Outside Counsel

Binge listened to Serial on the drive to take LCA back to school. It is interesting for several reasons: one is that it is a way of telling a story without a resolution. In that way it is more of a story about constructing a story, which is very meta. It is also interesting because it (perhaps inadvertently) is a story about the difference between how a reporter/storyteller develops facts, and the way that lawyers/storytellers tell stories. I think the guy got poor lawyering, but there is a lot about the lawyering that we don't know, because (a) the lawyer is dead and can't explain her decision, and (b) the reporter isn't really equipped to explain or understand them anyway. So as a lawyer listening I think I hear it differently.  I think that law is a useful critical tool-- but I also think that just understanding narrative is an important critical tool as well. I do not think that most of the audience recognizes how they are being manipulated. Both Serial and its obvious ancestor,  In Cold Blood illustrate really effectively why the law of evidence works the way it does. Hearsay rules are weird because it seems like good information should be the same as more information. But it isn't. Being told that someone has big brown innocent eyes, or reading a diary, or really most of what the reporter seems to be relying on just doesn't have much value as evidence. And UB's own Professor Charles Ewing saying, well, I've seen this or that-- while interesting-- really doesn't either. What makes him seem reliable is that he confidently asserts that in these other cases he was able to get at the Ultimate Truth. What I hear is that Ewing thinks he's pretty clever, but I'm not so sure that  Ultimate Truth is available when you are operating at any sort of remove from the actual events. Once it turns into narrative it is suspect, because narrative is a persuasive tool, and our mind seeks out narrative. We have a cognitive bias towards narrative, and impose it even where it doesn't exist. It is also not clear how Ewing came into the picture. I have a feeling that he had listening to the podcast and called the reporter. I suppose he might have been sitting minding his own business in O'Brian Hall and gotten a call-- he is well-known in the field-- but I would want to know the background on that. ( He says he got a call out of the blue. It says something about the program-- or maybe my own journalistic sense, that I am reminded that if your mother says she loves you, check it out.)

It's all confirmation bias, really. The whole story is about believing what you chose to believe. It's funny also, because radio works so well as a persuasive tool. You don't notice the quiet background music, for example, but that is setting you up. When Sarah Koenig. is talking about background, the background sound is one thing, then when she is interviewing people the background is telephone ambient, and when she is going somewhere and there are road sounds, or when she plays recordings from the trial-- it all sounds different, and we respond to each differently. And although I recognize that, I can't say that I have ever read anything that speaks to the effect it has on our perception. I think that a lot of the things that she looks into are irrelevant. I also think that one of the ways that prosecutors operate is to construct a narrative, and that the proof that follows that narrative gets shaped by the narrative-- and that is misleading.