‘Serial’ and the system: Building a legal case vs. getting all the facts


There’s no denying the wild popularity of “Serial,” a new podcast from the creators of “This American Life.” Its fame was enough to convince me to try it out, and I’ve since been hooked.

You might think all the attention comes from the podcast’s riveting crime-mystery storytelling and the way it uniquely combines real-life events with Agatha Christie-esque narrative progression and a dash of conspiracy theory. But if you think that sums up why “Serial” is so captivating, you’re missing the whole story.

“Serial” poses complex questions about law, journalism and philosophy that people care about. The magic is that we, as listeners, are allowed to come upon questions ourselves during the short but dramatic musical pauses that follow each shocking revelation.

These tough questions about how we should conduct journalism, criminal investigations and trials add a weighty dimension to already enticing plot questions like “Who really killed Hae?” and “What’s Jay’s deal, anyway?”

The law’s process versus journalism’s facts

I’ve checked the transcripts, and in all episodes to date, the word “process” appears only twice, both times in episode 9. And yet questions about process — legal, journalistic, even the process of creating the podcast — arise throughout.

In episode 8, “The Deal With Jay,” host Sarah Koenig delivers a stark comparison about how differently law and journalism handle facts. The comparison occurs while Sarah discusses the case against Adnan Syed, convicted of the murder of ex-girlfriend Hae Min Lee, with former homicide detective and expert on false confessions, Jim Trainum.

Jim Trainum: It’s an actual term; it’s called “bad evidence.” Right. You don’t want to do something if it is going to go against your theory of the case.

Sarah Koenig: But then, see, I don’t get that. I mean that’s like what my father always used to say, “All facts are friendly.” Like shouldn’t that be more true for a cop than for anyone else? Like, you can’t pick and choose.

JT: Rather than trying to get to the truth, what you’re trying to do is build your case and make it the strongest case possible.

SK: But, how can it be a strong case and how can he be a great witness if there’s stuff that’s not true or unexplained?

JT: …The comeback is that there is always going to be things that are unexplainable. Like I said, also remember, verification bias is kicking in here as well. “I want to believe you, you know, because you’re my witness and I think this is what happened,” and all that. “So, the fact that you’re giving me something that’s inconsistent, that doesn’t fit my theory of the case.” What does verification bias cause you to do? Ignore it and push it aside. And that’s what they’re doing here with these inconsistencies; they’re kind of pushing them aside.

As Trainum explains, to Koenig’s dismay, not “all facts are friendly” for investigators and attorneys on criminal cases. Investigators often cherry-pick facts that support their hunches and turn away from facts that point in other directions.

As for lawyers, they are advocates. A lawyer’s responsibility is to his client and the law; it’s not necessarily to “the truth.” That may seem strange or cold, but that’s our system. Celebrated trial lawyer and federal Judge Simon H. Rifkind had this to say about the matter:

“Both the prospect of litigation and its actuality impose great restraint upon the attorney and challenge his learning, his wisdom, and his capacity to prophesy. It also relieves him of much responsibility. In the course of his advocacy, he may urge propositions of which is less than certain, because the lawyer is not the final arbiter. The final judgment will emerge from the contest.”

In our legal system, it’s the adversarial process that is responsible for the truth, not the lawyer. This odd feature of our trial system was succinctly summarized by Rifkind as “the bizarre arrangement by which the State hires one lawyer to prosecute the citizen for an alleged crime, another to defend him, and the third to decide between them.”

RELATED: After ‘Serial’: What’s next for Adnan Syed’s case

In law, we don’t trust individuals with the truth, but we do trust a legal process to discover and defend it. Battles during jury selection, fights over the discovery and presentation of evidence, the examination of witnesses, opening and closing arguments and the strict observation of the rules of procedure — all this tumult is supposed to create a process that guarantees fairness and a method of truth-seeking superior to reliance on a single investigator. As Rifkind puts it, “In the fire of that antagonism a more refined truth is smeltered and a better judgment is filtered.”

In a sense, an American lawyer is relieved of his duty to the truth so he can focus on his duty to the client and the observance of the process. A journalist, on the other hand, has a single-minded responsibility to the truth itself. This is why lawyers and police officers in “Serial” can distinguish between “good” and “bad” facts, while Koenig must take all facts as they come.

“Serial” makes two golden contributions to questions about this legal process.

1) “Serial” forces us to question whether our criminal justice system is fair

Why didn’t investigators push further into obvious holes in Jay’s story? Why is Koenig discovering critical and fundamentally relevant facts about this case that were never presented to the jury at trial? Why didn’t Adnan’s lawyer, Cristina Gutierrez, drill harder into Jay’s story during her cross-examination? Why didn’t the cops search Jay’s house or subject him to a lie detector test? If juries in murder cases are supposed to convict only beyond reasonable doubt, why do so many brilliant legal and non-legal professionals featured in the podcast express grave doubt about this case?

There may be perfectly good answers to all these questions, but “Serial” at least urges us to ask them, raising our awareness of the system’s potential shortcomings.

2. “Serial” raises larger doubts about our adversarial legal system 

Some of the jurors interviewed for the podcast were shocked to hear new information about Adnan’s case that was available to investigators and attorneys but never presented at trial.

If journalism can bring important facts about Adnan’s case to light, what does that mean about ways we could improve our current legal process?

Is it enough to leave it up to lawyers to decide which facts and narratives are worth presenting at trial? Do lawyers have the right incentives to get the most important facts to a jury, or are critical facts routinely left out of trials due to problems like and flooded criminal dockets that beleaguer our adversarial system today? Do we need to change the rules governing criminal procedure, and should we experiment with non-adversarial systems?

Telling us a story: The “Serial” production process

“Serial” is, above all, a finely tuned production. Each musical cue, each host monologue, and every recording of a phone conversation with Adnan or interview with a friend is placed in a well-timed sequence that Koenig and executive producer Julie Snyder have slaved over. Despite attempts at neutrality and openness, “Serial” is a story.

As listeners, we’re forced to consider that there may be no neutral real story behind each interviewee’s account. There may only be stories and their retellings: the stories journalists tell us on the news and the stories lawyers tell jurors in court. If there is such a thing as truth, we may never know it.

The impossibility of truth and implications for our legal system

This might seem like pointless navel-gazing but the impossibility of knowing the truth raises serious doubts about those serving life sentences in prison.

In criminal law, we convict individuals based in part on their mens rea, or the state of mind they were in when they committed crimes we as a society have deemed punishable. In order to convict a defendant at trial, the prosecution must prove a state of mind that constitutes criminal intent.

Sometimes, the mens rea of the accused can mean the difference between parole and no parole; between a life sentence and a 30-year sentence. Consider this: Do you think that anyone — besides perhaps Adnan, Jay and Hae herself — will ever know who really killed Hae Min Lee? And even if we did discover with absolute certainty the identity of Hae’s killer, would we ever really know precisely what was going on inside the killer’s mind before, during and after the killing?

If there is no discoverable fact of the matter, how is it that we are adjusting sentences and convicting criminals on the basis that we know precisely what degree of criminal intent they had as they carried out the act?

At its barest form, “Serial” has cast doubt on our ability to estimate moral responsibility and legal culpability, on our capacity to know why people do the things they do and whether — and to what degree — we can hold them criminally responsible.