Immersion: Three Cautionary Tales of Podcasts and the Criminal Process, Part I: Introduction

I love podcasts. I think a lot of people do, for reasons that have to do both with succumbing to the cultural moment we are in and feeding the parts of our souls that yearn to get away from said moment. They offer a refreshing contrast to the binge/stream quality of Prime, Netflix, et al, to the immediacy of the multisensory assault on our imagination and emotional independence. Listening to a crime podcast does not result in the cognitive hangover that I get from watching a three-part crime documentary. In many ways, it is a medium those of us who were radio-struck grew up with; every summer day, in the early afternoon, I used to listen to classic children’s literature, read on the radio by Israel’s best storytellers. That’s how I was introduced, for example, to The Hound of the Baskervilles, and fell in love with Sherlock Holmes. In that respect, experiencing a story by hearing it is not new. Nor is podcasting itself new–the pioneering examples appeared in 2005. But there are some important things that make podcasting in the last decade or so somewhat different. For one thing, the possibility of producing a podcast democratizes content creation and sharing: podcast listeners become podcast producers, adding not only to the proliferation of the medium but also to the diverse perspectives represented. In presenting a personal perspective–speaking intimately, straight into the ear of a listener–podcasts have a self-reflexive, self-conscious element that radio shows never had. In the context of identities, and the role they play in media brand building, podcasts can be “an expression of cultural otherness – an outsider-ness – providing an expressive outlet for those unable to be heard, and a meaningful cultural nexus for those outside of mainstream radio listener communities.”

Ever since Serial, the first crime podcast–really, the first podcast ever, I think–to go viral debuted, I’ve noticed the vast popularity and influence of the medium. We know that consumption of podcasts and crime documentaries alike heightens fear of crime and produces crime-prevention behaviors, though many people believe that listening to these materials innoculates them against fear of crime. While people who listen to crime podcasts also watch crime documentaries–entertainment choice is more a function of genre than of medium – long-form investigative podcasts are especially immersive: they are aural, of course, which gets our neglected imagination the workout it so needs and craves, and the serial structure of the podcast gets you hooked and anxious for the next “fix”. In that respect, true-crime podcasts are a true medium-message marriage. As Paul Kaplan and Daniel LaChance explain in Crimesploitation, engaging with true-crime content is seductive because we get sucked into participating in morality tales, mocking the unfortunate, marveling at them, and at times rooting for them. Exploring that already immersive genre through an immersive medium is what makes these podcasts so powerful.

There’s plenty of research that critically examines how these podcasts frame crime stories, characters, offenders, exonerees, and victims, with attention to race, gender, and other rubrics. Some of this research criticizes the medium for minimizing, or even sensationalizing, trauma; some of it shows that they tend to portray law enforcement in a negative light. My interest in this project is in examining the ways in which the medium engages with the official criminal process.

It’s hard to argue with the fact that podcasts have drawn public attention to cases widely perceived as miscarriages of justice, and that the vast public interest resulting from the podcast has propelled the criminal process forward by reopening cold cases and/or fueling arguments for postconviction review. It’s also hard to argue with the fact that, while quality varies considerably among podcasts, there are good people doing serious work, investing effort in obtaining primary sources, and doing dogged journalism the way old-school journalists would. What gets less attention, I think, is the question how case coverage by a podcast can affect ongoing police investigations and subsequent legal proceedings, and this is where I think there’s room for rethinking how we do things. It’s not going to be possible to regulate who gets into podcasting and how they do what they do; podcasters are private people with First Amendment rights. Moreover, the U.S. does not have a sub judice rule, which gives people a lot more freedom to comment on ongoing legal proceedings. Nevertheless, at least shining a light on the possible problems that can ensue from the presence of a popular podcast in the legal arena might be valuable in that it might help the true crime community articulate some sort of minimal “best practices”.

The heart of the problem lies in the fundamental mismatch between the journalistic project and the investigative/adjudicative one, which has five different aspects: the goal of finding out what happened vs. the goal of collecting evidence; the goal of dogged pursuit vs. the goal of acting within constitutional restraints; “taking sides” and speculating as a narrative choice vs. as a legal obligation; outreach and accessibility as an asset vs. as a problem; and the construction of finality as the arrival at factual vs. legal truth.

I’m going to go about this in several installments. The first order of business is to relate the story of three extremely popular podcasts and the legal aftermath of the cases they examined: Sarah Koenig’s Serial and Adnan Syed’s postconviction review of his conviction for the murder of Hae Min Lee; Voices for Justice and Sarah Turney’s investigation of the disappearance of her sister, Alissa Turney, of which Sarah accused her father, convicted explosives hoarder Michael Turney; and Your Own Backyard, Chris Lambert’s investigative podcast of the disappearance of Kristin Smart and the subsequent trial of Paul and Reuben Flores for her murder. I’ve already written my thoughts about the latest legal developments in the Syed trial, and have yet to comment on the other two. In all three cases, the ensuing problems were not an issue of unprofessional journalism or ineptitude; all three works are examples of detailed, responsible hard work by podcasters, in one case the victim and suspect’s family member and in another a podcaster working closely with the victim’s family. In all three cases, the legally requisite disclaimers were made. However, I argue that all three podcasts were victims of their own success because of the aforementioned fundamental mismatches between the journalistic project and the adjudicative one.

After discussing all three cases, I want to address the aspects of the mismatch one by one, explaining the ways in which podcasting is compatible and incompatible with the legal process–at both of the latter’s phases, but more so at the adjudicative phase than the investigative one.

Based on the issues I generalize from the podcast, I plan to try and propose an ethical code for true crime podcasters, as well as some best practices for police officers and lawyers operating alongside podcasters in the criminal law field. I suspect some of the incompatibility between journalism and law is unavoidable and will continue to plague cases highlighted by podcasts. I also want to talk a bit about what these podcasts do to cases that are *not* covered by podcasts.

Brian Kohberger Pretrial: Sealing Motions and Testing DNA

Over the weekend I got to listen to a Court TV Podcast episode in which journalist and lawyer Vinnie Pollitan discusses the upcoming trial of Brian Kohberger, who has been charged with the murder of four University of Idaho students–Kaylee Goncalves, Madison Mogen, Ethan Chapin and Xana Kernodle–at their off-campus home. Kohberger is a stranger to the victims and no direct evidence links him to the crime; one survivor has a description of a masked intruder, but it is rather generalized (she described his build and his eyebrows.)

You can watch, or listen to, the episode here:

One thing that is immediately evident is Pollitan’s ire at the court’s decision to seal the pretrial proceedings, which of course means we don’t know what is being argued in the motions. This is a rare proceeding nationwide, and in Idaho in particular; the United States often allows cameras in courtrooms and has no sub judice rule, which means that the media can and does report on court proceedings while they are ongoing. That this upsets journalists, who report on sensational, high-profile cases like this one, is obvious, but it seems that the court prefers this unusual step to having disclosures that could taint the jury pool (consider that the motion to change venue here was already approved, and the parties are banking on the ability of finding folks who have not heard of this case).

Meanwhile, the defense is hard at work trying to get the DNA evidence in this case suppressed. Its importance cannot be overrated given the paucity of physical or testimonial evidence. The only forensic link between the suspect and the crime scene was a tan leather knife sheath found at the scene, which, it is estimated, the perpetrator dropped while struggling with one of the victims. The knife itself has never been recovered, but the button snap of the sheath had a single source of male DNA on it.

The first investigative step was uploading the DNA from the sheath onto public genealogy sites, only some of which collaborate with law enforcement. The FBI built family trees of the genetic relatives to the suspect DNA and sent over a tip to investigate Kohberger. None of this, however, was mentioned in the affidavit for probable cause. Instead, the police based its probable cause on surveillance video showing a vehicle like the suspect’s close to the murder scene. An expert narrowed down the make, model, and approximate year of the vehicle, and campus police from a nearby university found such a vehicle was registered to Kohberger. DNA gathered from the Kohberger family home was found to be a familial match to the sheath DNA.

According to the affidavit, investigators homed in on Kohberger, at the time a Ph.D student in criminology at nearby Washington State University, by using surveillance video of a vehicle in the area around the time of the killings, physical descriptions of the suspect from a surviving witness and his cell phone location data. Further, detectives took DNA from the trash at the Kohberger family’s home in Pennsylvania and compared it to the DNA on the sheath, and identified “a male as not being excluded as the biological father of Suspect Profile,” according to the affidavit. Kohberger was then arrested on December 30, 2022.

The defense argues that the IGG (investigative genetic genealogy) evidence was insufficient for furnishing probable cause, and the prosecution responds that the IGG evidence is irrelevant, since the search warrant was sought and obtained on different grounds. I think the prosecution will have the upper hand here: the evidence will not be suppressed because the car identification is an independent source of evidence, which is an exception to the Fruit of the Poisonous Tree doctrine (see Murray v. U.S. for a similar example). Still, assuming only the genetic genealogical DNA evidence goes away and all they have is a vehicle and the suspect’s bushy eyebrows, it might arouse suspicion among the jury that they ended up with this defendant, a stranger to the victims and the area.