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.