"She Said" - how the NYT Weinstein investigation used named sources, hearsay, and corroboration
How investigative journalism's rules are similar to and differ from the courtroom's
The book “She Said” and the 2022 movie based on the book provide a rare deep dive into the making of an investigative article, specifically, the October 5, 2017 article by New York Times reporters Jodi Kantor and Megan Twohey – “Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades.” There are some useful lessons here not just for those who conduct investigations but for those of us who must evaluate the investigations we read and hear about – basically, everyone in this era of widely disseminated fake news.
1. Importance of named sources
Most of the drama in the movie is whether the reporters can convince people to come forward publicly and put their names behind their stories. This is important because anonymous complaints should not be given much weight.
Anyone can say anything about anyone – if you make an accusation but are unwilling to put your name to it, your allegation cannot be tested or validated, and thus should be discounted significantly. Legally, anonymous complaints are worthless due to the Confrontation Clause and evidentiary rules. Journalists who publish based on anonymous complaints are much more likely to lose defamation cases if they get it wrong.
As stated in the article, the reporters had talked to “dozens” of current and former employees who “said they knew of inappropriate conduct,” but still got only two people to go on the record about situations they themselves had experienced: Ashley Judd and Laura Madden. Without them, the story probably should not have been published.
In fact, this is one area which the movie alters slightly for dramatic purposes – according to the book “She Said,” Laura Madden had agreed to go on the record before the New York Times even approached Weinstein. Ashley Judd’s decision to go on the record was very important, but the article was moving towards publication in any event because of Laura Madden.
2. Hearsay
One big difference between journalism and the law is the treatment of hearsay. Hearsay is a complicated term that can drive law students and lawyers crazy, but basically, the rules of evidence generally require going to the original source of a statement, rather than to someone who heard someone else say something.
While lawyers are generally bound by such evidentiary rules, journalists have more leeway in using hearsay. The original article relied heavily on what people said about what other people had said.
For example, in addition to Ashley Judd’s and Laura Madden’s accounts, the original article described in detail several accounts involving other women who did not cooperate, at least not on the record. Reporters got around the non-disclosure agreements that prevented many women from cooperating with the investigation by citing the friends and colleagues whom the women had confided in, presumably before they signed non-disclosure agreements. This hearsay was important but would not have been admissible in a court against Weinstein, not unless the women came forward themselves first.
3. The O’Connor Memo
In particular, the O’Connor memo highlights the differences between what reporters can say and what lawyers can use in court. As described in the article, the O’Connor memo is a “searing” document “asserting sexual harassment and other misconduct by their boss.” Reporters relied heavily on the memo, citing it in six paragraphs (about 10 percent of the article).
But the memo likely would not have been admissible in a trial.
First, the memo is a mix of things that Lauren O’Connor personally experienced and things that she heard from others. While O’Connor could testify in a court about things that she had personal knowledge of, she generally could not testify in court about things that she had heard someone else report, such as the following allegation in the article’s third paragraph: “a female assistant said Mr. Weinstein badgered her into giving him a massage while he was naked, leaving her ‘crying and very distraught,’ wrote a colleague, Lauren O’Connor.”
Second, the authenticity of the memo is not actually established in the article. Reporters did not explain in the article how they reporters got to see the memo, though the book and movie show that it was given to them by an executive of Weinstein’s company. Before using a document in court, lawyers must prove that the document is authentic, usually by calling someone who can testify that the document is what it purports to be or by showing a chain of custody.
Third, O’Connor herself declined to comment. If she would not go on the record, then her statements would not be usable against Harvey Weinstein in a criminal case because of the Confrontation Clause.
4. Corroboration
Corroboration is an essential part of investigative work, whether you are a lawyer or a journalist. Anyone can say anything about anyone – can you back it up?
This is not shown in the movie, but this is why the original article cites three people who had heard the allegations at the time – Naomi Judd and two colleagues of Laura Madden. The reporters used these people to help corroborate Ashley Judd and Laura Madden through what lawyers would call “prior consistent statements.”
Basically, it is less likely that someone is telling a lie if they have been telling multiple people the same story long before they would have had a reason to lie. This comes up in a telling scene in the movie, in which one of Weinstein’s lawyers dismisses one victim’s account because he says that there were no prior consistent statements. Practically, if something bad happens to you, tell someone immediately. Write up what happened while it’s fresh and email it to yourself or someone else. Do something that will create a record even if no other record exists.
Another way of corroborating accounts is to look at what lawyers call “consciousness of guilt” – conduct that generally someone would do only if one actually did what they’re accused of. Paying multiple women, admitting that “many” – but not “all” – of the accusations are false, stepping down from his company, board actions – such conduct helps corroborate the women who came forward, even if not definitive.
Finally, the multiple accounts, when put together, make each account more likely to be true. The article refers to a “pattern” and a “common narrative” – aggregation is a powerful tool when used right. At the same time, simply claiming that a few incidents make a pattern does not make it so.
5. When is it enough?
One of the big issues in “She Said” is when the reporters will have enough to publish. This idea is similar to criminal cases – prosecutors cannot bring a case until they have “probable cause” that someone committed a crime, and prosecutors cannot convict someone unless they can prove their case “beyond a reasonable doubt.”
Journalists are not bound by the same standards of proof in criminal cases, but there are general rules of journalism that were followed here and that you should look for when reading investigative pieces:
Multiple named sources with personal knowledge of what happened, as well as other named sources who had a basis for knowing relevant information. An article with just one source should be viewed skeptically. The Bible itself says that a single witness should not suffice to establish a charge!
Showing the work. Even when reporters could not get people to go on the record, they clearly talked to a lot of people to inform what they reported. The article refers to “dozens” of interviews, including interviews of “eight women” who described Weinstein engaging in similar conduct. Actual quotes are included and thus show that people actually spoke to the reporters – beware of articles with no quotes.
Opportunity by the other person to give their side. More than 10 percent of the article about Weinstein is comprised of statements by Weinstein or his representatives. The New York Times also published Weinstein’s entire statement online. One-sided accounts that do not give the other side a real opportunity to respond should be viewed skeptically. Whether 48 hours was sufficient can be debated, but it’s a lot better than some journalists who make a quick call moments before publishing and then write that someone “could not be reached for comment.”
I highly recommend the book “She Said” if you’re interested in conducting any kind of investigative work or in better understanding how the news you read is made. Please let me know if you have any questions or topics that you’d like me to discuss in the future. Thanks for reading!
Stephen Lee was a reporter for the Chicago Tribune before becoming a lawyer and a federal prosecutor. He is now a solo practitioner focusing on health care fraud, white-collar criminal defense, and data analytics in litigation.