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Toobin: Duke case to test jurors in 'CSI' world

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CNN legal analyst Jeffrey Toobin

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Jeffrey Toobin
Duke University
Crime, Law and Justice

NEW YORK (CNN) -- Two members of Duke University's lacrosse team were arrested and charged Tuesday with raping a woman hired as a dancer at a team party, jail officials said.

CNN legal analyst Jeffrey Toobin discussed the defendants' legal options with anchor Miles O'Brien.

O'BRIEN: Sophomores Reade Seligmann and Collin Finnerty arrived at the police station for booking about 4 this morning Eastern time. What lies ahead for them? ... Let's talk about Mr. Finnerty first. He apparently has a prior fracas on his record here, according to Newsday. What do we know about that, and how would that impact the way he is treated, as opposed to his co-defendant?

TOOBIN: Well, in November, he was arrested in Georgetown, Washington, D.C., [on assault charges]. ... He was put in what's called a diversionary program, which is one of these things where, if you stay out of trouble for a year, your record is clear. ... He may have a problem with that case coming to life as an actual prosecution.

Plus, there will be the issue of, is that admissible in the rape trial if and when the rape trial happens? Strong arguments will be made on both sides. Just show the guy's in a lot of trouble in more than one way.

O'BRIEN: Yes. The indictment will be unsealed or is in the process of being unsealed. We'll learn a lot more about what kind of case the prosecutor has. But we talked about -- quite a bit -- the fact that there was not a DNA link established, at least as far as we know publicly, between the accuser and the suspects in this case. Now we're in this "CSI" world where we assume if there's not a DNA link, you know, it's kind of like a magic connection. Legally speaking, in the real world, what does that mean?

TOOBIN: Well, you know, it's interesting. This case, because it's so high profile, will be a very good example of what's called sometimes the "CSI" effect -- which is, the jurors conditioned by watching "CSI" and related shows on TV come to expect DNA-type evidence.

The prisons are full of rapists who were convicted without DNA evidence. What did the alleged victims say? What marks are on the bodies of the alleged accuser -- of the defendants? What admissions did they make? What did other witnesses see? This is how rape cases are made all the time without DNA.

But there apparently is no DNA evidence conclusively linking these defendants to the crime. Obviously, the defense will do what they can with that absence of evidence.

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