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  • Saul Kassin, PhD

Why SCOTUS Should Examine the Case of "Making a Murderer’s" Brendan Dassey

Any day now, the U.S. Supreme Court will consider whether to weigh in on the case of Brendan Dassey, convicted “co-star” of the 2015 Netflix documentary "Making a Murderer." The court should review the case because it raises many troubling issues about coercive techniques used on a vulnerable teenager — a population the court has protected in the past.

This is Dassey’s last chance. A federal judge overturned Dassey’s conviction in 2016, ruling that his confession was coerced. A three-judge panel later affirmed that ruling. This past December, however, by a 4-3 vote, the 7th Circuit reinstated his conviction. If the Supreme Court chooses not to hear the case, Dassey will remain incarcerated at least until 2048.

For what it means for juvenile justice, police interrogations and false confessions, this case is troubling. The underlying psychology is highly relevant. That’s why the American Psychological Association submitted an amicus brief urging the court to review it.

As inconceivable as it seems, people under pressure confess to crimes they did not commit. The Innocence Project reports that false confessions contributed to more than 25 percent of its 356 DNA exonerations.

Innocent people don’t send themselves to prison in a random act of self-destruction. So why does this happen? Some individuals are inherently vulnerable; certain police interrogation tactics are coercive. Combine the two sets of risk factors and false confession is often the result.

This brings us to Dassey of Manitowoc County, Wisconsin. On March 1, 2006, Dassey, then 16, sat for hours in an interrogation room. Prosecuting a murder case against his uncle, Steven Avery, two detectives wanted Dassey to implicate Avery in the murder of Teresa Halbach. Eventually, he succumbed, implicating both Avery and himself.

The 7th Circuit evaluated Dassey’s confession by considering the “totality of circumstances” under which it was taken. In reinstating Dassey’s conviction, however, the court’s totality analysis was flawed: While conceding the existence of specific risk factors, it failed to account for how these factors interact.

One issue concerns Dassey’s susceptibility. Over the years, the Supreme Court has cautioned that juveniles should be treated with “special care.” Youth are vulnerable, which is why juveniles are statistically overrepresented in false confession cases. They are more easily manipulated than adults, more compliant and more myopically focused on the present. Citing developmental neuroscience, the National Institute of Mental Health has described the teenage brain as “a work in progress.”

Dassey also has below average intelligence, with a tested IQ of 73, making him even more vulnerable. In the film, he described himself as stupid. “They got into my head,” he confided to his mother. Research shows that people who are intellectually limited do not fully grasp their Miranda rights or the grave consequences of confession; they are also highly suggestible to leading questions.

A second set of issues concerns the processes of interrogation used on Dassey. Rather than compensate for the boy’s limitations, police used the kinds of trickery and deceit that can produce false confessions from fully functioning adults.

Detectives said they knew what happened and had proof, which was untrue. When the boy protested his innocence, they pressed on, and threatened to charge him. Research shows that misrepresenting evidence can disorient people. It can alter people’s perceptions, beliefs, memories, and even certain medical outcomes, as in the classic placebo effect. Yet U.S. courts permit police to lie to suspects about DNA, fingerprints or a failed polygraph. This tactic is rampant in adult false confessions. In the laboratory, it leads innocent college students to apologize for breaking a computer, cheating or stealing money.

Detectives also offered Dassey a lifeline and sought Dassey’s trust by pretending to care for him as they would their own sons. “I’m a father that has a kid your age,” one detective said. “I promise I will not leave you high and dry.”

That subterfuge set the stage for police to introduce calming minimization tactics. Feigning sympathy, they suggested that Avery, not Dassey, was to blame.

U.S. courts normally reject confessions induced by explicit promises of leniency. They recognize that an innocent person feeling trapped and told he has nothing to lose, might be tempted to confess to something he didn’t do. To be sure, Dassey’s investigators made no specific promises. But leniency was strongly implied. “It’s not your fault, remember that,” They said. “You’ve done nothing wrong.” Research shows that when a friendly interrogator assures a suspect in this way, people infer leniency — as if a promise had been made. This might explain a head-scratching juxtaposition in which Dassey both admitted to murder and asked if he would get back to school in time for a project.

The 7th Circuit cited three arguments in support of Dassey’s confession. First, it noted that Dassey was not subject to physical force or mental exhaustion. He wasn’t handcuffed, yelled at or beaten into submission. This is true. But setting the bar this low represents an incomprehensible step backward. Even the Miranda court over 52 years ago understood that a subtle psychological approach can be inherently coercive.

The second argument was that Dassey waived Miranda, that he “nodded in agreement” — and this constituted prima facie proof that his ensuing statement was voluntary. This is only half right. Dassey may have nodded but that gesture more likely conveyed the acquiescence to authority of a low IQ teen — not agreement to waive his constitutional rights. Research shows that individuals who did nothing wrong don’t think they need the protection.

The third argument was that Dassey’s confession showed that he had corroborating knowledge about the crime. Not so fast. Dassey’s final narrative was riddled with inconsistencies and factual errors. Moreover, the detectives had fed him information through a series of hints and leading questions. As in many proven false confession cases, he merely parroted a statement authored by investigators. On this point, too, it is worth noting that fully 95 percent of proven false confessions contain accurate and often vivid facts about the crime that were not in the public domain, facts communicated to innocent suspects through the process of interrogation.

Over the years, the U.S. Supreme Court has sought to protect children, recognizing that they require special care. The treatment of Brendan Dassey — using interrogation tactics built for adults and troubling in their own right — controverts this position and should be re-examined.

Saul Kassin is Distinguished Professor of Psychology at the John Jay College of Criminal Justice of the City University of New York. He is senior author of a White Paper of the American Psychology-Law Society titled “Police-Induced Confessions: Risk Factors and Recommendations.”


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