sample evidence, ballistic evidence, any scientific evidence in order to convince you of the defendant's guilt? In other words, do you think the State has a requirement to do that in all cases?" The jury found Petitioner guilty. In a trilogy of cases that the Court of Appeals decided in the years following Petitioner's trial, the Court held that so-called "CSI-effect" voir dire questions and similar jury instructions can improperly intrude on the province of the jury. Charles v. State, 414 Md. 726 (2010); Atkins v. State, 421 Md. 434 (2011); Stabb v. State, 423 Md. 454 (2011). In 2014, Petitioner filed a post-conviction claim alleging that his trial counsel provided ineffective assistance of counsel by not objecting to the CSI-effect voir dire question at his trial. The Court of Appeals held that, under the prevailing professional norms that existed in 2007, defense counsel's failure to object to a CSI-effect voir dire question did not render counsel's performance constitutionally deficient under Strickland v. Washington, 466 U.S. 668 (1984). The Court declined to address the retroactivity of Charles, Atkins, and Stabb in determining whether counsel's conduct was objectively unreasonable, because Strickland requires a post-conviction court to assess an attorney's performance based on the prevailing professional norms at the time of the contested conduct. Cases that are decided after a defendant's trial do not shed light on the professional norms that existed at the time of the defendant's trial.


This case arises from a post-conviction court's grant of a new trial to Petitioner Antonio McGhee based on ineffective assistance of counsel. In December 2007, a jury in the Circuit Court for Prince George's County convicted McGhee of the murder of Keith Dreher. The basis of McGhee's ineffective assistance of counsel claim is his counsel's failure to object to what courts and commentators have called a "CSI-effect" voir dire question.

The "CSI effect" describes the theorized impact of television crime scene dramas on jurors. The theory suggests that, based on the proliferation of programs such as CSI, jurors in criminal cases now expect the prosecution to produce DNA evidence and/or other forensic evidence to prove a defendant's guilt, and that juries are prone to wrongfully acquit criminal defendants where the prosecution does not produce such evidence. See, e.g., Robinson v. State, 436 Md. 560, 570 n.11 (2014) (citing 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)).

In 2010 and 2011 - more than two years after McGhee's trial - this Court considered three cases related to the CSI effect, and held in each that a CSI-effect message from the bench constituted reversible error. See Charles v. State, 414 Md. 726 (2010); Atkins v. State, 421 Md. 434 (2011); Stabb v. State, 423 Md. 454 (2011). One of the questions before this Court is whether to apply these three cases retroactively in the context of an ineffective assistance of counsel claim.

In Strickland v. Washington, the Supreme Court set out the controlling test for evaluating an ineffective assistance of counsel claim under the Sixth Amendment. 466 U.S. 668 (1984).


The Strickland test requires a petitioner claiming ineffective assistance of counsel to make two showings. First, the petitioner must show that counsel's performance was deficient. Id. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Second, "the defendant must show that the deficient performance prejudiced the defense." Id.

Under Strickland, in considering the first "performance" prong of the test for ineffective assistance, we are bound to evaluate defense counsel's conduct according to professional norms that existed at the time of the contested action (or inaction). Id. at 689. This analysis precludes us from evaluating counsel's conduct based on law that did not exist at the time. Thus, we do not assess counsel's performance at McGhee's trial as if it occurred after this Court decided Charles, Stabb, and Atkins. Under the professional norms that existed at the time of McGhee's trial, defense counsel's failure to object to a CSI-effect voir dire question did not render her performance constitutionally deficient.



A. Maryland Jurisprudence Concerning the "CSI Effect"

1. CSI-Effect Jury Instructions

The term "CSI effect" emerged in 2002. Robinson, 436 Md. at 570. Due to the popularity of forensic crime scene television series such as CSI: Crime Scene Investigation,[1]


commentators speculated that such programs may heighten juror expectations for forensic evidence. Id. at 570-71 (citing 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)). Studies that considered whether viewing CSI-type programs affected jurors' verdicts yielded inconclusive results. See Robinson, 436 Md. at 571-72.

Nevertheless, some courts began giving jury instructions to guard against a potential CSI effect. These were sometimes referred to as "anti-CSI effect" instructions. See id. at 572. The advent of these jury instructions generated unique questions about the interaction of pop culture, the role of the jury, and the State's burden of proof, prompting consideration in Maryland's appellate courts.

In 2007, the Court of Special Appeals considered for the first time whether the giving of a CSI-effect jury instruction constituted reversible error - specifically, whether the instruction relieved the State of its burden of proof. Evans v. State, 174 Md.App. 549 (2007).


The State charged Evans and another man with possession and distribution of heroin after conducting an undercover "buy bust" operation. Id. at 552-53. At trial, Evans's attorney cross-examined the investigating detective concerning specific investigative techniques that the detective had not used, including the failure to capture the drug transaction through the use of video or audio recording equipment. Id. at 562. This line of cross-examination prompted the trial court to instruct the jury as follows:

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 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. Evans's trial counsel did not object to the giving of this instruction. Id. at 564-65.

In his closing argument, Evans's counsel highlighted the detective's failure to record the alleged transaction. See id. at 562-63. The co-defendant's attorney echoed this point in his closing argument, also noting the lack of forensic evidence: "You 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 563-64.

On appeal, Evans argued that the instruction concerning specific investigative techniques and scientific tests improperly relieved the State of its burden to prove his guilt beyond a reasonable doubt. Id. at 562. Because Evans had failed to preserve this issue through objection in the trial court, the Court of Special Appeals held that it was precluded


from considering it. Id. at 566. In dicta, the intermediate appellate court noted that the jury instruction was a correct statement of the law and that it did not relieve the State of its burden of proof. Id. at 570. However, the court "stress[ed] that the salutary effect of the instruction is found in the advisement that the absence of such evidence should be factored into the juror's determination of whether the State has shouldered its burden if, and only if, the absence of such evidence, itself, creates reasonable doubt." Id. at 571. The court continued: "The risk is greatest that such an instruction will run afoul of the prohibition against relieving the State of its burden where the instruction is predominant in the overall instructions and its relation to the reasonable doubt standard unclear." Id. Thus, the court advised, "the preferable practice is for the ... instruction to be promulgated in conjunction with the explication of the State's burden to prove the defendant guilty beyond a reasonable doubt." Id.

Between 2007 and 2011, no Maryland appellate court addressed the CSI effect in the context of a jury instruction.[2] In 2011, this Court considered such an instruction for the first time in Atkins v. State, 421 Md. at 434. Atkins was charged with three counts of assault after he was...

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