In this chat format, we gather regular authors and guests in Slack and have a moderated conversation, guided by prompts and questions selected in advance. Participants get to respond to each other's points, make comments, and ask each other questions in real-time.
The transcript has been lightly edited.
Will Crozier 🐙
Welcome to the inaugural chat of An Exercise in Exceptions!
In this format, we'll have a conversation about a topic,
rather than writing a typical blog post. We'll call in some guests that can
contribute something unique to the conversation, and get their thoughts to
explore some topic, issue, or question.
Today's topic: Brendan Dasseys' confession and the 7th Circuit Court's decision to uphold Dassey's conviction.
But before we get into that, let's introduce ourselves.
Timothy and I have our bio pages up
on the website, so first-time readers can check out those.
Today, we're joined by Fabiana
Alceste. Fabi, we appreciate you being here. Care to introduce yourself and
say a bit about your work?
falceste (Fabiana Alceste)
 |
| Fabiana Alceste |
Will Crozier 🐙
Research very relevant to our topic today!
So, let's start with what I think is an easy question: Was the
full 7th Circuit Court's majority opinion correct in ruling Dassey's
confession voluntary? What do you think, Fabi?
falceste
I believe that legally it is incorrect to say that Dassey's
confession on March 1, 2006 was voluntary and I believe that it is an incorrect
legal decision to uphold his conviction based on that confession.
Will Crozier 🐙
I'm in the same boat as you, Fabi. I think they made the
wrong decision. Timothy?
rabbitsnore (Timothy Luke)
Yeah, I agree with the two of you. It's the wrong legal
decision.
Will Crozier 🐙
We're in agreement then — wrong decision. Why, though? Fabi,
as our guest, you can take the first stab.
falceste
Well, I certainly have a lot of opinions, but one thing the
majority, I think, got fundamentally wrong is that Dassey understood and
knowingly, intelligently, and voluntarily waived his Miranda rights.
Miranda rights were created and implemented as a way to
safeguard criminal suspects against the inherent coerciveness of interrogation.
If Dassey waived these rights without fully understanding the implications of
that, then I believe that makes his confession involuntary, which means it
should never have been admitted as evidence.
His willingness to comply with the interrogators, probably a
combination of his age, intelligence, and inexperience with the law, makes me
think that he did not actually grasp the implications of the Miranda waiver. A
wealth of research shows that comprehension of Miranda rights, especially in
juveniles, is alarmingly low, and I think that's the case with Dassey.
rabbitsnore
I pretty much agree with you, Fabi. But I'm looking at the Miranda warning they gave him. It's actually not the worst I've seen. The
language isn't overly complicated. Do you think that makes it better?
falceste
It may be the case that the language doesn't seem overly
complicated to someone like you or me, but we have to keep in mind that this is
an adolescent with an IQ in the low 80s who takes special classes at school due
to his limitations.
rabbitsnore
Yeah, that's true.
Will Crozier 🐙
Does it affect your interpretation at all that his mother
approved of him talking to the police? Provided legal consent, in fact?
falceste
No, not necessarily — in a lot of cases involving juvenile
confessions, parents are likely to comply with police and encourage their
children to do the same. I think for this to be remedied, he would have needed
an effective lawyer in the room during the questioning.
rabbitsnore
In some ways, I can imagine parental consent making it
worse.
Will Crozier 🐙
How so?
rabbitsnore
Knowing that an important authority figure has said it's
okay to talk to the police could encourage you to stay in a coercive
environment.
Parents don't always know what's legally best. If memory
serves, I think Antron McCray (one of the Central Park Five) said his father
told him to confess.
falceste
Exactly. And Miranda comprehension is low, even in adults,
so it wouldn't necessarily make a difference in that regard either.
Will Crozier 🐙
Timothy, is there anything else that jumped out to you as
something the majority got wrong?
rabbitsnore
So many things... You know that part in The Last Jedi where Luke Skywalker says something like,
"Amazing. Every word in that sentence was wrong"?
I was feeling that a lot as I read the majority opinion.
falceste
🤣
Will Crozier 🐙
...ouch
Give us the worst one, then.
rabbitsnore
One thing that jumps out at me: The majority opinion says
that some of the interrogation tactics used on Dassey “reflect practices
advocated by… reformers,” and they cite a paper by Saul Kassin, Sara Appleby,
and Jenny Perillo from 2010 as support for the use of tactics that involve
challenging inconsistencies in the suspect’s story. The majority is right that
reformers (myself included) think that challenging a suspect’s account can be
productive — but they’re deeply mistaken about the interrogation of Dassey
reflecting best practices. When researchers like Kassin, Appleby, and Perillo
talk about challenging an account, they’re usually talking about investigative
interviewing techniques, like the United Kingdom’s PEACE model, which are not
designed to obtain confessions. Instead, investigative interviewing techniques
are designed to obtain as much information as possible, without necessarily
obtaining a confession. The kind of challenging of Dassey’s story that Wiegert
and Fassbender engage in is exactly the kind of thing PEACE-trained
interviewers are taught to avoid because it’s inappropriately closed and
suggestive. The majority opinion is totally distorting what researchers and
reformers have been arguing.
Will Crozier 🐙
For those of us that might not be as familiar with
interrogation techniques, can you give us a quick summary of how a PEACE
interrogation would differ from what the police used with Dassey?
rabbitsnore
PEACE is an acronym for the UK’s interview approach: Planning and preparation, Engage and explain, obtain an Account, Close the interview, Evaluate
the interview. There's too much detail to go into here, but for starters,
deception — especially lying about evidence — is prohibited in the PEACE model.
Investigative interviewing also involves the suspect talking a lot more. PEACE operates on the 80-20
rule — that the suspect should be talking about 80% of the time.
falceste
Pretty much the opposite of American interrogations.
rabbitsnore
Have a look at the transcript of Dassey's interrogation. Wiegert and Fassbender
do most of the talking. It's pretty typical for American interrogators to do
most of the talking.
Will Crozier 🐙
Why is that a problem for Dassey? Couldn't you argue that
the more a suspect talks, the more they could talk themselves out of the
situation, practice their lies, etc.?
rabbitsnore
Well, that's not really a problem if the goal isn't
obtaining a confession. Investigative interviewing is focused on getting as
much information as you can, partly so you can investigate it further.
falceste
It's funny (and not funny), this is actually not the first
time someone has incorrectly cited Kassin's work in defense of coercive
interrogation tactics.
rabbitsnore
What other times are you thinking of?
falceste
The Reid technique, the American-based interrogation
practice that teaches tactics like minimization and lying about evidence, once
quoted Kassin as saying that the Reid technique was "too good." This
is a gross misrepresentation of what Kassin actually meant, which was that
these techniques can actually elicit false confessions from innocent people.
rabbitsnore
Their manual also misreports the research of my PhD advisor
Maria Hartwig. They cite one of her studies (on a completely different
interviewing technique) as support for their technique. So we have that in
common, Fabi — the Reid Technique folks misinterpret both our advisors!
Will Crozier 🐙
It's important to note that the majority opinion was four of
the seven judges. Three judges dissented — quite emphatically.
Timothy, is there anything in the dissent that you thought
was really on point? Anything you wished they'd spent more time discussing?
rabbitsnore
There were two dissenting opinions. I really liked both of
them. The judges made their points artfully and reminded me why I like legal
writing so much. This stood out to me: In Judge Rovner’s dissent, he says,
“What has changed is not the law, but our understanding of the facts that
illuminate what constitutes coercion under the law” (p.69). I think this an
interesting idea. I’m not totally convinced voluntariness standard is the
correct standard for the admissibility of confessions. But I believe Rovner is
correct in asserting that Dassey’s confession doesn’t pass the test, and one of
the reasons we know it doesn’t pass the test is the advancement of research on
false confessions. So much of what might have been naively considered perfectly
acceptable years ago, we now know to be coercive, based on psychological
research. For example, minimization can look benign, but we know from research
it causes false confession rates to increase substantially. And of course, we
see minimization throughout Dassey's questioning.
falceste
I also really appreciated the dissenters for relying on
recent scientific evidence and rejecting the commonsense notion that false
confessions do not exist, are extremely rare, or are only elicited by
"third-degree" tactics like physical threats and violence. We need
more scientifically-informed judges like these.
rabbitsnore
Yeah, I was seriously impressed with them. They were clearly
up to date and well-informed on a lot of contemporary research on confessions
and interrogations.
falceste
I was VERY impressed with their amazing "critical
facts" table.
rabbitsnore
I think that was the first time I've seen a table like that
in a legal opinion.
falceste
Desperate times...
rabbitsnore
And it was spot on.
falceste
Besides what Timothy mentioned, one of the major points that
the dissent expounded on was the contamination in the interrogation and
subsequent confession. The dissent was right to assert that simply because a
confession contains accurate details does not mean that it wasn’t coerced. In
fact, content analyses have shown that known false confessions are extremely
likely to contain details about the crime that are not in the public domain. (On
a related note, if a confession contains inaccuracies, that can be a sign of
unreliability.)
What that "critical facts" table does is provides
an alternative explanation for the majority’s repeated claims that Dassey
possessed guilty knowledge. Though some elements in the table are obviously
compelling for the dissent, like the “shot in the head” detail, the table
highlights other potentially contaminated and less-discussed details, like ones
that were public knowledge and others that were suggested to Dassey after
repeated guessing (e.g., the license plate).
rabbitsnore
I know this is going back to the majority opinion, but it
amazes me that the majority emphasized the importance of the "critical
details" but didn't seem to pay adequate attention to how Dassey's story
is incredibly internally inconsistent.
falceste
Yes!
I think that it can be easy to read or hear these horrific
crime details and not look too closely at where they’re coming from or think
too much about whether they are consistent with the evidence. But those kinds
of elements have huge implications for the voluntariness and reliability of the
statement, so I appreciate that the dissent did take the time to do that.
Will Crozier 🐙
These are all really good points - and I think it's worth
pointing out that we wouldn't be having any of these conversations if Dassey's
interrogations hadn't been video recorded.
falceste
Yes, the importance of the video recording cannot be
overstated.
rabbitsnore
Yeah, true. It's not mandatory to record in a lot of
jurisdictions. We got "lucky" with this one, insofar as we can
actually see what happened. So much of the time, we only get the confession —
the outcome of the process — without seeing how the sausage is made.
falceste
I think that's a huge reason for the insurgency that Making a Murderer has created in the
public.
Will Crozier 🐙
So we have a few instances of misunderstanding research in
the majority opinion. We have a few instances of good understanding of research
in the dissenting opinions.
rabbitsnore
More than a few in the dissent.
Will Crozier 🐙
What are some examples of research we don't have? That is,
what's an issue that appears in this case that you wish we had more research
on?
falceste
Well, I don't have to tell the two of you that it's not a
coincidence that each of us has some kind of minimization research in the
works.
There is some research showing that minimization tactics
imply that the suspect will be treated more leniently if s/he confesses and
more harshly if s/he continues to deny. I don’t think there is any research on
the unusual “honesty” theme that Dassey’s interrogators used (Timothy and I are working on that now).
Will and I, along with others,
are working on whether some types of minimization themes imply more leniency
than others. It may be the case that some types of themes are more of a threat
to voluntariness than others, depending on what they imply about the
circumstances of the crime and the person accused.
I think those would be important research studies for
lawyers and judges to be able to refer to when a case like Dassey's comes
across their desk.
rabbitsnore
"Do the research you want to see in the world." Gandhi
said that, right?
Jokes aside, yeah, I think the minimization research we're
working on is really important — at the risk of sounding immodest. There's been
a lot of work on minimization and its impact on true and false confessions, but
as far as I know, no one has really drilled into the nuances of different
minimization tactics.
falceste
That's what we hope to do in the very near future.
rabbitsnore
Are there particular minimization themes you're really
interested in?
falceste
Yeah, we're interested in the effect of
"accident"-type themes, "peer-pressure",
"under-the-influence", "victim-blaming" themes, etc. Pretty
common themes that may actually influence people's inferences of leniency based
on whether they implicate the suspect's personality vs. circumstances, to name
one factor.
Will Crozier 🐙
More work on minimization is needed, but luckily in the
works. Anything else?
rabbitsnore
Of course. There's always more... Assuming this is a false
confession, it seems that Dassey guesses a lot of the correct details from
suggestive questions. But it isn’t as if Wiegert and Fassbender simply told him
what to say. Sometimes Dassey appears to provide answers that go well beyond
what is suggested in their questions. This shouldn’t be interpreted as a sign
that his confession is reliable, though, since we’ve seen this in a ton of
cases of proven false confessions. In one of his conversations with his mother,
I believe Dassey says he concocted a lot of the details in his statement by guessing.
“(Un)lucky guesses” like this happen quite a bit. Although we’ve seen this
before in false confession cases, we don’t have much (or maybe any)
experimental research on the topic. I wish we knew more about this from lab
studies that could give us a better sense of the process by which this occurs.
falceste
I do have data on the process of contamination from a lab
study I conducted about a year ago. Once we analyze the audiotapes of the
interrogations and confessions, we might have a better understanding of the
process of contamination. So… stay tuned for that.
rabbitsnore
Ooh, exciting!
falceste
But, yes, I agree, contamination is something that has been
largely overlooked in the literature, even though it is the process by which
false confessions can be made to seem reliable and credible.
Will Crozier 🐙
Timothy, it sounds like what you're suggesting isn't
necessarily the officers giving a detail and then the suspect subsequently
putting it into their story, like we normally think of as contamination but
instead, how well suspects can GUESS details based on a seemingly-harmless
sounding question, but that they have to answer a few times.
rabbitsnore
Well, it is contamination insofar as it's accurate detail in
a false confession. Yeah, I'm specifically thinking about detail that the
interrogators don't mention.
Will Crozier 🐙
That seems like a form of contamination that would be much
more difficult to catch on a recording. You couldn't just point to a place
where an officer provides an answer.
rabbitsnore
Right, exactly. Contamination can result from a suspect
essentially repeating what they learned from an interrogator's questions or
from evidence presented to them (e.g., crime scene photos). But it can also
come — apparently — from guessing about details as well. As far as I know, we
don't have a clear idea of how this happens — for example, what
"helps" a suspect guess accurately.
Will Crozier 🐙
Well, that wraps up the main topics I wanted to get your thoughts
on. Any final comments, Fabi?
falceste
Just that I really commend your efforts to communicate our
science to the public through this medium. I think this is so important, and
I'm glad to have been a part of it. Keep it up!
rabbitsnore
Thanks, Fabi!
Will Crozier 🐙
Thanks indeed! The more we can communicate our science, the
better it can be used in court, I think.
rabbitsnore
Not only in court, but in the process leading up to it —
investigations, interviews, interrogations...
Will Crozier 🐙
Well, Fabi, thanks for joining us! That wraps up what I
think was a pretty successful and informative chat!
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