As some of you know, I’m beginning to work on a new project that sits at the intersection of new media, victimology, and law enforcement. I’m interested in the true crime podcast community, especially in podcasts targeting unsolved crimes. One of the questions I’m deeply interested in is the give-and-take between official law enforcement and podcasters (whether family members of the victim or third parties), which seems to range from hostility, through begrudging acceptance, all the way to pretty warm cooperation.
One notable example is Chris Lambert‘s excellent podcast Your Own Backyard, which is a thorough investigation of the disappearance of Cal Poly student Kristin Smart in May 1996. Lambert, who started off as an absolute stranger but established a warm collaborative relationship with the Smart family, has produced a true investigative masterpiece, chock-full of resources, first-hand testimony, circumstantial evidence examination, and intelligent inquiry into various forensic science disciplines (including human remains dogs and ground-penetrating radar). Most remarkably, Lambert’s podcast not only reawakened public interest in Smart’s disappearance, but also brought in new witnesses from the woodwork. Lambert’s dogged perseverance, intelligent analysis, and commitment to finding out the truth earned him the trust of the surrounding community and of law enforcement, and it looks like the police greatly benefitted from his work.
Throughout the entire lifespan of the case, there was only one viable suspect in Smart’s disappearance: fellow student Paul Flores, who helped an inebriated Smart get home from a party and was the last person to see her alive. Flores and his parents acted evasively and suspiciously over the years; Lambert’s investigation revealed that Flores was a predator who made women uncomfortable before Smart’s disappearance and, years after the event, a prolific rapist of multiple women. As Lambert provocatively posited in the podcast, Flores would have to be the unluckiest man alive for Smart’s disappearance to have been a coincidence.
Smart’s body was never found, but there was some evidence of human remains at Flores’ father’s house. The San Luis Obispo DA decided (thanks in great part to Lambert’s work and the evidence unearthed by the podcast) to charge Flores with murder and his father with being an accessory after the fact (to solve the confrontation problems in trials with codefendants, there were two different juries attending the same trial; I can talk more about this method, and how effective it is in solving Bruton/Gray/Cruz confrontation problems, in a future post). In March, the jury convicted Flores of the first-degree murder of Smart, and he was sentenced to 25-years-to-life in prison. This is a remarkable result given the passage of time and the hurdles in prosecuting no-body homicides.
I recommend listening to the whole podcast–it’s truly one of the better exemplars of this genre. One of the many things I find interesting, though, is the extent to which the existence of the podcast and its centrality to the case played a part in the criminal trial. In an effort to remain objective, Lambert, who recounts the trial in the later podcast episodes, matter-of-factly reports courtroom mentions of his own podcast without editorializing. But the defense (as a defense attorney, I gotta give kudos to Robert Sanger for what I think is undoubtedly a pretty heroic showing of professionalism with a client who is a pure, unadulterated garbage of a human being) repeatedly refers to the podcast and its encroachment on the case. Witnesses are asked about their participation in performative support for the Smarts (such as the entire investigative and prosecutorial team wearing purple, Smart’s favorite color) and about the extent to which the podcast propelled them to step forward. I’m pretty sure there will be arguments aplenty about bias and prejudice on appeal, and I worry that the podcast’s huge contribution to the investigation will seriously backfire.
Which brings me to one of my concerns about new media and law enforcement in general: Overall, I’ve been really impressed with the power of podcasts, especially their contribution to diversifying and enriching the victims’ rights movement. But is it time to have a sit-down, perhaps at CrimeCon, and set up some ethical rules, or best practices? Not everyone is Sarah Turney or Chris Lambert, not everyone does their homework in a dogged, meticulous way, and I worry that the need to come up with provocative encounters, confront suspects, dig up drama, etc., might backfire especially when podcasts finally succeed in greasing the wheels of the criminal process. Some things I think are worth considering are:
At what point should podcasters who are not themselves related to the victim reach out to the victim’s family? Is it ever okay to produce a podcast that the victim’s family does not support? What if the podcast casts suspicion on the family itself?
What kind of relationship should podcasters foster with the police? At what point should they hand evidence over to the police? Is this relationship akin to the police’s communication with traditional journalists?
Who owns footage obtained and produced by podcasters? Is there ever some sort of evidentiary privilege akin to the one granted to traditional journalists?
How much verification is required from podcasters (say, by contrast to police detectives checking alibis or triangulating evidence)?
What are the rules of engagement when reaching out to suspects? If podcasters take risks, how, and to what extent, does the police need to support and protect them–especially when law enforcement does not think that confronting the suspects is prudent?
Do podcasters have responsibility for the public chatter generated around the podcast? Wild theories, blame casting, and garden-variety shitposting that might happen, including, for example, posts that disparage the victim and/or their family?
What are the considerations that govern the way in which the story is told? For example, is it ethical to refrain from disclosing certain incidents/developments out of artistic concerns, or to make the narrative more dramatic and engaging? And what about the tone of reportage? Some of these podcasts (emphatically, NOT Lambert’s or Turney’s) have a humorous, flippant tone–is that something that should be frowned upon, especially if the victims’ families are not on board?
I’m interested to hear from you what other concerns/thoughts you have about these podcasts. And let’s keep tabs on the appellate process in the Flores case.
Comment: I’m still in Israel by my dad’s bedside – I write just to have a placeholder for ideas that pop in my head during my morning run before I head to the hospital every day. Please, no cumbersome professional requests during this trying time for me and my family.