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CRITIC’S CORNER: Convicting Dassey: Five easy steps to a false confession

Michael D. Cicchini is a criminal defense lawyer in Kenosha. He is also the author or coauthor of two books and 15 law review articles on constitutional law, criminal law and procedure, and other topics. Visit www.CicchiniLaw.com for more information.

Michael Cicchini is a coauthor of “An Empirical Basis for the Admission of Expert Testimony on False Confessions,” available on the articles page of www.CicchiniLaw.com. He is also the author of the forthcoming book, “Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer,” Prometheus Books (2017).

The trouble with torture as an interrogation tactic is that the suspect will say whatever the interrogator wants to hear — regardless of whether it’s true. Unfortunately, this problem also plagues today’s softer, more sophisticated interrogation tactics.

In “Making a Murderer,” government agents were building a case against Steven Avery when they decided to target his 16-year-old, learning-disabled nephew and potential defense witness: Brendan Dassey. By the end of their interrogation, they not only had removed a key witness from Avery’s defense, but also prompted Dassey to confess as a party to the murder. And even though Dassey’s story was contradicted by the physical evidence, the confession was too powerful for the defense to overcome, and the jury found Dassey guilty.

Throughout Dassey’s case, his lawyers argued that his confession was not only false, but coerced. The trial judge disagreed. Then, in seven short paragraphs unencumbered by legal analysis, our state appellate court cherry-picked a few facts to reach its predetermined conclusion: The confession was voluntary and was therefore properly admitted at trial.

As most of the world knows by now, the federal court disagreed. It recently held that our state appellate court was “not merely wrong but so wrong that no reasonable judge could have reached that decision.”

But putting aside the federal court’s thorough, 91-page decision, the question remains: If you are an interrogator, how do you get a suspect to falsely confess? You have to do at least five things.

Step 1: Jump to conclusions. An interrogation is not a search for the truth; it is a procedure in which guilt is presumed.

In Dassey’s case, the interrogators decided he was guilty before they asked their first question. Why? Because a young relative of Dassey’s had said that, after the victim’s death, Dassey had lost weight and had been crying a lot. The interrogators interpreted this as evidence of his crushing guilt for having taken part in the murder. There was no other rational explanation for why a teenager would behave this way.

Step 2: Be overconfident. Not only is the truth out there, but you, the interrogator, have been granted access to that truth.

Be confident in your knowledge. And when you interrogate the suspect, realize that his claims of innocence are nothing more than his refusal to accept the truth that you already know. As Dassey’s interrogators told his mother when she asked if they were pressuring her son: “We’ve been doing this job a long time and we can tell when people aren’t telling the truth.”

Step 3: Make promises. It is important to make the suspect believe that confessing is in his best interest.

Sometimes this involves making false promises. For example, Dassey’s interrogators told him that they knew exactly what happened, and if he admitted to what they already knew, he would not be arrested or punished. (Alternatively, if he continued to lie to them by asserting his innocence, he would be facing serious consequences.) Beyond this, the interrogators said: “I want to assure you that (we) are in your corner. We’re on your side. … OK, you don’t have to worry about things.”

Step 4: Give the suspect an out. At this point, the suspect may be baffled by the obvious incompatibility between (1) confessing to a crime, and (2) avoiding punishment for that crime. To resolve this tension, you have to give the suspect an out. In Dassey’s case, it was easy: Blame Avery. The interrogators repeatedly said, “It’s not your fault, he makes you do it.” This tactic worked so well that, after taking the bait and confessing to murder, Dassey asked his interrogators what time they would be returning him to school. (If, instead of “school,” Dassey had said “jail,” the answer would have been “now.”)

Step 5: Tell the suspect what you want to hear. Ideally, the details of the confession should come from the suspect, so it’s good to give him a chance to come to the truth. If that doesn’t work, then you may have to be a little more direct. Dassey’s interrogators, for example, wanted him to admit that he or Avery shot the victim in the head, so they repeatedly asked him, “What happened to her head?” Dassey guessed that her hair had been cut off, that her head had been punched and that her throat had been cut. So when he was unable to guess the right answer, the interrogators simply told him what they wanted to hear: “I’m just gonna come out and ask ya, who shot her in the head?” Answer: “He did.”

You have just obtained a false confession, complete with incriminating details, for party to the crime of murder.

One comment

  1. Excellent analysis and I wish we could record interrogations from arrest through the actual confession.

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