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Let's talk about the decision to uphold Brendan Dassey's conviction

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
Glad to be here! Sure, I'm a psychology PhD student at John Jay College of Criminal Justice studying police interrogations and false confessions. My main research interests include the social psychological effects of certain interrogation tactics and how they can lead both innocent and guilty people to make a confession.


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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