Brendan Dassey: A True Story of A False Confession

Brendan Dassey: A True Story of A False Confession
Online CLE - Frequently Asked Questions
Is it legal to question a child without notifying his or her parent in Illinois?
Yes. The legality of an interrogation is evaluated under the Due Process Clause of the Fifth Amendment
to the United States Constitution. Under the Due Process Clause, a confession may be admitted in court
only if it was the product of the defendant’s free and uncoerced will – in other words, if it was
“voluntary.” In order to weigh whether a police-induced confession is voluntary, in turn, courts look to
the “totality of the circumstances” surrounding the interrogation. Factors commonly considered under
the “totality of the circumstances” test include the defendant’s age, intellectual functioning, education,
experience with the criminal justice system, and the tactics used by police during the
interrogation. When the defendant is a child, courts often also look to whether a parent was notified
and/or present during the interrogation. Unfortunately, the presence of the parent is just one factor
among many. As a result, many courts regularly end up admitting confessions where no present was
notified or present as long as the court believes that other factors tend to weigh in favor of
voluntariness. Because such confessions are often deemed acceptable in court, in turn, police officers
often have no incentive to involve a child’s parent in the interrogation process. The rule in Illinois is
followed in the majority of states; however, approximately a dozen states do actually require parental
presence and will not admit statements taken from children outside the presence of their parents.
Do police officers have to read the Miranda warnings to a suspect before questioning him or her?
It depends. The Miranda warnings, which inform a person of his or her constitutional rights to silence
and to counsel, must be read whenever police are (1) interrogating someone who is (2) in custody. A
person is being interrogated when police ask him or her a question that the officer should know is likely
to produce an incriminating reply. A person is “in custody” when the police have deprived that person
of his or her freedom of action in any significant way. Notably, the Supreme Court recently found that
children are more likely to consider themselves “in custody” than adults – for instance, a child
questioned by police at school in the principal’s office would likely feel far less able than an adult to get
up and walk out of that office. In such a case, police might be obligated to read that child his or her
Miranda warnings – while such an obligation might not exist if the person being questioned were an
adult.
Can we be sure that children understand their Miranda rights?
No. The ability of children and teenagers to understand the Miranda rights and apply them to their
immediate situation remains a continuing area of concern. Three decades ago, psychologist Thomas
Grisso concluded in a now-renowned study that the majority of juveniles under age fifteen were not
able to understand at least one of their Miranda rights, even when those rights were properly
communicated. Even Miranda warnings that are written in child-friendly language – so-called “juvenile
Miranda warnings” that were developed to address this problem – still require an eighth-grade
education comprehension level. This is far above the education level of many juvenile suspects. Those
with mental illnesses or diminished intellectual capacity, of course, are even more impaired in their
ability to understand the warnings and apply them to their immediate situations. The best practice to
ensure that children understand the Miranda warnings is for the police officer to ask the child to explain
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back in his or her own words what the rights mean. This also creates the best record of the child’s
understanding.
Is it legal to question a child without an attorney present?
Yes. Children do not have a right to counsel unless they are “in custody” and being “interrogated” by
police. If children are being interrogated while in police custody, police may question a child without an
attorney only if the child has waived his or her Miranda right to counsel. A few states have carved out
very small exceptions to that rule; for instance, Illinois enacted a law in the wake of several prominent
juvenile false confession cases that requires counsel in the interrogation room for children under 13 in
homicide cases and in certain sex-related cases. Such a law essentially prevents the child from waiving
his or her Miranda right to counsel. A bill has passed the Illinois Senate (SB 2370) which would extend
the right to counsel during stationhouse interrogations to children under the age of 15 who are being
interrogated in connection with homicide cases.
How clearly must a suspect invoke his or her Miranda right to counsel?
Very clearly. Courts have been very exacting – many would argue inappropriately so – when deciding
whether someone has invoked his or her right to counsel during interrogation. Law books are filled with
cases in which courts have allowed police officers to ignore what many observers consider clear
requests for a lawyer. Among other things, courts have found the following phrases not to constitute
clear requests for a lawyer: “Maybe I should have an attorney,” “I believe that I want a lawyer,” “Should
I have my lawyer here?,” and “I want to call a lawyer.” To many reformers, this level of exactitude
seems especially misplaced when the suspect is a child or is intellectually limited.
Is it legal to interrogate someone with intellectual deficits?
Yes. Again, the legality of an interrogation turns on whether the resulting confession may be deemed
“voluntary” using the Due Process clause’s totality of the circumstances test. A defendant’s intellectual
functioning is, again, just one of the many factors considered by courts in determining whether a
confession is voluntary. As long as other factors appear to weigh in favor of voluntariness, many courts
will admit even confessions by intellectually limited individuals.
What level of corroboration is required before a confession may be used in court?
Not enough. Generally speaking, even confessions that are largely uncorroborated and unreliable are
often admitted and used in court, because the rules that govern when such confessions may be used in
court have not been revised in light of our modern-day awareness of false confessions. When it comes
to corroboration, many courts rely on a now-outdated principle called the “corpus delicti” rule. While it
varies from state to state, the corpus delicti rule generally allows courts to admit confessions so long as
there is some extremely minimal level of corroboration. For instance, if a person confesses to killing
John Doe, and there is evidence that John Doe is dead and that his death was not accidental, many
courts consider that enough “corroboration” to satisfy the corpus delicti rule and admit the
confession. In other words, Illinois courts require only some evidence that a crime was committed to
corroborate a suspect’s confession and do not require that the details of the suspect’s confession fit the
objective and knowable facts about the crime.
Are juveniles particularly vulnerable to making false confessions?
Yes. The prefrontal cortex of the teenage brain – the part of the brain responsible for judgment that
acts as a brake on impulsivity – is not yet fully developed until the early 20s. As a result, teenagers are
particularly vulnerable to outside pressures and unable to fully weigh long-term consequences, leading
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to typical teenage risk-taking behaviors. In the interrogation room, these characteristics of the teenage
brain can translate too easily into false confessions. This reality has been recognized by the U.S.
Supreme Court as well as leading law enforcement authorities like the International Association of
Chiefs of Police, which has called for reforming juvenile interrogation tactics to compensate for this
vulnerability, decrease the pressure of interrogation, and avoid false confessions.
Are police officers permitted to lie to youthful suspects during interrogations?
Yes. Police are permitted to use deception when questioning suspects. Courts have allowed police to
falsely claim that they already know who committed the crime, to falsely claim to have evidence which
implicates the suspect, to falsely suggest that the suspect’s co-defendants have confessed, and to use
other forms of deception. Again, the use of deception is just one factor in the “totality of
circumstances” that courts must weigh in determining whether a confession is voluntary. Lying to
youthful suspects, however, increases the risk that a suspect will falsely confess. Even the leading
interrogation trainer, John E. Reid & Associates, suggests that deception should be used as a “last
resort” and that it should not be used with “youthful suspects” of “low social maturity.”
What protections are recommended for children during interrogation?
The CWCY has worked with partners like the International Association of Chiefs of Police to develop a
host of recommended protections for children during interrogation. Those protections include giving
children a meaningful opportunity to consult with a lawyer during interrogation; using nonconfrontational interrogation techniques built on rapport-building and cognitive interviewing rather
than on confrontation, deception and accusation; limiting the length of interrogations and precluding
interrogation during times when a youthful suspect is expected to be asleep; avoiding fact-feeding at all
costs during juvenile interrogations; and electronically recording all interactions between police and
juvenile suspects. For more information on these protections, please visit www.cwcy.org.
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