Trickery, Baiting, Suggestibility and Lies – Interrogation Tactics Described in the Netflix Series “Making A Murderer” Are Not Uncommon

Since the airing of the 10-episode Netflix documentary, “Making a Murderer” began in January 2016, the cases of Steven Avery and Brendan Dassey have drawn a considerable amount of attention from the public and the media around the United States. Many are both surprised and outraged by the details of Avery’s original wrongful conviction, and some believe there may be evidence that Avery was again wrongfully accused and convicted of a horrendous crime. Although less discussed, Mr. Dassey’s related case has also drawn scrutiny from the public, particularly for the way he was interrogated by police. But what many people may not realize is that these practices – lying, baiting, suggestibility and trickery – are actually quite common during police interrogations. Moreover, courts often give their approval or a wink-wink to these kinds of tactics, deeming the confessions obtained through deception admissible as evidence. Deception and Trickery During Interrogation Can Be Permissible Practices such as strategic deception (lying to push for a confession or information), trickery, baiting (telling suspects they have evidence they do not have), “good cop, bad cop” routines, suggesting that there is forensic evidence or another person’s confession that clearly implicates the suspect undergoing questioning, along with other forms of deception are not only permitted during police interrogations, they are often considered “harmless error” even if it leads to a confession that seals the prosecution’s case.  Atty. Ray Dall’Osto provided further comment on the import of this for Mr. Dassey’s case in a January 2016 newspaper interview, which can be found at this link. Of course, there have been times that law enforcement officers’ tactics in obtaining confessions have been held to have gone too far, but the instances are rare. This is due, in part, to the murky line between coercion and “acceptable” deception. There is no bright line rule that says how far is “too far.”  That is why it is essential to have experienced criminal defense counsel who can effectively challenge the admissibility of confessions and suppress them as evidence. Did Investigators Go Too Far? If no hard line exists, it becomes the court’s discretion as to whether or not a suspect’s rights have been violated; and that can create a very slippery slope. Take, for example, Brendan Dassey’s interrogation which is addressed in the Netflix series.  Law enforcement officers are allowed to interrogate a minor without parental consent, but concerns exist about the ability of the minor, young person or person with special needs to understand and properly waive their important constitutional rights to remain silent and to an attorney. Mr. Dassey’s low IQ, the way police misled him in their questioning and the way he seemed to be guessing at the answers calls the reliability of the interrogation into question.  Yet that evidence (which was the chief piece of evidence to actually tie Dassey to the murder) was found admissible.  In light of the Netflix series, there has arisen a public concern that this should not have been and that, at the very least, Mr. Dassey deserves a new trial. Causes of Wrongful Convictions The National Innocence Project has put together the chart below on the principle contributing causes of wrongful convictions, based on actual cases handled and exoneratons obtained.