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Making a Murderer

Confessions and Making a Murderer

Compiled by Victoria Luttman, Shandy Pinkowski, James Alicea, Kendyl Keesey, and Robert Kissel

I. Introduction

Case Background
Making a Murderer is a documentary written and directed by Laura Ricciardi and Moira Demos. The series was filmed over the course of 10 years and followed a man from Manitowoc County named Steven Avery and his trial for the murder of Teresa Halbach. Prior to this trial, Avery had spent 18 years in prison for a crime he did not commit – the sexual assault of and attempted murder of Penny Beerntsen. Avery was exonerated in 2003 but then accused of the murder of Teresa Halbach in 2005—and convicted in 2007.

Brendan’s Confession
One piece of key evidence the State used against Steven Avery was a confession by Brendan Dassey, Steven Avery’s 16-year-old nephew. Making a Murderer showcases 3 main confessions by Brendan: February 26, 2006, March 1, 2006, and May 13, 2006. In his confession, Brendan confessed that he and his uncle, Steven Avery, had murdered Teresa Halbach. In the several confessions played throughout the film Brendan Dassey elaborated in more detail that he and his uncle raped, killed, and dismembered Teresa Halbach:

Dassey: “[Avery] asked me to come in the house cuz he wanted to show me somethin'. And he showed me that she was laying on the bed, her hands were roped up to the bed and that her legs were cuffed. And then he told me to have sex with her and so I did…  [a]nd, when we put her in the fire, and her clothes, we were standing right by the garage, to wait for it to get down.”

To determine the veracity of and limit a suspect’s confession the state of mind of the suspect (including age and mental competency) and the features associated with the interrogation (techniques employed, and presence of an attorney) are important to consider. In the film Brendan’s confession gained critical notoriety on account of these factors.

Issues: The Legal Landscape
The Supreme Court in Miranda v. Arizona recognized confession evidence as one of the most influential types of evidence admissible in court.1 Confessions are the most incriminating, persuasive evidence of guilt that the state can bring against a defendant and results in an irrefutable presumption of guilt.2 One who confesses will be treated more harshly at every stage of the criminal justice process.3 Although conviction is likely where there are confessions, American courts treat confession evidence with some skepticism because historically law enforcement officers have abused their power when interrogating individuals.4

Miranda Rights
Recognizing the abuse of power of officers in inducing confessions, the court developed a remedy whereby officers were required to inform suspects of their right to remain silent and their right to an attorney.5 An individual is entitled to waive their rights but the wavier must be made “voluntarily, knowingly, and intelligently.”6 This same procedure is applied to youths.7

In 1783, the lack of reliability of out-of-court confessions was recognized in the English Court and the first exclusionary rule was made for involuntary confessions:

“A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt …but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape…that no credit ought to be given it; and therefore it should be rejected.”8

There are a number of rationales for excluding involuntary confessions:

  1. Torture: the English Courts labeled torture as their main rationale for excluding involuntary confessions as torture could coerce false confessions. The U.S. Supreme Court also followed suit with this rationale in mind in a number of cases in the 1800s.9
  2. Fifth Amendment: a second rationale for excluding involuntary confessions in the U.S. was the voluntariness doctrine of the Fifth Amendment –no one should have to self-incriminate.10
  3. Fourteenth Amendment: that due process is required when assessing the admissibility of confessions. Even state courts now have to apply this federal due process standard to evaluate the admissibility of confessions. This standard looks at the “totality of the circumstances” 11 in decide whether a confession was made “freely, voluntarily and without compulsion or inducement of any sort”.12 There are two key elements that weigh into this determination: (1) the state of mind of the suspect during interrogation, and (2) the conduct of the interrogators (only in relation to the effects their conduct produces on the state of mind of the particular subject under interrogation).
  4. Deterrence Rationale: when looking at the totality of the circumstances in determining whether a voluntary confession has been made, the court will also consider an individual’s characteristics such as age, intelligence, mental competency, and prior contact with law enforcement.13 For example, in Haley v. Ohio, a 15-year-old African American boy was questioned throughout the night, isolated for 3 days, and denied access to an attorney by detectives.14 The court here held that the confessions were not admissible.15

Totality of the Circumstances in Practice
In practice this test does not have any bright lines for courts to follow and as such gives judges a very flexible discretionary test to apply. This means in reality confessions are only excluded if they are obtained in an extremely shocking way.16 This is troublesome because social science literature suggests that false confessions arising from police interrogations are probably more likely than other pieces of erroneous evidence to lead to a wrongful conviction (scholars have estimated it to be 14-25% of documented cases). Moreover, given the nature of false confessions—they are rarely publicized and difficult to discover—these numbers are probably understated. Furthermore, many studies have indicated a great number of interrogation-induced false confessions especially in youths and those with intellectual disabilities.

For example, one study conducted surveyed 23,000 juveniles (with the average age of 15.5 years) and of those 23,000 14% reported giving a false confession when interrogated by police.17 Another study showed that 12-17 year olds were more likely to confess than young adults (18-26 years).18 When positive and negative reinforcements were used on children, 52% made false admissions of having knowledge of the crime and 30% made false admissions of having witnessed the crime (within 3.5 minutes of questioning). In contrast, the control group made false admissions 36% and 10% of the time respectively.

Vulnerabilities of Brendan’s Confession
As aforementioned, there are a number of reasons that lend to Brendan’s confession being legally problematic. These factors included: (1) the Techniques Employed (the Reid Technique), (2) Brendan’s Age, (3) Brendan’s Mental Competence and (4) his Lack of Attorney During Questioning. It is important to note, however, that Brendan Dassey’s entire confession was not shown in the documentary and thus a more in depth reading of the full transcript is necessary to avoid bias.

II. The Reid Technique

Brendan Dassey Interrogation and the Reid Technique
The interrogation of Brendan Dassey was potentially problematic for several reasons that will be addressed in this paper.  Dassey was a minor, only 16 years old, when he confessed his role in the murder of Teresa Halbach to the Monitowoc County Police Department.  In addition to his young age, Dassey has a history of mental disabilities.  Dassey’s youth and his mental impairments inform the arguably unlikely content of Dassey’s confession and help to explain the impact that the thoughtful and deliberate police interrogation techniques had on him.
This section of the paper focuses on those police interrogation techniques by looking at how police historically and contemporarily elicit confessions from suspects.  This section will discuss how the law has evolved to protect suspects from some of these techniques but not others.  This section will then shift to the actual interrogation techniques that the Monitowoc County Police Department used on Brendan Dassey and the ways in which Dassey, in light of his age and mental faculties, reacted to those techniques.

Police interrogation techniques
i.  Pre-Miranda techniques
Before Miranda v. Arizona in 1966, a confession to police was only inadmissible at trial if the trial court found that the confession was not given voluntarily.  In determining whether a suspect confessed voluntarily, courts asked whether a particular suspect’s will was overborne when he or she confessed.  This was a subjective test that looked at the totality of the circumstances surrounding an individual’s confession.  The police interrogation techniques that frequently gave rise to involuntary confessions before Miranda can kindly be described as brutal and include instances of police officers whipping suspects, holding them in cells for days with no communication, stripping suspects naked in jail cells, having officers pose as doctors, and pretending to arrest a suspect’s spouse, among others.

ii.  Miranda
In Miranda v. Arizona, the court adopted a procedural approach to determining whether a confession would be admissible in court.  Under Miranda, a statement resulting from custodial interrogation, whether exculpatory or inculpatory, may not be admitted against a criminal defendant unless the defendant first received appropriate warnings advising the defendant of his or her Fifth Amendment rights19 and the Defendant knowingly, voluntarily, and intelligently waived those rights.20
In Miranda, the court was aware that the physical coercion discussed in the above section was no longer as prolific as it had once been.21  Specifically, the court addressed police officers’ use of psychological coercion in Miranda.22  The method of psychological coercion that the court was specifically concerned with in Miranda was the Reid technique.23 The psychologically coercive nature of the Reid technique of interrogation was a major influence in the Supreme Court providing for the procedural safeguards of Miranda.

iii.  Focus on the Reid Technique
The Reid technique is a 9-step interrogation process frequently used by police.  The Reid Technique’s nine steps of interrogation are:24

  1. The Positive Confrontation
    During this step, “the investigator should stand directly in front of the suspect and in a confident manner and tone of voice confront the suspect with a statement of guilt. The basic confrontation statement should be brief, exact, and unequivocal.”25
  2. Theme Development
    In this step, the officer should present a theme, or  “some type of moral justification”26 for the suspect's act, to the suspect.
  3. Handling Denials
    Step three concerns the police officer’s reaction to denials and instructs officers to ignore or cut off attempted denials.
  4. Overcoming Objections
    Step four concerns the suspects’ attempts to object.  It instructs “the investigator to not argue with the suspect over the statement, nor should there be any indication of surprise or irritation. The investigator should act as though the statement was expected.  Such a reaction will have a discouraging effect upon the suspect, who will perceive that he made the wrong statement, or at least an ineffective one.”27
  5. Procurement and Retention of Suspect’s Attention
    Step five instructs investigators on how to interact with a suspect who has become withdrawn as a result of the previous steps of the Reid technique.  “It is most important during this phase of the interrogation that the investigator procure the suspect's attention so that he listens to the theme (which reinforces the suspect's justification for his crime) and does not allow the suspect to focus or concentrate his thoughts on punishment (which would only serve to reinforce his resolve to deny the crime).”28
  6. Handling the Suspect’s Passive Mood
    At this point, suspects usually become passive.  The police officers are instructed to stay aggressively on theme.
  7. Presenting an alternative question
    “The alternative question is one in which the investigator presents to the suspect two incriminatory choices concerning some aspect of the crime. The elements of the alternative are developed as logical extensions from the theme. If the theme focused on contrasting impulsive, spur of the moment behavior with planned, premeditated behavior, the actual alternative question may be: ‘Did you plan this thing out or did it just happen on the spur of the moment?’-- either choice is an admission of guilt.”29
  8. Having the suspect orally relate various details of the offense
    Step eight of the Reid technique instructs investigators to “obtain a brief oral review of the basic sequence of events involved in the commission of the crime, while obtaining sufficient detail to corroborate the suspect's guilt.”30
  9. Converting an oral confession to a written confession
    The final step of the Reid technique instructs the investigator to “reduce the oral confession to a written document” “when the investigator is satisfied that he has obtained an accurate verbal account of the crime with sufficient supporting detail.”31

Brendan Dassey and the Reid Technique:  a step-by-step analysis
The police questioned Brendan Dassey about the murder of Teresa Halbach on three documented occasions:  February 27, 2006; March 1, 2006; and May 13, 2006.  On February 27, 2006, Dassey did not disclose any information about Halbach’s murder; he simply stated that he saw Halbach’s body in a bonfire after the assumed murder.  The first time that Dassey confesses to involvement in Halbach’s actual murder is during the March 1, 2006 interview.  The main purpose of the May 13, 2006 interview, which is the footage used in Epsisode 4 of Netflix’s Making a Murderer, “Indefensible,” was to clarify inconsistencies in Dassey’s story.

  1. The Positive Confrontation
    During the March 1and May 13 interviews, the police affirmatively tell Dassey that they know what happened and that they just need Brendan to help them match his story up to the timeline.32  These are well-executed Reid Technique positive confrontations—brief and unequivocal.  The possibility that Dassey may not have been involved in Teresa Halbach’s murder is never acknowledged.
  2. Theme Development
    In an attempt to provide some sort of moral justification for Dassey’s confessed participation in the rape and murder of Teresa Halbach, Officer Wiegert says “[l]et’s be honest here, Brendan.  If you helped [Steven], it’s OK, because he was telling you to do it.  You didn’t do it on your own.”33
    In addition to attempting to make Dassey feel like he is doing the upstanding thing here, the police continually emphasize the importance honesty.  They tell Dassey that if he is honest, they will do their best to stand behind him.34 The police questioned Dassey in terms of this theme throughout the remainder of his questioning.  They returned to the idea that Steven Avery told Dassey to rape and kill Teresa Halbach in order to make Dassey respond more cooperatively.
  3. Handling Denials
    Brendan does not make many spirited denials over the course of the interrogations.  Whenever he does respond negatively to the officers’ questions, the officers quickly get him back on track with the theme and the positive confrontation, making any further denials seem futile.
  4. Overcoming Objections
    At no point do the investigators argue with Dassey about his statements.  When Dassey gives an answer that the investigators are not happy with, they simply return to the theme, emphasizing that Dassey must be honest and that the whole situation is really Stephen’s fault.  
  5. Procurement and Retention of Suspect’s Attention
    Following the objection stage, the suspect often becomes pensive, withdrawn, and quiet.  While Dassey does indeed become withdrawn and quiet, the investigators simply stay on theme and do not mention the potential punishment for the crime that Dassey is admitting to. 
  6. Handling the Suspect’s Passive Mood
    Again, as Dassey is frequently passive throughout the questioning, the officers do continue to relay to him the importance of honesty and the real culpability of Steven, not Dassey.
  7. Presenting an alternative question
    Throughout the questioning, there are many examples of the officers asking Dassey questions that have no positive answer.  These questions force Brendan to assume his own guilt before answering the question.35
  8. Having the suspect orally relate various details of the offense
    Throughout the interrogation, the police officers have Dassey relate many details of the offense.
  9. Converting an oral confession to a written confession
    The police were able, eventually, to get Brendan to make a written confession.

Final Thoughts on the Reid Technique and Brendan Dassey
The first chapter of The Investigator Anthology, a book that describes how to perform the Reid Technique, states the following about the guilt or innocence of the suspect:

“At the outset of the discussion on Step Five, it should be noted that at this stage of the interrogation we are dealing with guilty suspects -- the innocent or truthful suspect will not move past Step Three, denials. He will insist that irrespective of what the investigator has to say, he did not commit the act in question. An innocent suspect will not offer objections as the guilty usually do, but will be adamant in his rejection of any suggestion of guilt.”36

It is here that the Reid Technique itself failed Brendan Dassey.  If an individual does not vehemently and adamantly deny his guilt, the police presume that the suspect is guilty.  As will be discussed later in this article, this conclusion is in conflict not only with the large body of scholarly evidence of the Reid Technique eliciting false confessions, but also with Dassey’s own character.  His age and potential mental disabilities will be discussed in more detail later, but it was worth noting that the police, in following the Reid Technique, deemed Dassey guilty as soon as he did not vehemently deny his own guilt. 

III. Age: Juveniles and False Confessions

Confessions are the most persuasive evidence that can be presented during a criminal trial. Their persuasive value stems from a common sense presumption that human beings will avoid self-incrimination at all costs, and self-incrimination is therefore more likely to be true.

It is impossible for researchers to quantify the true numbers of false confessions provided to police officers or detectives; methods for collecting data would be unreliable. To use post-confession exonerations as a measure would be underinclusive- undoubtedly, many who produce false confessions are never exonerated. Similarly, relying on self-reported data may be overinclusive, as many convicted of crimes maintain their innocence.

Although the exact scope of the problem is unknown, studies conducted on exonerees paint a troubling picture. Juvenile false confessions occur with alarming frequency relative to those provided by adults. One study conducted by Drizin and Leo on 125 known false confessions found an astonishing 40 out of the 125 came from juveniles37. Further, one study conducted of 340 exonerees since 1989 found, while 13% of adults had falsely confessed, 42% of juvenile wrongful convictions involved false confessions. The rate of false confession was even higher in juveniles between the ages of twelve to fifteen- 69% of those children had falsely confessed to homicides and rape they had not committed.38

The disparate rate of false confessions among juveniles is disturbing, and can be explained in part by psychological differences between juveniles and adults. Where adults can distinguish right from wrong, have understanding of permanent consequences, and can generally resist impulses to acquiesce to authority in their own self-interest, the same can not be said of youths. Generally, youths “do not develop mature judgment and adult-like competence until their twenties.39

Generally, when a false confession is given, it it given as the result of a combination of circumstances: unknowing Miranda waiver and coercive interrogation. Brendan Dassey’s confession in Making a Murderer is a manifestation of all the risks undertaken when questioning juvenile suspects. The remainder of this page will discuss these risks and how Brendan Dassey unknowingly waived his rights and was subjected to age-inappropriate interrogation.

Juveniles and Miranda Waivers
Although a waiver of Miranda rights is not sufficient to bring about a false confession, false confessions typically occur after juveniles waive these rights.  Although Miranda warnings were created to ensure suspects understand the crucial rights afforded to them- the rights to court appointed counsel and against self-incrimination- juveniles frequently waive these rights without understanding them.
In determining whether a suspect has waived his or her Miranda rights knowingly, courts apply a “totality-of-the-circumstances” test. Courts will consider all of the circumstances surrounding the waiver, including mental capacity and age. However, “judges apply the totality of the circumstances test, and ‘exclude only the most egregiously obtained confessions and then only on a haphazard basis.’”40 For this reason, most confessions are deemed admissible as evidence against both juveniles and adults.
However, to assert juveniles knowingly waive their rights an overwhelming majority of the time is contrary to the available evidence; social scientists paint a different picture of juvenile Miranda waivers. Where most adults have the requisite knowledge and maturity to understand the language and content of Miranda warnings, the same can not be said of juveniles.  “In some jurisdictions, as many as 80 to 90 percent of youth waive their right to an attorney because they do not know the meaning of the word “waive” or understand its consequences.”41 In fact, one study on juvenile detainees discovered youths struggled with many of the words contained in a standard Miranda warning. In this study of “431 juvenile detainees, two words were commonly failed: interrogation (59.9%) and consult (28.1%).” 42“None of the juveniles understood a Miranda warning as meaning they could end police questioning.” 43Because Juveniles who find themselves within the judicial system frequently read below their grade level, they fail to understand these essential warnings and may waive them without understanding the rights they have sacrificed.
In addition to this common failure to understand the content of Miranda warnings, the manner in which these warnings are delivered often influences juveniles’ decisions to waive their rights. “Legal analysts and criminologists concur that after police isolate a suspect in a police-dominated environment, a warning cannot adequately empower them to invoke their rights.”44 Police regularly deliver these critical warnings in a context that would fail to alert a minor to their significance; they are delivered in the middle of routine paperwork in a monotone voice, are delivered quickly and framed as a formality, or they are recited quickly and without emphasis on their importance.45 Police will often emphasize to juveniles they will have no additional opportunities to tell their stories, which encourages them to waive their rights.  Juveniles frequently fall victim to these insufficient warnings. However, there is evidence to suggest that with increasing involvement comes increasing reluctance to waive Miranda rights; in one study, “juveniles with one or more prior felony arrests waived their rights at significantly lower rates (86.9 percent) than did those with fewer or less serious police contacts (94.9 percent).” 46This suggests that juveniles are not waiving their rights knowingly, but are waiving as the result of immaturity and inexperience.

Juveniles and Interrogation Practices
Adults and youths alike have the impulse to comply with authority- one need not look further than the MIlgram experiments to understand the problematic implications of this impulse. With regards to interrogation of juveniles, the impulse to comply with authority can lead to false confessions where coercive tactics and suggestibility intersect.

As discussed elsewhere on this page, the Reid technique is most typically used during interrogations by police. The Reid technique teaches detectives to look for telltale signs of dishonesty- many of which are physical, such as fidgeting, etc. “However, social scientific studies have repeatedly demonstrated across a variety of contexts that people are poor human lie detectors and thus are highly prone to error in their judgment about whether an individual is lying or telling the truth.”47 Juveniles in high-pressure situations may display many of these uncomfortable behaviors although they are being honest with detectives. Juveniles are regularly placed in uncomfortable situations during interrogations; in one study, “police questioned more than three-quarters (78.8 percent) of youths in interrogation rooms.” 48This high-pressure environment may induce many youths to behave in ways typically associated with guilt or dishonesty, and can therefore escalate the interrogation process until the youth feels the need to comply with officer suggestion.
Additionally, “many juveniles too are highly compliant. They tend to be immature, naively trusting of authority, acquiescent, and eager to please adult figures.”49 Police “combine implicit promises of leniency with threats of harsher punishment to encourage the juvenile's confession.” 50Juveniles’ eagerness to comply, coupled with the implication that compliance will lead to speedy release and leniency, leads many youths to yield to police suggestion in the interrogation room despite their innocence. They do so in the hopes they will be freed with minimal consequence. Further, “juveniles too are less capable of withstanding interpersonal stress and thus are more likely to perceive aversive interrogation as intolerable.” For these reasons, they may acquiesce to demands for “honesty” and produce false confessions. 

Miranda Waiver and Interrogation in Making a Murderer
In Making a Murderer, Brendan Dassey falls victim to many of the risks posed by questioning juveniles to elicit confessions. Brendan Dassey’s age, coupled with his poor vocabulary, led to waiver of Miranda rights. Additionally, Dassey confessed during police interrogation due to his youthful desire to please authority and his mistaken belief that telling officers what they wanted to hear would lead to his freedom.

Brendan Dassey, a young man whose IQ places him in a category approaching disability, was read his Miranda rights. However, many youths do not comprehend the language of Miranda, and Brendan was no different. At various times during the documentary, Brendan demonstrates his lack of vocabulary. For example, in a phone call with his mother, Brendan asks her what the word “inconsistency” means. This troubling exchange provides some insight as to whether it was possible for Brendan to knowingly waive his rights and speak with the police. Like many juveniles, Brendan likely lacked the vocabulary to understand his rights in order to waive them. Further, his frequent questions regarding whether he would return to school in time for his class in the afternoon indicates he was not aware of the seriousness of the discussion with the police.

Police interrogation tactics likely impacted Brendan’s confession as well. Like most youths, Brendan was interrogated in a police station interrogation room. He likely did not understand he was allowed to stop police questioning once it had begun. Additionally, Brendan displays a typical juvenile desire to please authority. As Brendan explained to his mother, “...they said that they knew already what happened. That they wanted me to... They just wanted it coming out of my mouth.” Because the officers wanted him to tell a story, he admits he “guessed” until he said what they wanted. When his mother asked why he guessed, Brendan explained, “that’s what I do with my homework.”  Brendan’s desire to comply with the authority figures led him to guess what had happened the night of the murder, and these guesses ultimately formed the confession that led to his conviction.

Finally, Brendan likely confessed in part because he expected leniency. Brendan repeatedly asked when he would be permitted to leave, and was asked questions by officers very similar to the following:

Officer: If you wanna help yourself, you have that opportunity right now to do that. Is that what you wanna do? Do you wanna help yourself? Then why are you lying? Look at me Brendan.

Brendan was repeatedly told his testimony would “help” him and the officers would help him if he was “honest.” Officers told Brendan that they were “on his side.” Because they provided implied promises of leniency, Brendan likely felt as though he should tell the officers what they wanted to hear.

In conclusion, Brendan Dassey’s confession was in part the unfortunate result of his age and inexperience. Brendan waived his Miranda rights despite lacking basic literacy and vocabulary skills and did not demonstrate understanding that he was free to leave. He complied with authority figures as the result of his youthful desire to please authority and inability to withstand the pressure of interrogation. Brendan Dassey’s confession was admitted under the “totality of the circumstances” approach to admissibility, and ultimately led to his conviction.

IV. Mental Competency

Introducing the Law on Mental Competence
As mentioned earlier, courts will look to the totality of the circumstances to make a determination regarding the validity of a confession. A confession obtained in an interrogation setting is only valid if it was constitutionally obtained, that is, by waiving Miranda. The test, again, for valid waiver is (1) voluntarily waived and (2) knowing and intelligent. Of course, mentally challenged suspects may lack the cognitive tools necessary to satisfy either of these prongs. Without more, Miranda warnings would not serve their instrumental function, namely, ensuring that “confessions are the product of knowing, intelligent, and voluntary waivers of the right to remain silent, and not the result of the pressures inherent in custodial interrogation.” In theory, the application of IQ as a factor in the totality of the circumstances assessment addresses the issue of mental competency in voluntariness of waiver. Additionally, waiving Miranda leaves mentally challenged suspects vulnerable to other risks. The Supreme Court in Atkins v. Virginia, highlighted that the mentally disabled are at risk to “unwittingly confess[ing] to crimes they did not commit.” While the legal landscape has seemingly accommodated the special circumstances of mentally challenged suspects, the courts have failed to meaningfully implement an effective strategy. In practice, trial courts rarely exclude confessions obtained after a mentally disabled person waives Miranda. (See W.M. V. State, where the court admitted the confession of a 10 year old boy with an IQ of 70 and In Re W.C. where the court upheld Miranda waiver of an illiterate thirteen year old boy with an IQ of 48 and the developmental intelligence of a 6-8 year old). The result: a failure of Miranda to provide proper protection to an entire community of persons.

What the Social Science Says
Social science scholarship has tried to underscore the need for enhanced protections by shedding light on the unique characteristics of mentally challenged persons which makes them especially susceptible to the pressures of police interrogation. First, they are eager please authoritative figures, even if that means making false statements. This may also be driven by a desire to avoid being the target of anger or displeasure or to give an answer the disabled person perceives the authoritative figure to want. Second, a mentally disabled person may be defensive about or unwilling to admit to their condition. They may therefore overrate their intellectual abilities and fail to communicate a lack of understanding. An advocacy group for the intellectually disabled explains that real effect these proclivities have in the context of interrogations. A suspect may claim to understand police instruction (such as Miranda) while having no real comprehension of its meaning, making the suspect more likely to waive Miranda. He or she may be unable to appreciate the seriousness of the interrogation or allegations. More troubling, a mentally challenged suspect may confess falsely out of a desire to please the interrogating officers.

Several important studies have shown the relationship between mental incapacity, Miranda waiver, and false confessions. One study tested mentally disabled subjects’ comprehension of Miranda and interrogations and their rights and ability to invoke them. The subjects in the study varied in mental competence, with 35% displaying mild mental retardation, and 22% fairing slightly higher on the spectrum, with an IQ ranging from 71-88. There were several testing techniques employed. In the first phase, subjects’ understanding of Miranda vocabulary, words like “consult,” “attorney,” “interrogation,” “appoint,” “entitled,” “right,” and “statement.” The interviewer used the world in a non-legal context and asked the subject to explain the word’s meaning. In a second phase, the interviewers tested the subjects’ understanding of Miranda concepts and principles by breaking up the Miranda warning, asking yes/no questions, and comparing the meaning of Miranda to other sentence options. For example, the interviewer would place a card with a sample sentence next to a Miranda sentence and ask whether the meaning was the same/different. In the third phase, interviewers tested whether subjects understood the legal context from which the subjects’ Miranda rights operate. The interviewer questioned whether the subjects understood that the police believed a crime was committed and were searching for information about the crime from the suspect. The subjects’ understanding of an attorney’s role in this context was also tested (i.e. that the attorney was the subjects’ advocate).

The study observed troubling results. First, mentally challenged subjects do not understand Miranda warnings nor their rights under Miranda. Regardless of the level of disability, the Miranda principles were lost on the subjects. The average score of correct answers on the vocabulary test was 20% and 38% on the concepts test. The vocabulary and concepts tests unveiled that the subjects did not understand the words used in the warnings nor the rights they conferred. Second, subjects don’t understand the context or goals of interrogations nor the legal consequences of providing information or confessing.

Other studies have focused on the problem and prevalence of false confessions made by mentally challenged suspects. As mentioned earlier, confessions are incredibly incriminating evidence in criminal trials, the idea being that people who are innocent do not confess. What is more, people who are innocent surely do not have convincing details of the crime. The character profile of developmental disability should be sufficient to show that the former supposition is not always true. A mentally disabled suspect, eager to please the officers and not fully appreciating the legal consequences or seriousness of the situation, may admit to committing a crime that person had zero involvement in. A Drizen and Leo study reviewed 125 cases of proven interrogation-induced false confessions and found that, among the 125 overturned cases, suspects with mental illness were especially vulnerable to the interrogation techniques employed by officers. An 18 year old mentally disabled student with an IQ of 71 was accused of raping and killing a 12 year old girl. Within 48 hours of the crime, Michael Gayles had signed a confession, later signing two other confessions and implicating his mother in covering up the crime. Gayles gave gruesome details of the rape and murder. DNA evidence later exonerated him.

Scholars have found that fact finders struggle to reconcile a confession and detailed account of the crime with innocence when that confession is later rescinded. Brandon Garret, professor at University of Virginia School of Law studied false confessions and found that detailed confessions can be contaminated by information (1) provided during the interrogation and (2) learned by the suspect outside of the interrogation. A suspect’s detailed answers may be a reflection of what he has gleaned from the news or an interrogator’s leading questions and not a reflection of his first-hand knowledge.

Law & Social Science Applied: Making a Murderer
The social science supports lending a critical eye toward Brendan Dassey’s rape and murder trial. Dassey is consistently referred to as “learning disabled,” and “not very smart.” The court determines Dassey’s IQ to be between 69 and 73 which borders on mental retardation. Precedent lends itself to this determination. The social science, however, strongly suggests that admitting Brendan’s confession was an error.  Brendan’s IQ prevents him from voluntarily, knowingly and intelligently waiving his Miranda rights. Consistent with the Miranda study, Brendan failed to manifest a clear understanding of the nature and seriousness of the interrogation, let alone his rights under Miranda. During the initial interrogation and after the confession, Brendan asks when he can go home because he had a school project to work on. He simply does not realize the police cannot release him from their custody after his confession. In fact, when the police tell him they have to arrest him, Brendan asks whether the arrest will last only a day. It is difficult to imagine that Brendan, who doesn’t realize that confessing to murder would land him in jail for longer than one day, has the ability to knowingly and intelligently waive Miranda. The studies above support finding that someone of Brendan’s mental capacity (and even those with great cognitive ability) would struggle to comprehend Miranda rights and thus intelligently waive those rights.

Brendan’s behavior during the interrogation is also consistent with the physical profile of a cognitively impaired suspect, highlighting the vulnerabilities of someone with Brendan’s IQ. As the police are probing him about the rape and murder, Brendan shows confusion but wants to cooperate with the police. Leading questions allow Brendan to inch toward the answers the investigators feed him. When asked what he and Steven Avery did to Teresa, Brendan supplies erroneous details. For example, when asked, specifically, what he and Steven did to Teresa’s head, Brendan says they cut her hair. When the investigators’ responded disapprovingly, Brendan, again, tried to satisfy them by guessing the answer to their question. Once more, he was wrong. With the investigators’ help, Brendan was able to give them the answer they were looking for, that is, that Brendan and Steve shot Teresa in the head. When Brendan’s mother later asked him how he was privy to such alarming detail, Brendan answers that he “guessed,” like he does with his homework. This urge to guess – to satisfy the officers – is supported by the profile described above. Brendan was eager to please the authoritative figures, to avoid frustrating them, and to earn their approval. He fictitiously contrived a story without appreciating the consequences of doing so. What is more, Brendan was unable to ascertain what the officers could realistically do for him from when they encouraged him to tell the “truth,” while promising to protect him.

Brendan’s behavior is, unsurprisingly, convincing to the jury that found him guilty. The protections that are meant to insulate people like Brendan from false confessions are ineffective given the special vulnerabilities those with intellectual impairments face. Critics are correct to cringe at the outcome of Brendan’s trial and the procedural logistics which permitted his fate. The studies cited suggest that greater safeguards are needed when Miranda is waived and those with mental impairments are interrogated. Without sufficient understanding of the interrogation and accompanying risks, the interrogation techniques employed lead to miscarriages of justice for many people, like Brendan, who are unable understand and exercise their rights.

V. The Role of the Lawyer: An Analysis of The Attorney-Client Relationship in Cases Involving Confessions and Guilty Pleas

Background: The Scope of the Attorney-Client Relationship

The scope of the attorney-client relationship is defined by Rule 1.2(a) of the American Bar Association Model Rules of Professional Conduct. Rule 1.2(a) states:

“A lawyer shall abide by a client's decisions concerning the objectives of representation and . . .  shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.”51

The language of the rule implies that the ideal attorney-client relationship should rest upon a natural give-and-take.52 An attorney should recognize the importance of the client's interests, as well as respect the client’s right to make certain choices for himself.53 In return, the client should trust his attorney, his knowledge, and his judgment to make choices that are in the client’s best interest.54 Thus, for the majority of interactions between lawyer and client, there is little need for a “blueprint” to allocate responsibility for the decisions that both parties are required to make.55

While the language of the rule is unequivocal in stating that it is the client’s choice to enter a plea, that line can begin to blur when the defendant lacks the knowledge of the consequences of accepting a plea and begins to rely almost exclusively on the judgment of his or her lawyer.  The decision of whether to plead guilty was a major issue in Brendan Dassey’s case, and the creators of the documentary cast significant doubt as to whether Brendan truly understood the consequences of pleading guilty to a crime he continued to insist he did not commit. The reality of Brendan Dassey’s case thus begs the question-- how far can the competent lawyer go in assisting his client to decide to confess or accept a plea bargain?

The Attorney-Client Relationship in Practice: Who Really Makes the Decisions?

Legal scholars often synthesize Rule 1.2(a)’s demarcation of the boundaries of the attorney-client relationship as follows: strategy versus rights--attorneys make strategic decisions with regard to how to try a case, while clients make decisions regarding constitutional rights implicated in that case.  As one legal scholar states, “The basic function of the defense attorney should be to serve his client in exercising his legal rights as he chooses.”56 

In the context of criminal cases, the choice to plead guilty “is not a mere question of tactics; it involves the most basic of the defendant's rights.”57 For this reason, courts require that a guilty plea must be entered by a defendant personally, but only after the defendant’s lawyer has discussed the implications of the plea.58

Most defense attorneys agree that it is in fact the client who ultimately decides whether to enter a plea of guilty.59 However, in his article “The Defense Attorney 's Role in Plea Bargaining,” Albert Alschuler observes that defendants “often adhere to [the] proposition [that it is their choice to plead guilty] in only a narrow and technical sense,” and that the notion of defendant as gatekeeper of his right to plea is “often forgotten in the place where it counts--the defense attorney's office.”60 According to Alschuler, defense attorneys surveyed revealed that in practice, that the client’s decision to plead guilty essentially means that the client is free to seek a new lawyer when he is dissatisfied with the choice of plea that his attorney has advised.61

Alschuler provides the following statements taken from defense attorneys surveyed throughout the United States via telephone interview which reveal the disparity with how attorneys define the attorney-client relationship:

“An attorney should not take a case unless he can be master of the ship. A client cannot insist on anything.”

“It does not lie in a defendant's mouth to say that he is innocent. The defense attorney must make that decision because it is his reputation that goes on the line.”
“A client hires his lawyer's judgment, and the lawyer should leave the case when a client refuses to accept that judgment.”

“I tell my clients right at the beginning that I am the boss in the attorney-client relationship.”

“If a defendant has paid me a fee adequate to indulge his whims, he can go to trial. Otherwise he had better respect my opinion.”

“A client comes to me to take my advice, and I cannot permit him to commit suicide.”62

While Alschuler does not dispute that defendants have far more at stake than their attorneys in the all-or-nothing decision that the guilty-plea system demands, he reasons that some of the harsher quotes, which reflect an attorney dominance in the attorney-client relationship, may have been motivated by external factors that impact the security of the lawyer’s career.  An attorney may reasonably fear that an unsuccessful trial will harm his reputation and waste his time, talent, and energy.63

Apart from the disparity in how lawyers define the attorney-client relationship from the outset, issues can also arise as to how attorneys can advise a client to plead guilty without crossing the line to coercion.  Alschuler states that it may often be a lawyer's duty to emphasize in harsh terms the force of the prosecution's evidence: “What about this fact? Is it going to go away? How the hell would you vote if you were a juror in your case?”64 Alschuler further suggests that it may sometimes be a lawyer's duty to say bluntly, “I cannot possibly beat this case. You are going to spend a long time in jail, and the only question is how long.” Alschuler provides an extreme scenario that a lawyer used in the Massachusetts case Huot v. Commonwealth: “The jury will fry your ass…You're going to die if you take the stand…You will burn if you do not change your plea…The jury wants your blood.”65 Alschuler concludes by stating, “Because the line between advice and coercion seems virtually nonexistent in the guilty-plea system (a system in which accurate advice is almost always coercive), the principle that a defendant should be allowed to choose his own plea does not indicate to a defense attorney how forceful he may properly be in urging a particular plea upon his client.”66

In “Making a Murder,” it is evident that Len has seized complete control of the attorney-client relationship, and has even gone as far as to thrust a plea agreement onto his client, who does not understand the plea’s implications. Brendan’s total lack of understanding becomes evident in his discussion with his mother about the plea deal:

Brendan: Did you call my attorney this morning?
Barb: I tried to get a hold of him. But he won’t return my phone calls.
Brendan: He gave me this piece of paper about me pleading or something.

Barb: For you to plead guilty?

Brendan: He said that if I choose the plea thing, that’s what I—
Barb: You can’t. If you take that plea bargain Brendan, you’re saying you’re guilty.
Brendan: But if I go to trial and that, he said it’s gonna be hard for the jury, you know, to believe me if I tell the real, true story.
Barb: You’re attorney believes you did it…he wants to put you away Brendan…If you didn’t do it, you need to take it to court. 
Even Steven’s father, Allan Avery, is outraged by Len’s gross neglect of Brendan:

Allan Avery: “Why would his lawyer tell him he’s guilty and take a plea bargain? Now that ain’t no lawyer, as far as I’m concerned. A lawyer’s supposed to work for you.”

In his article, “Public Defenders as Their Clients See Them,” Glen M. Wilkerson interviewed 40 clients of public defenders in Denver and reported that their most common grievance was that the defenders did not visit or contact them often enough.67 Some clients also stressed the fact that the roles of the attorney and the client are more clearly defined when the client hires a private attorney. One defendant in Wilkerson’s study explained, “With a private attorney, you talk over strategy. With a public defender the client has nothing to say.”68

In his book, American Criminal Justice: The Defendant’s Perspective, Jonathan D. Casper noted the same phenomenon of public defenders seizing complete control of the attorney-client relationship in Connecticut.  In Casper’s study, most clients assigned a public defender asserted that the public defender “did not offer advice, provide information, or make suggestions, but instead simply told them what to do.”69 In contrast, the clients Casper interviewed who had retained private attorneys made statements like these:

“He made it a point always to see me either before or after court and explain . . . Well, did you understand this, did you understand that; and if I said no, he'd explain it to me, you know, what went on.”

“He laid things on the line. He told me this can happen, and this can happen; so what we got to do is make up our minds . . . . He explained to me how the [law works].”

When Wilkerson released the results of his study, including client criticisms, to Denver public defenders, a typical response was, “We get them good deals, probably as good as anyone could get them.” 70 The defenders regarded jail visits as "usually unimportant," and they added that clients often call upon their public defenders simply as someone to talk to, "someone to hold [their] hand.”71 Wilkerson summarized the public defenders he met with as “lawyers, not salesmen or hand-holders,” who viewed the development of a "bedside manner" as the concern of another profession.72

How Should a Lawyer Respond When He Reasonably Believes that His Client is Mentally Impaired?

Model Rule 1.14(a) of the American Bar Association Model Rules of Professional Conduct states:

“When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”73

Rule 1.14(a) makes the traditional obligations and ethical responsibilities of an attorney applicable to the client with a disability, but also speaks to what a lawyer should do when he believes that his client is severely impaired and cannot act in his own best interest.74  Generally, when representing a disabled client, a lawyer must abide by the client's decisions and should not be influenced by the advice of another person.75

The attorney may not unilaterally waive substantive rights without the client's informed consent.76 In extreme cases, a lawyer may appoint a guardian on behalf of the client to make legal decisions on behalf of the impaired. However, even where the appointment of a guardian is permissive instead of mandatory, courts will almost always require a revelation that the client is so impaired that he or she could not effectively act in their own interest.   If litigation is pending, the procedure for a lawyer seeking to appoint a guardian is to request that the court determine the mental status of the client via a mental examination.77 Examination is allowed only "upon good cause;" therefore,  the lawyer must advise the court of the underlying factual basis for suspecting that the client is unfit to make decisions in his or her best interest.78 

It is important to note that “bad” client decisions do not equate with incompetence, as clients are entitled to make bad decisions. A lawyer is not to seek a guardian for a client because the client “displays bad judgment, makes imprudent choices, or disagrees with the attorney’s assessment of his or her best interest.”79 Moreover, the lawyer has a duty to advocate for client’s desires even if the lawyer believes those desires are against the best interests of the client.”80 

Whether Brendan Dassey was mentally impaired under the language of Rule 1.14 is difficult to gauge. There is no question that Brendan was mentally disabled, given his borderline IQ and his inability to understand such terms as “inconsistent” and what a plea deal is. However, he was able to answer the questions of Weigert and Fassbender on his own, and create a narrative based on events he perceived to have happened. Even if these facts were false, and heavily influenced by the interrogators’ leading questions, Brendan was still able to formulate the decision to confess and respond to all of the investigator’s questions. As Judge Fox reasons:

Judge’s Ruling on Len’s Motion to Suppress Confession Statements as Evidence:

“The defendant Brendan Dassey was, at the time of the police interviews, a student…[in] high school enrolled in mostly regular classes but also in some special education classes. Testing had disclosed an IQ level in the low average to borderline range. There is no evidence that he suffered from any emotional disorder with made him unusually susceptible or vulnerable to police pressures. Nothing on the video tape visually depicts Brendan Dassey as being frightened or intimidated by the questions of either investigator. On occasion, the interviewers purported to know details which in fact were not true. The court finds that this tactic of misleading Brendan Dassey was neither improper nor coercive because it did not interfere with Brendan Dassey’s power to make rational choices. In short, the statements made by Brendan Dassey to investigators…were voluntary statements. The defendant’s motion to suppress these statements is denied.”

Based on Judge Fox’s reasoning, it is unlikely that Len would have been able to appoint a guardian for Brendan Dassey. Fox’s statement that “There is no evidence that he suffered from any emotional disorder with made him unusually susceptible or vulnerable to police pressures” shows that the court believed Brendan was competent enough to act in his own best interest, despite his mental impairment.  However, it is clear from Brendan’s conversations with his mother the Brendan’s understanding of the implications of confessing are highly distorted.  In order to make this determination, the court would likely have had to perform a more in depth analysis of Brendan’s mental competency, rather than simply looking at his IQ and how he acted during the interrogation. 

The Role of the Public Defender: Professional and Ethical Issues of Communication and Competency

In “Making a Murder”, Brendan Dassey’s second lawyer, Len Kachinsky is depicted as an incompetent, oblivious public defender. There are only two scenes in which Brendan mentions he has met with Len outside of court. One of these instances is when they meet, and Brendan is barely able to understand what the implications of his confession are. The following text is the phone call between Brendan and his mother Barb after Brendan meets with Len:

Barb: You watch the news?
Brendan: About what?
Barb: About you. It says, “Teen’s attorney seeks to throw out confession.”
Brendan: What’s that mean?
Barb: He wants to throw out the statement that they made you say, or whatever.
Brendan: Yeah. They said that my statements were inconsistent. What does “inconsistent” mean?
Barb: *Long sigh* I don’t know exactly.
Brendan: Maybe they’re false or something?
Barb: I don’t know.
Brendan: Well that’s what I’m thinking.
Barb: So do you like this attorney?
Brendan: I don’t know. I don’t know him much.
Barb: Yeah, I know.

The statements are shocking to the viewer. Not only does Brendan question whether it means for his own statements to be false, he also struggles to understand what the term inconsistent means. He also says that he doesn’t know his attorney “much,” yet the attorney has already filed a motion to suppress the confession.

The disparity between Brendan’s account of his meeting with Len and Len’s motion show that Len has failed in his most basic duty to his client: the duty of communication, outlined in ABA Model Rule 1.4. Rule 1.4 states:

“(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”81

Even at this early stage of the attorney-client relationship, Len fails 1.4 (a)(2), (a)(3), (a)(4), and (b).  Len left his meeting with Brendan without Brendan even understanding what inconsistent meant, and without Brendan understanding what a motion to suppress a confession meant. Moreover, Barb insists several times in Episode three that Len never returns her phone calls. Len does not provide any information to Barb, and fails to inform Brendan or Barb of any information either of them reasonably need to make decisions as to how to approach the issue of Brendan’s self-incriminating statements. At the very least, Len had a fiduciary duty to his client to explain what the motion to suppress was being filed for, and to interview Brendan in an attempt to understand why he would have confessed to killing Teresa Halbach if he continues to claim that he is innocent, even after confessing to the murder.

Len’s greatest failing for Brendan Dassey is his failure to accompany Brendan to a three and a half hour interrogation by Officers Weigert and Fassbender where the officers extract a confession out of Brendan. Len’ failure to be present at his client’s interrogation is an ethical violation of Model Rule 1.1: Competence.  Rule 1.1 states:

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
The most troubling aspect of Len’s incompetence as a lawyer is that Brendan is unable to communicate it to the judge. Brendan’s mother Barb realizes that Len is not helping her son, but this breakdown of the attorney-client relationship does not come across when it matters most: during Brendan’s motion to substitute counsel. The exchange between Len, Brendan, and Judge Fox was as follows:

Motion to substitute council:

Judge Fox: Are you requesting that your current lawyer be replaced by someone else?
Brendan: Yeah.
Judge: Mr. Kachinski, do you believe that this request is a free and unfetter choice?
Len: I’m not sure about that your honor, I have received information that there has been an ongoing campaign by Mr. Dassey’s co-defendant to encourage him to obtain new counsel that might be more to his co-defendant’s liking.
Judge: Mr. Dassey, how do you get along with Mr. Kachinsky?
Brendan: Not bad.
Judge: Does not bad mean good, or what?
Brendan: Yeah.
Judge: Do you guys fight when you’re together?
Brendan: No.
Judge: Can you talk with him?
Brendan: Yeah.
Judge: Do you think he’s doing what he believes to be in your best interest?
Brendan: Sort of.
Judge: *Long sigh* Tell me why you want to change lawyers at this point.
Brendan: *After stuttering repeatedly* I think he thinks I’m guilty.
Judge: And that’s the reason you want to get a different lawyer?
Brendan: Yeah.
Judge: I don’t see or hear anything that tells me that there is an irreconcilable conflict or difference. There certainly isn’t, I don’t believe, any breakdown-complete or otherwise-in communication. Accordingly, I am going to deny Mr. Dassey’s motion to substitute some for Mr. Kachinsky as his council.

Had Brendan told Judge Fox that Len failed to defend him at a 3.5 hour long interrogation on May 13, 2006, as Judge Fox finds out in late summer, it is virtually certain that Brendan’s motion for a new attorney would have been granted.
It’s clear that Len also failed to see to professional and ethical violations of his choice not to be present when Brendan was interrogated, which he reveals in his interview with the media:

Reporter: Do you feel he has had adequate representation up to this point?
Len: I think he has, yes. I think the steps we took were reasonable, I respectfully disagree with the judge.
Reporter: You’re still saying that it wasn’t a mistake to let him be interviewed with just your investigator, would you do that over again?
Len: Well I wouldn’t do it over again because of all this *laughs.* But I think in the final analysis, the issue of the May 13th statement probably will never come up in Brendan’s case again, the state most likely is not going to use it.

It may be surprising to know that the few studies that have been conducted on the public defender attorney-client relationship show that situations like Brendan’s are not all that uncommon. As one legal scholar states, “Public defenders are not often heroes to their clients.”82 In 1973, Professor Jonathan D. Casper surveyed a group of convicted defendants in Connecticut and asked, “Do you think your lawyer was on your side?”83 Although the sample was small, and although the judicially controlled defender system may have been unusually unpopular, the results were unambiguous: All of the 12 defendants who had been represented by private attorneys answered yes, their attorneys had been “on their side.”84 Thirty-nine of the 49 defendants who had been represented by public defenders answered no.85

Psychological studies show the harms that occur when clients do not trust their attorneys.  A defendant who lacks confidence in his attorney is likely to resist the attorney's advice.86 This resistance is most likely to take the form of insistence upon a trial despite the attorney's recommendation of a guilty plea.87 However, some of the disadvantages of having a public defender go beyond the general competency of the lawyer. Because indigent defendants do not choose their representation, these defendants are not afforded an opportunity to shop the market and find an attorney that caters to their needs or insecurities.88 As a result, the confidence that arises when a defendant selects his own lawyer is slower to develop, if it develops at all, when an unknown advocate is assigned to them.89

Some of the lack of faith in public defenders is also economic in nature. Some defendants subscribe to the belief that "one gets what one pays for," and are thus suspicious of the fact that no matter whether the public defender wins or loses his or her case, the state will still pay them.90
Time spent with public defenders is also a factor. On average, a defendant is likely to spend no more than a half hour conferring with any one of his representatives, possibly less.91 As one legal scholar states, “The defendant may therefore conclude that his relationship with the defender office resembles the atmosphere of an automatic car wash more than that of a traditional attorney-client relationship.”92 For example, in United States ex rel. Thomas v. Zelker,93 a defendant was represented by at least five public defenders during the course of his pretrial confinement.94 None of the lawyers told the defendant who to contact to discuss developments in his case, and although the defendant supplied two public defenders with a list of witnesses who could testify on his behalf, most of these witnesses were never contacted.95 The presiding judge, Judge Frankel, wrote:

[F]or whatever reasons of calendar pressure and understaffing, Legal Aid counsel left petitioner to the most brutal and horrifying kind of isolation, effectively walled off for months from any genuine assistance by a facade of "representation." Those supposedly aiding him failed even to see him. He did not know who his lawyer, as a live human being, was supposed to be . . . .Twice, he supplied lists of witnesses. He was never told what,if anything, was being done about them. To put the matter moreprecisely, he never told that nothing was being done to pursue the elementary and obvious things required for even a rudimentary defense.96

In this case, Judge Frankel ruled that the defendant was denied the effective assistance of counsel under the Sixth Amendment of the United States Constitution; however, at least one other court has ruled that the "zone defense" is not inherently inadequate to supply effective representation under the Sixth Amendment.97

A final reason for the lack of rapport between public defenders and their clients may go to the substance of the defenders' performance. Alschuler points out that many of the grievances voiced by the defenders' clients mirror the problems, dangers and disadvantages associated with the danger of excessive cooperation with the prosecution. The following are statements taken from clients of public defenders expressing concerns about the integrity of the public defender system:

“The first thing that comes to the public defender's mind is to cop out.”

 “I think that everything I tell the public defender goes straight to the district attorney.”

“Judges have no regard for the public defender.”

“The public defender is not supposed to beat cases, but just go through the motions.”

“The public defender is a bad thing. They are afraid of the judge.”

“A public defender is just like the prosecutor's assistant. Anything you tell this man, he's not gonna do anything but relay it back to the [the prosecutor.] He just playing a middle game.”98

The quotes in Alschuler’s study reveal the mistrust clients have, and this mistrust is further perpetuated by Len’s decision in “Making a Murder” to hire a private investigator to extract a favorable confession out of Brendan to get a better plea deal. The quotes of the private investigator, Michael O’ Leary, are equally as shocking.

[Brendan writes that he did not meet with Steven to kill Teresa]

Michael: “Is anything missing from that statement here?
Brendan: [Shakes head in the negative]
Michael: Is Teresa in that statement?
Brendan: No.
Michael: Well, then it’s missing. Then it’s not a truthful statement.
Brendan: ‘Cause I didn’t do nothing.
Michael: Well, that’s not true.
Brendan: I was only there for the fire.
Michael: I wish that was true.
Brendan: It is.
Michael: You were also in the mobile home.
Brendan: Not that day though.
Michael: Just so you are perfectly clear, I want you to testify against Steven Avery and tell the truth…I can’t help you with those words that you wrote down. Those words—I can’t help you at all.

Only then does Brendan write in Teresa and with Michael’s leading, draw pictures of the alleged murder and rape. It is highly likely that Len’s sole purpose in extracting the confession was to go back to the prosecutor, make a deal, and move on to the next case.

VI. Conclusion

Social science studies have shown us that false confessions are significantly more likely to occur in youths and the mentally disabled. Further, when interrogators use positive and negative reinforcements, juveniles are even more susceptible to falsely confessing that they either had knowledge or witnessed a crime. In Brendan’s case, not only was he a youth, but he was also mentally disabled. On top of that interrogators lead Brendan towards answers with positive and negative reinforcements as well as continually suggesting that they knew he was lying to them. Brendan, wanting to leave after hours being interrogated, could have simply told the officers what he thought they wanted to hear just so he could leave.

Making a Murderer sheds light on many issues involving out-of-court confessions.  Brendan Dassey is a naïve youth who is intellectually disabled and yet was subjected to intense interrogation techniques. Indeed, it seems as if the police investigators lead Brendan towards certain details in his confession by suggesting certain facts and stating that they knew Brendan was lying.

Here the Reid Technique failed Brendan and the police presumed guilt simply because Brendan did not vigorously deny his guilt and instead waivered in his responses.  But as discussed, this conclusion is troublesome because of the large body of scholarly evidence of the Reid Technique eliciting false confessions. Further, there were other factors attributed to Brendan’s character itself, such as his age and potential mental disabilities that made him more susceptible to falsely confessing. Brendan Dassey’s confession could easily be an unfortunate result of his age and inexperience as well as his learning disability.

Throughout all this, the court still deemed Brendan to have waived his Miranda rights despite lacking basic literacy skills. It seems surprising that Brendan, as a juvenile could waive his Miranda rights “voluntarily, knowingly, and intelligently” when he could not even demonstrate an understanding that he had the right to leave, remain silent, or have an attorney present. This is especially problematic when coupled with his youth and the fact that his IQ borders on mental retardation. Brendan complied with authority figures simply because he was a young and thought he had to answer the authorities in the way they wanted. He failed to comprehend the risks associated with what he was saying and instead asked the authorities if he could go back to school, illustrating a lack of understanding. Of course, the problem is further exacerbated because an attorney did not accompany Brendan during any of these police investigations (despite Brendan’s youth and intellectual disability). Thus, the safeguards that courts attempted to implement by creating Miranda rights seems to have a limited impact on the admissibility of confessions in courts.

1. Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations (July 15, 2009). Law and Human Behavior, 2009; Univ. of San Francisco Law Research Paper No. 2010-13.

2. Kassin, supra note, 1 at 9.

3. Richard A. Leo, Inside the Interrogation Room, 87 Journal of Criminal Law and Criminology 266, 298–303 (1996).

4. Kassin, supra note, 1 at 9.

5. Miranda v. Ariz., 384 U.S. 436 (1966).

6. Id.

7. In re Gault, 387 US 1 (1967).

8. King v. Warickshall168 Eng. Rep. 234, 235.

9. Hopt v. Utah, 110 U.S. 574 (1884); Pierce v. United States, 252 U.S. 239 (1896);

10. Kassin, supra note, 1 at 11.

11. Brown v. Mississippi, 297 U.S. 278 (1936).

12. Haynes v. Washington, 373 U.S. 503 (1963) (quoting Wilson v. United States 162 U.S. 613 (1896)).

13. Kassin, supra note, 1 at 11.

14. Id.

15. Id.

16. Id. at 12.

17. Gisli H. Gudjonsson et al., False confessions and individual differences: The importance of victimization among youth (2008). 

18. Redlich and Goodman, Taking responsibility for an act not committed: The influence of age and suggestibility, 27 Law and Human Behavior 141-156 (2003).

19. Right to counsel and right to remain silent

20. The Miranda approach did not supplant the old voluntariness doctrine—it simply created a new, more manageable and intransigent way for courts to determine whether a statement, typically a confession, would be admitted at court.  Therefore, the old police tactics that led to involuntary statements remained unconstitutional.

21. Miranda v. Arizona, 384 U.S. 436, 447 (1966) “The examples given above [of physical coercion] are undoubtedly the exception now, but they are sufficiently widespread to be the object of concern.” Clarification not in original.

22. Miranda, 384 U.S. at 448 (1966) “Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented.”

23. Miranda, 384 U.S. at 449 “The authors [of Inbau & Reid Criminal Interrogation and Confessions (1962)] and their associates are officers of the Chicago Police Scientific Crime Detection Laboratory and have had extensive experience in writing, lecturing and speaking to law enforcement authorities over a 20-year period. They say that the techniques portrayed in their manuals reflect their experiences and are the most effective psychological stratagems to employ during interrogations.”  Clarification added.

24. The content and language describing the steps of the Reid Technique is taken from John E. Reid & Associates, Inc.’s website and excerpts a chapter from The Investigator Anthology, John E. Reid and Associates Inc. (1999).

25. Step One.

26. Id. at Step Two.

27. at Step Four.

28. Id. at Step Five.

29. Id. at Step Seven.

30. Id. at Step Eight.

31. at Step Nine.

32. March 1, 2006 Interrogation Transcript, STATE4611; May 13, 2006 Interrogation Transcript, Page 760.

33. March 1, 2006 Interrogation Transcript, STATE4623

34. March 1, 2006 Interrogation Transcript, STATE4612 “Honesty here Brendan is the thing that’s gonna help you.  OK, no matter what you did, we can work through that. . . . Because you’re being the good guy here.  You’re the one that’s saying you know what?  Maybe I made some mistakes but here’s what I did. The other guy involved int his doesn’t want to help himself.  All he wants to do is blame everybody else. OK. And by talking with us, it’s, it’s helping you.  OK?  Because the honest person is the one who’s gonna get a better deal out of everything.”   

35. May 15, 2006 Interrogation Transcript Page 766; 773; “Was she wearing any clothes when she was on the bed?”; “Did he tie her hands in the front, back, arms, feet, tell me how he tied her up.”

37. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891 (2004)

38. Gross, et. al, Exonerations in the United States 1989 through 2003, 95 J. Crim. L. & Criminology 523 (2005).

39. Feld, Real Interrogation: What Actually Happens When Cops Question Kids, 47 Law & Soc'y Rev. 1 (2013).

40. Laurel LaMontagne, Children Under Pressure: The Problem of Juvenile False Confessions and Potential Solutions, 41 W. St. U. L. Rev. 29, 40 (2013).

41. Flores, Access to Counsel, June Juvenile Justice Bulletin 4 (2004).

42. Richard Rogers, Lisa L. Hazelwood, Kenneth W. Sewell, Hayley L. Blackwood, & Jill E. Rogstad, Kimberly S. Harrison, Development and Initial Validation of the Miranda Vocabulary Scale, 33 Law & Hum. Behav. 381, 382 (2009)

43. Laurel LaMontagne, Children Under Pressure: The Problem of Juvenile False Confessions and Potential Solutions, 41 W. St. U. L. Rev. 29, 40 (2013)

44. Feld, Real Interrogation: What Actually Happens When Cops Question Kids, 47 Law & Soc'y Rev. 1 (2013).

45. Id.

46. Id.

47. Leo, False Confessions: Causes, Consequences, and Implications, 37 J Am Acad Psychiatry Law 333 (2009).

48. Feld, Real Interrogation: What Actually Happens When Cops Question Kids, 47 Law & Soc'y Rev. 1 (2013).

49. Leo, False Confessions: Causes, Consequences, and Implications, 37 J Am Acad Psychiatry Law 333 (2009).

50. Id.

51. Model Rules of Prof’l Conduct R. 1.2

52. Albert Alschuler, The Defense Attorney 's Role in Plea Bargaining, 84 Yale L.J. 1308 (1974).

53. Id.

54. Id.

55. Id.

56. Id.

57. Id.

58. Id.

59. Alschuler, supra note 52, at 1306.

60. Id.

61. Alschuler, supra note 52, at 1307.

62. Id.

63. Id.

64. Alschuler, supra note 52, at 1309.

65. Huot v. Commonwealth, 292 N.E.2d 700 (Mass. 1973).

66. Alschuler, supra note 52, at 1309.

67. Glen M. Wilkerson, Public Defenders as Their Clients See Them, 1 AM. J. CRIM. L. 141, 146 (1972).

68. Id at 145.

69. Jonathan D. Casper, American Criminal Justice: The Defendant’s Perspective, 109 (1972).

70. Wilkerson, supra note 19 at 146.

71. Id.

72. Id.

73. Model Rules of Prof’l Conduct R. 1.14

74. James R. Devine, The Ethics of Representing the Disabled Client: Does Model Rule 1.14 Adequately Resolve the Best Interests\Advocacy Dilemma, 49 Mo. L. Rev. 497 (1984).

75. Id. at 498.

76. Id.

77. See, e.g., FED. R. Civ. P. 35(a).

78. At issue in such orders is the "sanctity of the person, by virtue of which personal examinations were at one time regarded as abhorrent. . . . [T]he motion is not a mere formality but requires individualized exercise of the court's discretion." F. James & G. Hazard, Civil Procedure § 6.6, at 189 (2d ed. 1977).

79. See Model Rules of Prof’l Conduct R. 1.14 cmt.

80. Id.

81. Model Rules of Prof’l Conduct R. 1.4.

82. Alschuler, supra note 52, at 1241.

83. Casper, supra note 69 at 105.

84. Id.

85. Id.

86. Id.

87. Id.

88. Id. at 1242.

89. Id.

90. Id.

91. Id.

92. Id.

93. 332 F. Supp. 595 (S.D.N.Y. 1971).

94. Alschuler, supra note 52, at 1242-1243.

95. Id. at 1243.

96. Zelker, 332 F. Supp. at 599.

97. Moore v. United States, 432 F.2d 730 (3d Cir. 1970).

98. Casper, supra note 69 at 107-108.