10 Things People Don't Understand About 'Serial' Unless You're a Criminal Attorney

I've noticed that most people listening to "Serial" don't know some key facts about the criminal justice system. Here are some of the most common misconceptions I've noticed about people's comprehension of the legal system which ultimately we are all beholden to.
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Yes, I'm as obsessed as everyone about the most popular podcast ever, "Serial," which has resulted in the inevitable discussions and theory trading with everyone I know. I've even listened to some of the podcasts about "Serial," but in reading and listening to all of the commentary (yes, I couldn't resist taking a peek at the Subrredit), I've noticed that most people listening to the show don't know some key facts about the criminal justice system. Below are some of the most common misconceptions I've noticed about people's comprehension of the legal system which ultimately we are all beholden to. One important disclaimer: None of this is intended to support either Adnan Syed's guilt or innocence; it's simply meant to help create a more nuanced understanding of the facts.

1. Testifying in your own defense, even if you're innocent of the crime, is a huge, HUGE, risk.
People, and unfortunately that includes jurors, often think, if the defendant really didn't do it, why doesn't he just tell us so. And that's a natural assumption because that's how it works in real life -- if you weren't texting an ex those photos, than tell me who were you texting, or if you didn't eat the cookie, who did! In real life, you can't just respond to those questions by saying I refuse to answer because if you did, you would look guilty. Silence on the matter doesn't seem justified because we think the innocent person has nothing to hide. But it just doesn't work like that in a trial where you live within a bubble of what the law allows in as evidence. Sometimes very important relevant pieces of information cannot be admitted because of rules that have to do with the system. If you've ever watched Law & Order, you've heard of the "fruit of the poisonous tree," or every Prosecutor's worst nightmare: finding the smoking gun evidence (drugs, murder weapon), only to have it thrown out because the police conducted an illegal search. Yet, this is an important part of the system because without it, there would be a lot of illegal police searches. So think about how different just that one rule is from real life -- would you ever say to your partner, "Because I got the pictures of you cheating from an illegal search of your phone, I will not hold them against you and pretend I have no knowledge of the incident?"

All of this is to say that even if the defendant is innocent, there are very good reasons not to testify that have no bearing on the defendant's guilt. The most common reason being that usually the defendant has been arrested before which is only considered admissible evidence if the jury is being asked to judge the credibility of the defendant (i.e. testifying) because we don't want the jury to think an innocent guy is guilty just because he was arrested for a previous crime.

However, in Adnan's case, he not only didn't have a record, he had the type of life that you'd want to bring in as evidence because it showed exemplary moral character. But still, even in this type of scenario, having your client take the stand, is one of the biggest risks a defense attorney can take. Cross-examination is a dangerous proposition for even the strongest of witnesses. It's nerve wracking, the witness is constantly scared he/she's going to say something 'wrong,' and usually a good lawyer can poke holes in anyone's story. Testifying can last for days, gets tediously boring or confusing, and imagine that for hours everyone in a courtroom is staring at you till it feels like their eyes are boring a hole in your head while they simultaneously try to look for the slightest hint of guilt in your demeanor -- a tone of voice, a nervous tick, a look to the client's attorney are all things that have been used by juries many times to determine guilt. Are you sure you could react the way a jury would expect you to react even if you were telling the truth?

So what often happens is the defendant tells the story clearly on direct (while his/her own lawyers questions), while the prosecution is carefully culling every word the defendant uses to find something to tease out that will undermine the testimony. For instance, if Adnan had testified, he might have said he was upset when he broke up with Hae, but that he got over it and started dating other girls. A prosecutor would then ask questions like: You say you were upset over breaking up with your girlfriend, but isn't it fast to get over a serious girlfriend, you truly cared about, in just a few weeks? And then Adnan is trapped because if he says, "No, I was totally over her by the time of her disappearance," the prosecution suggests that this is unrealistic and the average person wouldn't have moved on yet (hinting to the jury that he's lying), but if Adnan says "Well, I was still upset about Hae, but I was getting over it by dating," then the prosecution gets to argue in closing, look how obsessed Adnan was with Hae -- it was weeks and there were other girls that wanted to date him, but he couldn't stop obsessing about Hae! This is why a good lawyer can poke holes in anyone's story and then use that against you - which is why the 5th amendment is so important and also why as a listener of "Serial" you should not be making any inference on Adnan's guilt or innocence based on his not testifying.

So Christina Gutierrez's decision to not have Adnan testify was not necessarily a bad one. It was a safe one. Every defense attorney only risks putting the defendant on the stand as a last resort. Because ideally, if you're doing a good job and poking holes in the prosecution's case, you can convince the jury to acquit without needing your client to testify. Christina clearly had a reputation for being a good defense attorney when she took Adnan's case and her decision to not have Adnan testify was likely a cocky one, but not prima facie a bad one.

2. Stories always change in retelling because people don't have perfect memories, even when they're telling the truth.

Sarah Koenig is generous in understanding the reality that it can be hard for anyone to remember where exactly he/she was six weeks ago. But she seems rather critical, as do most people, and as do most juries, of the slightest change in the retelling of a story, and Sarah particularly harps on the differences when it comes to Jay.

Think about a story you tell often. Maybe it's a break-up story, your engagement story, the how you met your spouse story, or the worst holiday get together you ever went to. You will likely notice that it varies a little with each retelling. Sometimes you have less time so you tell the short version. Sometimes you're drunk and people are finding you hilarious and you're telling the long version with all the jokes. Sometimes you cut out the worst parts because it's not appropriate at work. Sometimes you avoid emphasizing the love part because the listener has just gotten divorced. Sometimes, you're exhausted and starving, and you don't tell it as well as usual because your brain isn't working well. If you've ever practiced telling a story for a speech without notes, you've likely either forgotten something or added something when you finally performed it. Because that's how our brains work. Not only are our memories imperfect (really suggest you read this recent article to realize how imperfect they are), but even when we do remember things perfectly, we just tell the story differently at different times.

I have no comment on Jay's guilt, but I find it interesting that so many people interpret the variations in his story as he must be lying. He might be lying. But a lot of witnesses who tell the truth often have variations in their stories because that's human nature. In prosecuting domestic violence cases, it was very hard to listen to a defense attorney grill a victim on the slight variations in her story, when I wanted to stand up and shout to "Of course, when the defendant was outside the bathroom door with a knife she left out some details with the 911 operator that she later told the police after the guy was arrested!" But of course, I didn't and the defense attorney was just doing his job in pointing out these variations.

And as stronger evidence emerges about how common it is to misremember something (see the above article), it's more important to accept that the choices aren't this person is either telling the truth or lying. There's a third choice that this person might have conflated events. It's very possible Jay is honestly remembering a different day when he talks about getting high at Patapsco State Park or remembering a different parking lot when he talks about phone booths. And it's possible that part of the problem was that Jay was lying in the beginning when he denies all involvement in Hae's murder and then when he goes to try and tell the truth, he doesn't remember everything perfectly.

3. Christina Gutierrez's tactics were probably very useful for many of her clients.
The vast majority of criminal defendants lead lives that are very different from you. It's unfortunate that the stories that get the most attention are not at all proportionately representative of most of what the criminal justice system looks like. If you want to understand what the legal system really looks like, turn off Court TV's coverage of "true crime" which covers a disproportionate amount of trials of pretty white women and watch "The Wire." Most defendants have been in trouble before, most of them know the system, which, side note, is why it's easy for us to allow the system to continue victimizing them - those people don't have lives that are relatable to many of us, so it's easy to demonize them. However, when Adnan, a good kid from the suburbs, or a white mother, or a celebrity get prosecuted for something, we're all riveted by it because we relate to the defendant.

So Christina Gutierrez's approach, which I know irritated most listeners of "Serial," was probably very effective for many of her clients. People thought she sounded overly aggressive, they didn't like the sing-song nature of her cadence, and she generally came off as unlikeable. That may have been a mistake in Adnan's trial and, perhaps, a gentler, more respectful, approach would have ingratiated her with the jury when many of the witnesses came off as sincere and likeable. But for the average criminal defendant, Christina probably seemed like a white knight. Her "hard-scrabble" aggressive nature might have well-served the average murder defendant who might not have ever had someone go to bat for him/her. And juries take into account how much defense attorney seems to believe the case. If they like a lawyer, they might say "well I don't think that lawyer would defend this guy unless the lawyer knew he/she was innocent." So watching a "white lady" get dirty trying to fight for the freedom of her client might sway jurors.

Plus, one of the biggest battles lawyers have to fight in a courtroom is boredom. Boredom is hard to portray in any media outlet, aside from CSPAN, so it doesn't get talked about much in courtroom TV or movies. But if you've ever sat on a jury, you can probably attest that it's hard to pay close attention to everything, even when you want to! For instance, before an expert can testify, the law requires that the attorney lay a foundation, which basically means, the expert has to first testify about why he/she is qualified to give expert testimony. Sometimes, this can result in hours of questions which basically result in the witness sounding like he/she is reading a resume. It is very hard to keep a jury engaged in something that seems tenuously connected to the case. Sometimes, you can even feel a jury looking at you like "OK, I believe you already, this guy is genuinely an expert," but I can't stop asking questions because I know the other side is going to challenge my expert later so I have to get this testimony on the record. So trial lawyers develop their own tricks to keep the jury interested. We make eye contact, we talk loudly, we walk over to them, we emphasize an important point three times till the other side objects with "asked and answered." We use posters, or power points with a heading so that if the juror does drift but then comes back, we can refocus their attention. Christina's cadence might be annoying, but it also might be very effective in commanding the attention of everyone in that room, the importance of which cannot be overstated.

4. Forensics often yield nothing. (Ballistics too.)

Trial lawyers call this the CSI effect. The vast majority of jurors have at one point or another seen some legal issue that has talked about forensics. And usually the portrayal on TV provides a smoking gun so that we can tie the bad guy to the crime with indisputable science. But a lot of time, forensics don't prove anything useful. (Trial lawyers often have to deal with juror expectations because of the CSI effect and explain that it is very typical that there is no useful forensic evidence in this case which is annoying because we literally have to take precious time of the jury's attention to explain why there not going to see something and how normal that is.)

But many criminal investigations lead to no useful forensic evidence especially when you realize that aside from DNA testing, a lot of forensics have not been scientifically validated. So while actual biological evidence like blood and semen are substantiated by the scientific community, they are only used in about 5-10% of criminal cases. That means 90-95% of cases either have no forensic evidence or are using forensic evidence that has not been subjected to the kind of scientific rigor of blood sampling. This includes "hair microscopy, bite mark comparisons, firearm tool mark analysis and shoe print comparisons." (So things you probably think are true are wrong, if, for instance, you believe that no two bullets will produce the same markings, you would be incorrect.) This means that it's very typical to not have reliable forensic evidence pointing to the defendant as we have in Adnan's case.

5. Beyond a reasonable doubt is not the same thing as beyond a shadow of a doubt.

The vast majority of "Serial" listeners seem to have coalesced around a single conclusion: Adnan probably did it, but there definitely wasn't enough evidence to convict. But most of these people might have been easily convinced to indeed convict in a jury room because many people seem to misunderstand what beyond a reasonable doubt means. Reasonable doubt does NOT mean that you have to believe the defendant was guilty beyond all shadow of a doubt. And in fact, it would be unconstitutional for jury instructions to say that the jurors must be convinced of the defendant's guilt beyond a shadow of a doubt. Reasonable doubt means that you as a juror have "grave" substantial doubt about the defendant's guilt. So if you are willing to concede only that it is possible for someone else to have committed the crime, you can also still lawfully and rightfully believe beyond a reasonable doubt the defendant was guilty.

It's also unconstitutional to quantify reasonable doubt. So if you are 75% sure that the person is guilty, you may or may not be convinced beyond a reasonable doubt - actual numbers mean different things to different people. When I was a prosecutor, in order to explain the burden of proof, I used to tell a story during jury selection about how when I was little I got mad at my sister and kicked a hole in our bathroom door and when my parents got home, I told my mom termites did it. My mother had to decide if I was guilty, but since we didn't have any termites that she could find, and the hole looked like a little foot had kicked a hole in it, and my sister ratted me out, she quickly became convinced beyond a reasonable doubt that I was the culprit. Was it possible that something else caused that hole? Absolutely. Were her doubts that the hole was caused by anything but me reasonable doubts? No, so she was convinced of my guilt to the exclusion of reasonable doubt. This means you can be less than 100% sure that person is guilty and still be correctly applying the law in finding the accused guilty. So if you think Adnan killed Hae, but it's possible that Jay might have done it, you have to ask yourself if your suspicion about Jay is reasonable to you, before deciding what you would have done in that jury room.

6. Lawyers often argue theories that bear little similarity to the defendant's experience of the facts.

People shouldn't find hypocrisy in the fact that Adnan both thinks Christina Gutierrez did a good job for him and that simultaneously, his current appeal is dependent upon a finding of ineffective assistance of counsel. Lawyers have a responsibility to not just do a good job for their clients, but to "zealously" represent their clients to the fullest extent allowed by the law. As in, it's a lawyers job to fight as hard as he/she can and to fight with every single arrow in the quiver for his/her client.

There was a case recently in the press because a school district was defending itself in a civil lawsuit where a teacher had sex with a student, and the attorneys for the district alleged in court that the student was old enough to consent to the sex and therefore the district was not liable. People were morally outraged that the lawyers would make this argument in order to exculpate the district. You might find this notion of a minor being able to consent to sex with a teacher morally repugnant, but the lawyer was actually bound by law to provide the best defense for his client and couldn't leave a viable legal theory unturned because he thought it might irk a scrupulous public. In this case, the state laws are quickly being changed to disallow this in the future, but at the time the lawyer would have been remiss in his job if he didn't pursue the theory. Would the lawyer be representing his client zealously if he saw a legal theory available to help his client and he didn't take it? This is why a lawyer can simultaneously argue that his/her client didn't do it, but if the client did do it, it was mitigated by certain factors. Lawyers are bound to do their best for their clients regardless of how their arguments appear to outsiders.

By comparison, Adnan doesn't need to believe his lawyer was bad, for it to be valid for the court to find ineffective assistance of counsel. His current lawyer is doing everything he can for his client and what he argues in court should not stand in for how Adnan has to feel.

7. Sometimes lawyers are better off just poking holes in the prosecution's theory than providing an alternative theory of who is guilty.
This is true because not every defense attorney is Matlock. Even if you believe 100% that your client is innocent and you are doing every single thing possible to get your client freed, you still might not know who really committed the crime. And if you can't be sure of who did it, it can be a risky proposition to point fingers. If you suggest that Witness A committed the crime, with the wrench, in the parlor, on the first date of the month, all the prosecution has to do is trip you up once for your theory to fall down. If the prosecutor can prove Witness A was working at the time you allege the crime happened, poof your theory is blown - even if Witness A was the real murder and you just got the date wrong, it seems like your whole story is made-up. The jury is likely to go with the safe bet and convict the guy that the police thinks really did it and is already on trial. The firmer you are on your alternative theory and the more facts you present, the easier it is for you to make a mistake. And after all, if it was really that easy to prove that Witness A did it, the police probably would have arrested him in the first place.

So sometimes, instead of providing a concrete alternative theory, you're better off just suggesting, or even just hinting, that it might be Witness A. Your time is better spent showing why the prosecution's case is weak because then you don't have to prove that witness A did it, you just have to give the jury enough reasonable doubt to be unsure that your client did it. For Christina to put all her eggs in the Jay did it basket could have been a very risky decision, for just this reason.

8. Most people in the criminal justice system are motivated to get the right guy.
When Sarah Koenig discusses the prosecutors, the judge, the police detectives, it's very easy 15 years later to attribute ulterior motives to them. But most people in the justice system really want to get the right person, regardless of race or religion. Getting to be a detective is not easy and whatever issues you might have with the police, most people's interactions with the police are with police officers on patrol - the rookies, if you will. Detectives commonly have to work on patrol for a minimum of four years, take tests and interview, and once they do become detectives, the have to work in narcotics or traffic or vice, and then finally they might graduate on to homicide. Of course, there are bad apples, but most police detectives are good at their jobs and are motivated for the right reasons. Usually, they start by talking to the victim's family, which is a gut-wrenching job, and the solace they provide in that moment, is telling the family that they will do their best to find the person who committed the crime and most of the time, they mean it.

So when "Serial" listeners say that the police just pinned the case on Adnan because it was easy or because he was Muslim, they're not referencing the reality that is most likely to apply to Detectives MacGillivary and Ritz. They most likely pinned it on the guy they truly believed had killed a young girl. That's not to say that detectives are perfect and never make mistakes. But the percentage that actually pin crimes intentionally on the wrong guy are a very very small group.

9. The Innocence Project is up against worse than you think.

The Innocence Project does incredible work, (in fact, I encourage you all to donate money to their cause), but in order to get a judge to reopen the case, they have to come up with more than new evidence. Even, if they find new relevant forensic evidence, that still might not be enough to get Adnan freed. The criminal justice system is set up so that once a verdict has been reached, it is very hard to undo. So much so, that sometimes when another person confesses to the crime and even the police think the wrong person was convicted, it can still be hard or impossible to release someone found guilty. Finding new DNA, new semen, new fibers, new evidence of a third party all might not be enough to get a judge to reopen a case. The cases you usually hear about where the innocence project frees an innocent man, often come from very clear DNA - like a woman was raped and murdered and the DNA not only doesn't match the person convicted but actually matches the DNA of another known rapist. In fact, the Innocence Project usually only takes cases where DNA could prove the innocence of the defendant. There is a heavy burden to call into question a jury verdict and in fact, the appellate courts are bound to give deference to the final judgment of a jury. The greatest deference is given to findings of fact, so an exception, where a judge would consider new facts, usually only occurs when a judge can determine that the findings were clearly erroneous which is a very high standard.

You saw the results of this deference in regards to the appeal regarding Asia McClain. The judge was bound by the law to give deference to the trial which had already taken place and though an alibi witness might seem like a good argument to have a new trial, it was not surprising to most criminal attorneys that this was not enough to overturn a jury verdict. It's very hard to undo a jury finding.

10. Murderers are just like you.
Sure, some of the murderers in the criminal justice system are hardened criminals who show no empathy. But many people who commit murder would have never thought they were capable of something like murder. They didn't think of themselves as bad people and they didn't lead their lives that differently from you. This idea that by knowing someone intimately means you can tell whether or not they are a person who could commit murder is a complete fallacy. We don't know what anyone is capable of under extreme circumstances - that means your spouse, your parents, your pastor - no matter how well you think you knew them, you cannot definitely say what they would or would not do under duress or in a blind rage.

Most murderers who admit their guilt come with a network of people who would have never guessed what the defendant was capable of. No matter how smart you are, you cannot fully understand the exponential complexity of human nature. If you have ever done something that seemed out of character or which resulted in you asking yourself why did I do that, you are proving how impossible it is to predict behavior.

Hope that helps bring some reason to your "Serial" obsession.

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