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The problem with true crime podcasts

Whether it’s investigations into unsolved crimes, unidentified crimes or suspected wrongful convictions, we simply can’t get enough of true crime podcasts. According to an ABC survey, 44% of podcast consumers have listened to a true crime podcast, up from 30% in 2017.

As a result, more and more true crime podcasts are being made. But do they help us better understand the justice system or do they encourage bias by presenting carefully curated but incomplete information and, often, just one side of very complicated stories?

‘The makers of podcasts are not bound by legal principles and statutes, so they can often come to conclusions or point the finger at people in a way that may not be able to be sustained in a criminal court,’ says Professor Marilyn McMahon, Deputy Dean of Deakin Law School at Deakin University.

Here are three key legal considerations to keep in mind when you’re listening to true crime podcasts.

Everyone is innocent until proven guilty

Unlike your favourite legal drama series that’s fictitious even though it resembles real-life law, true crime podcasts are based on real people and real cases. This means a core legal principle applies: a person is innocent until proven guilty. In a court of law, that is: not a podcast.

‘What we know from social science research is that media can have a strong influence on people’s perceptions of a particular accused and their likely innocence or guilt,’ Prof. McMahon explains.

‘Podcasts can present a great challenge to the fundamental legal presumption that a person is innocent until proven guilty. They frequently focus on a person of interest, provide very detailed and persuasive evidence that the person is the offender while disregarding any contrary information, thereby creating a narrative that’s both memorable and influential.’

Plus, Prof. McMahon says the person identified as the suspect doesn’t usually have their side of the story presented. They may have declined to be interviewed or perhaps were not even invited to participate.

‘True crime podcasts usually tell one side of the story and while they often generate serious concerns about the involvement of a particular person in a crime, they don’t necessarily provide evidence that satisfies the legal standard of proving someone guilty beyond reasonable doubt. Consequently, we have to accept that podcasts often don’t start with the presumption of innocence or satisfy other legal standards.’

Much of the evidence is inadmissible in court

One of the reasons why true crime podcasts are so popular and influential is they discuss all sorts of evidence and interview people who’ve been involved directly or indirectly in the crime – friends who overhead arguments between the deceased and their spouse, neighbours with theories on whodunnit and former police officers tinged with regret about not doing more to help. What’s more, podcasts are free to delve into the criminal history of suspects and reveal if they’ve been arrested or done time.

'Podcasts can present a great challenge to the fundamental legal presumption that a person is innocent until proven guilty.'

Prof. Marilyn McMahon,
Faculty of Business and Law, Deakin University

The trouble is that much of this is inadmissible in court, explains Professor McMahon. ‘Evidence at trial is subject to really significant constraints,’ she says. ‘Evidence has to be legally relevant, and the legal definition of what constitutes relevant evidence is quite strict and probably a lot more restrictive than what most lay people would think is appropriate.’

Hearsay – evidence based on something a person didn’t see, hear or experience but knows only because someone else told them – is usually not allowed at trial and there are also strict limitations on introducing evidence of an accused person’s prior convictions.

‘In true crime podcasts people often repeat things they’ve been told, that they didn’t actually witness themselves, which may fall under restrictions in relation to hearsay evidence and not be admissible at trial,’ Prof. McMahon says.

‘In addition, while prior convictions are relevant at the sentencing stage, unless exceptional circumstances apply, you can’t introduce evidence of a person’s prior convictions when they’re standing trial accused of a particular offence.

‘There’s a real difference between what’s admissible and very influential in podcasts and what can happen at a criminal trial.’

The justice system is working behind the scenes

Listen to one too many true crime podcasts and it’s easy to think podcasters are the only people investigating cold cases. Quite the contrary, as Prof. McMahon explains.

‘We have in all police forces in Australia what is effectively a “cold case” unit,’ she says. ‘Every police force has a section devoted to working on unsolved cases where the criminal investigation has been wound down or completed.

‘Police may have identified a person of interest but not have enough evidence to charge them, or they may not have identified anyone at all, but continue to work on these cases. DNA is particularly influential.’

Need a break from true crime podcasts? Check out these popular pods.

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Prof. Marilyn McMahon
Prof. Marilyn McMahon

Deputy Dean, Deakin Law School, Faculty of Business and Law, Deakin University

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