I’m listening to Serial — arriving late to this strange new media phenomenon — and in Episode 2 a diary appears: the young woman who was murdered, Hae Men Lee, kept a diary and it is read into evidence at the trial against Adnan Syed.

Which got me thinking about diaries as evidence in legal cases.

I have to admit that is one of my fears — one of the two main reasons that I consider destroying my own diaries: that something will happen that will result in my diaries being taken away by police investigators and read by them as they attempt to solve a crime. It really doesn’t matter what the crime is — whether I am being investigated or whether I am the victim — either way, I do not want my diaries read in this context. (The other reason, in case you’re wondering, is the polar opposite scenario, one in which people closely related to me read my diaries — like my parents or siblings. Ugh.)

Listening to Hae’s diary being read in the taped transcript of the trial I thought, really? This really counts as legitimate evidence in a murder trial? I’ve written before about the trope of the discovered diary in mystery novels and how it’s such a cliché that most authors wouldn’t dream of deploying it straight. Who is going to believe that a diary provides the clues necessary to solve a crime?* Listening to a non-fictional instance in which that — or something close that — actually occurred was eye-opening for me. Hae’s diary is no “smoking gun,” pointing a finger directly at Adnan as her killer. Instead, it’s used in the trial (as far as I could tell) to establish the character of their relationship, that the end of the relationship had caused emotional pain but that Hae had moved on to her new boyfriend — contributing to the prosecution’s case regarding Adnan’s motive.

And the phone number, of course. Hae writes Adnan’s new phone number in her diary, proof that he called her the night before. That bit of marginalia is completely fascinating from a textual studies point of view, demonstrating how diaries can be used for numerous, unpredictable, spontaneous, and revelatory purposes.

But: does the diary actually bear the weight of evidence?

Diaries are generally unreliable, unstable, piecemeal, deeply interior texts. They provide only a glimpse of a portion of a constructed version of the diarist’s life. When I think of how much my own diary leaves out, all the things that happen in my life that don’t make it onto the pages of my diary because I am too busy to write or they appear insignificant … well, suffice to say that my diary is no accurate representation of my state of mind, my relationships, or the kinds of incidents that could serve as clues in an investigation.

As a literary critic, the incompleteness, unreliability, and interiority of a diary are not a problem. The tools of literary analysis enable us to identify these issues and investigate their meaning. Literary critics are not looking for “truth” (what really happened) or “motive” (why did X do what s/he did) or “timeline” (when did X happen). We are looking for voice, structure, construction of identity, language use, representations of time and space — the kinds of things that make diaries rich for textual analysis but poor for legal evidence.

Nevertheless, including Hae’s diary in the trial seems like a smart move on the part of the prosecutors. They have one of Hae’s friends read the diary in the courtroom, a young woman of roughly the same age as Hae, and this seems to me like an effective way of engaging the jury’s sympathies. It gives Hae a voice — and, because the diary is thought to communicate something true and authentic, it probably comes across as an expression of Hae’s deepest inner self. Essentially, the prosecutors leverage cultural assumptions about diaries to make the jury feel connected to Hae and therefore eager to punish her murderer.**

One final detail that really caught my attention: During the trial, it appears that copies of the diary circulated pretty widely as both the prosecution and defense sought to build their cases. But what weirded me out was that Adnan had read it too. It’s not clear when or why or how it came into his possession but … what the hell? I haven’t finished Serial yet and so far I waffle back and forth on the question of Adnan’s innocence or guilt but the idea that Hae’s (possible) murderer was reading her diary … was given access to her diary … that troubles me. She was violated in so many ways — some people think that Serial is violating her again — but the idea of her (possible) murderer reading her silly, messy, charming, personal diary strikes me as yet another violation.

* Of course, then I spend some time googling “diary” and “testimony” and run across stories like this one, in which a woman documents her plan to murder her children and then describes the experience of murdering them. In her diary.

** My discussion of Hae’s diary is from the perspective of a literary critic, but I found a great analysis of the issue by lawyer Collin Miller, from whom I learned that Hae’s diary is considered a form a “hearsay” and, as such, should not have been admissible in the trial. Miller believes that Adnan’s lawyer failed to prevent the diary from being included, which was yet another way in which she failed to build a good defense for her client. Miller also points out that had Adnan kept a diary, it would have been admissible as evidence — either as proof of his motive or as defense against it. It’s an intriguing idea: If Adnan had also kept a diary it could have implicated him — or maybe freed him.