Times were, everyone knew that nobody would falsely confess.
True, the U.S. Supreme Court had acknowledged the specter of false confessions in rulings from decades past – warning that interrogation could become so psychologically overwhelming that a defendant might falsely confess just to escape his questioners. But in the daily state-court grind of trials, appeals, and harried plea negotiations, the risk of false confession – and the Supreme Court’s oft-repeated cautions – too often seemed distant and theoretical. In contrast, the cases of defendants who confessed to serious crimes were present, all too real, and seemed to demand swift justice. And questions about their confessions’ reliability were too often displaced by courts’ desire for the quick answers that a confession appeared, at least, to provide.
After all, everyone knew that nobody would falsely confess.
But times have changed.
But here’s the twist: This new, scientifically-driven awareness of the problem of false confessions has emerged only in the decades since the United States Supreme Court last visited the Fifth and Fourteenth Amendments’ voluntariness doctrine in 1991’s Arizona v. Fulminante. In other words, the voluntariness doctrine -- itself borne, as several colleagues have noted, in a heat of concern over the risk of false confession – has been held in limbo even while false confessions are being discovered to occur with disturbing regularity. For its part, the Miranda doctrine has been narrowed during the same period of time by a series of rulings that limit its protections. In short, there’s a gap in the law (or, more precisely, in its application) that is allowing the problem of false confessions to linger and perhaps even grow.
It’s time for law schools to do something about it.
In fact, I’d like to suggest that law schools – national stewards of the noble profession of lawyering, responsible for producing the next generation of lawyer-citizens who will shape and change the law to come – are well situated to do something about problematic gaps in the law just like this one.
My colleagues and I at the Center on Wrongful Convictions of Youth – part of Northwestern Pritzker School of Law’s Bluhm Legal Clinic – represent a young, intellectually disabled man named Brendan Dassey. At age sixteen, Brendan confessed during police interrogation – on videotape – to helping his uncle rape and murder a young woman in northern Wisconsin. He was convicted solely on the basis of his confession and sentenced to life in prison. Since his conviction, I and my colleagues at Northwestern Law, along with a dedicated team of our students, have represented him throughout a series of state and federal appeals challenging the voluntariness and reliability of his confession. The case has caught the public eye, in part because of its inclusion in the 2015 Netflix series Making a Murderer, which showcased disturbing aspects of his videotaped interrogation. Those moments included the climax of the so-called confession, when Brendan was unable to describe the method by which the victim was killed and had to be told by police how he must have murdered her – as well as the interrogation’s tragic denouement, in which Brendan, after agreeing that he had committed murder, asked police if they’d return him to school so he could finish his sixth period project. Before the U.S. Supreme Court, we have been joined in representing Brendan by former U.S. Solicitor General Seth Waxman and his team of colleagues at WilmerHale.
Before the Court, we’ve argued that it’s time for the Court to reassert the primacy of its clearly established voluntariness doctrine – to reaffirm its relevance now more than ever, in light of the problem of false confessions. And we have been joined by six certiorari-stage amici, each of whom is an indisputable leader in each of the six separate fields that bear on problem of false confessions. Speaking for psychological scholars who study the dynamics of interrogation and social influence, the American Psychological Association and American Psychiatric Association filed an amicus brief emphasizing how the pressures of interrogation can rapidly overbear young or intellectually vulnerable defendants. Speaking for fifteen individuals who falsely confessed to murder and were later exonerated, as well as the many legal clinics and innocence projects who represented them, the Innocence Network filed a brief emphasizing the sheer numbers of coerced, false confessions about which we now know. On behalf of juvenile justice experts around the country, the esteemed Juvenile Law Center filed a brief explaining why juveniles are particularly vulnerable to police interrogations and, in turn, to falsely confessing. A group of respected current and former prosecutors, including 17 former U.S. Attorneys, filed a brief explaining why false confessions are anathema to justice-minded individuals, while one of the nation’s leading police interrogation trainers filed a brief assuring the Court that interrogation tactics like those used on Brendan Dassey have no place in modern-day police practices. And, of course, an eminent group of doctrinal scholars, including Brandon Garrett, Eve Primus, Randy Hertz, Marty Guggenheim, Tonja Jacobi, Lee Kovarsky, Yale Kamisar, and many others submitted an amicus brief explaining the history, development, and application of the Fifth and Fourteenth Amendment voluntariness doctrine. The firms that submitted these briefs included Covington, Bartlit Beck, Arnold & Porter, Jenner & Block, and Skadden.
The efforts of these amici were monumental – and humbling. We are deeply grateful for the chorus of voices that have brought such a range of expertise to this case – a case that, of course, represents a righteous fight on behalf of a wronged young man. But the contributions of these six amici also underscore that thinking critically about what the law is, and what it should be, is a deeply intellectual, richly interdisciplinary effort that belongs at a university. The Dassey amici combined cutting-edge thinking by leading psychology scholars with bold legal-doctrinal insights; they united trailblazing professional leadership with the voices of once-powerless individuals to whom the law had turned a blind eye. Such efforts embrace the university’s time-honored role as a center of innovative thought leadership. Medical schools develop new treatments and medicines; business schools develop new market understandings and behavioral models; law schools should develop new rules and practices to promote justice, efficiency, and a smoothly functioning body politic.
But this cannot be done in a vacuum. Rather, this must be done by uniting disciplines; by combining theoretical underpinnings with empirical observation; by test-driving doctrinal scholarship in the speedway of real-world practice; and by guiding that practice, in turn, with the crucial insights of scholars. This vision of collaborative legal education and thought leadership energizes me, and I believe it energizes students, too.
After all, such efforts teach our students not only how to perform basic lawyering tasks, but also to ask why the law is as it is – and, if it’s problematic, how to change it for the better. It teaches them that the formidable black-letter doctrines of Torts, Contracts, Property, and Constitutional Law often began as ideas conceived by individual lawyers. And it teaches students to see themselves, in turn, as the next authors of legal doctrine in whatever field they pursue, through the skilled use of lawyers' tools: litigation, negotiation, private contractual agreements, and the pursuit of understanding through study and scholarship. To become not merely practitioners, but physicians of the body politic.
These are lessons best taught together.
I am grateful for the opportunity to blog for the Lounge. Many thanks to Steve Lubet for the invitation.