Trial by podcast: does it help or hinder the legal system?

By Liz Banks-Anderson

Is there a certain point where the law cannot provide the answer? This is one of the key questions underscoring the podcast Serial.

The twelve-part series explores the case of murdered American teenager Hae Min Lee, and her ex-boyfriend Adnan Syed, who is currently serving a life sentence in prison for her murder, despite claiming his innocence.

The podcast, released in October 2014 and produced by Sarah Koenig, has been downloaded more than 76 million times. What followed was an unprecedented discussion in the mainstream media of the law and the criminal justice system, and demonstrated the role of journalism and the media in continuing the work of the legal system by revisiting cases.

The series artfully explores the premise of doubt as an inherent part of the criminal justice system and the complexities of such cases when trying to reach a final verdict; ultimately examining human nature and motivation.

Lee, a senior at Woodlawn High School in Baltimore, disappeared on 13 January 1999. One month later, her body was found in a city park, strangled. Her 17-year-old ex-boyfriend Adnan Syed was arrested for the crime, and within a year, sentenced to spend the remainder of his life in prison.

Melbourne Law School Professor Jeremy Gans, who researches and teaches in all aspects of the criminal justice system, believes that an accurate description of the podcast would be not as a murder mystery, but rather an exploration of a human mystery and the criminal justice system as well.

The thing I like best about Serial isn't the possibility that Adnan might be freed, it is the greater public awareness of just how complex these cases can be

The podcast highlights a series of flaws in the prosecution. The case against Adnan was largely based on the story of one witness, Adnan's friend Jay, who testified that he helped Syed bury Lee's body. Syed has always maintained his innocence – the podcast investigates the veracity of these claims.

The public interest the podcast attracted has added to existing arguments to see the case further examined; in a follow up podcast "Undisclosed: The State v. Adnan Syed," launched in April, and Syed being granted the right to reopen his appeal.

The podcast investigates the key findings in the case and grapples with the uncertainty that we may never know the truth. It challenges the 'Law and Order effect' of scripted legal narratives with definitive endings, through which the criminal justice system is so often presented.

Professor Gans says this is a good realisation, and also leads to the interesting legal question of what to do when the law cannot give clarity.

"Criminal defence lawyers would say that is where the law has to let go…I think we get used to the television narrative – there is a flashback or a twist and you learn the truth.

"But there are plenty of cases where you never find out the truth and there are real problems with every side. That is the kind of case I like and the more discussion the better," he says.

The very nature of evidence law, Professor Gans says, is it is a law about people. How do you decide if someone has the capacity to murder based on how they present themselves?

"We all believe we can. But there are limits. We make snap judgments about people all the time. In almost every case it's not really about the technical claims from particular experts, it's about the plausibility of human acts, and that is the tough bit," he says.

The podcast's scrutiny of the case showed that the criminal justice system does have its limits and caused many listeners to doubt whether Syed's continued imprisonment is warranted.

Furthermore, Professor Gans says the podcast demonstrates the importance of revisiting the results of criminal trials and challenging the validity of finality.

"That is exactly why this podcast should happen. In my view, there is never anything wrong with constantly revisiting the results of criminal trials. I'm not convinced in finality and would be perfectly happy for these things to be under review as much as anyone wants to."

If it then becomes a question of legal resources, that is where the media and the justice system can work in tandem and journalism can take the investigation outside of the courtroom.

Professor Gans believes this journalistic investigation contributes positively to healthy debate and shows that the legal system can be flawed.

"It's not a new occurrence, there are a lot of cases where the media steps in to reinvestigate," he says.

Does this media scrutiny help or hinder the judicial process? The case shows new media technologies at their finest: the podcast, from a media sense, is changing the debate and shaking up the system; showing that the criminal justice system can have its own limitations.

Media law expert and Managing Partner at Holding Redlich, Ian Robertson, says the media's role of holding the justice system and government to account is valuable.

"Media being involved in looking at cases where there appear to be miscarriages of justice is, in my opinion, a perfectly legitimate function."

"We would like to think that the legal system is perfect, but we know that is not real. I think the media has a very important role to play in our society in exposing the errors and mistakes of government and the judicial system – it is a vital role," he says.

"The law of contempt of court, which prevents media publicity from the arrest of a suspect until a verdict in court, ensures that the right of the accused to a fair trial is not impeded", Mr Robertson says.

Despite being a fairly standard case, the lives and people Serial explored were presented with all the necessary elements of a compelling narrative; including possessing enough mystery, voices and audio content.

"There is no one completely unlikable in it. You can feel for everyone and it is sad. So I think it has the right mix…Serial is not a law and order case. No one involved is a danger to society – even in the worst case scenario, they are all just idiot teenagers," Professor Gans says.

"The reason the show is a hit is because it is high quality journalism by Koenig. She had the right voice and drew people in. A really compelling part of her story is her chats with Adnan and seeing how their relationship developed."

Koenig's reporting encouraged a global conversation about key legal issues, including limitations of the justice system and key legal principles.

Professor Gans says the central legal principle explored was proof beyond reasonable doubt - ultimately, the producers could not give a definitive answer but concluded it was not possible to convict Syed 'beyond reasonable doubt.'

"The mystery of how you can be sure of someone's innocence or guilt when everything is murky is at the heart of the show," he says.

Other key legal principles Serial explores include the concept of prosecutorial disclosure and professional conduct – how much do we trust the prosecutors and defence lawyers to have done the right thing in this case?

The role of culture, cultural stereotyping and cross-cultural understanding in any trial and its effect on plausibility when trying to bridge the gap is also discussed.

"One barrier to looking into any case is that you do not understand enough about the people involved. We all want to relate to Hae and Adnan, but there is a layer that stops us relating," Professor Gans says.

"For Australians looking at the case, it is a layer that involves understanding America. For example, the high school experience is nothing like the Australian equivalent and secondly, the community it focuses on is an Asian and Muslim culture in Baltimore," he says.

As for the likely outcome of the appeal process, Professor Gans believes Syed is never going to be found to be innocent unless there is extraordinary new evidence or new DNA evidence suggesting a serial killer was involved.

"I don't consider it likely he will be found to be innocent but what could happen is that sufficient doubts could arise that ultimately let him out," he says.

"Guilty and not guilty are far too simplistic for this case. And yet, that's what the whole justice system is based around. So you have to cope with that but it's a fun ride I'm certainly looking forward to the next one!"

Image: Serial podcast playing on mobile phone
Credit: Flickr

This article originally appeared in MLS News, Issue 13, June 2015.