The Faculty Lounge

Dayton Law & 2U Partner to Create Hybrid JD

Dayton Law has received a variance from the ABA allowing it to offer a hybrid in-person/online JD program.  Students will be required to come to campus for one week each semester.  One particularly interesting feature of this program is that it's being offered in partnership with 2U, a tech/education/marketing company that is active in the Master of Legal Studies space, paired with law schools at Washington University in St. Louis and Pepperdine.  I'm curious to understand the details of the ABA variance - to understand, among other things,  the percentage of student credits that can be earned online as well as the breadth of upper level courses Dayton intends to offer online.  

Big changes in ABA online education regulations for all law schools may also be in the offing - if the ABA adopts modifications to Standard 306.  But these changes do no appear to go as far as what the ABA has approved here for Dayton. 

When interview becomes interrogation

In earlier posts, I argued for why both Brendan Dassey and the Reid interrogation technique belong in the criminal procedure classroom.  Most recently, I offered a handful of conclusions about how understanding the Reid method can better inform Miranda-related arguments.  In this fourth post, I will explore the relationship between Reid and one of the interrogations left unexplored by the Making a Murderer Netflix documentary series. 

As I noted in my last post, Making a Murderer focuses in episode 3 on Dassey’s March 1, 2006, interrogation, which is at the heart of Dassey’s petition for Supreme Court review.  The documentary, however, does not explore—or even mention—several other Reid interrogations of Dassey.  Dassey’s interactions with law enforcement during those interrogations were critical contributors to his March 1 “confession.”  The most notable of these are an interrogation that occurred on Nov. 6, 2005, and three interrogations that happened on Feb. 27, 2006.  Today I’ll explore what took place on Nov. 6. 

Merging the Reid Technique with Miranda in the Classroom

In prior posts, I argued for why both examples of actual cases such as Brendan Dassey and the Reid interrogation technique belong in the criminal procedure classroom.  As promised, in this third post, I will summarize the Reid technique, relay my experience becoming a Reid-certified interrogator, and preview my thoughts on the technique’s applicability to Dassey.

The Reid interrogation method is based on the Criminal Interrogations & Confessions book. The text is long.  Now in its fifth edition, the authors provide 449 pages of instruction.  Suffice it to say that a blog post is hardly the place to comprehensively review the technique.  But a few points bear mention.  The most important thing to understand is that Reid takes a two-part approach to what the Supreme Court broadly construes as a singular interrogation for Miranda purposes. 

The full scope of the Reid technique is much broader. 

A critical omission from the criminal procedure classroom

In my post last week titled “Bringing Brendan Dassey into the classroom,” I suggested that Brendan Dassey’s case presents the legal academy with a special opportunity to bring the classroom alive—particularly and especially the criminal procedure classroom—in a manner superior to more traditional teaching methods.  At the end, I promised a series of follow-up posts beginning with what I perceive as missing from most criminal procedure syllabi:  teaching interrogation methods. 

At the core of Dassey’s heart-breaking story is the Reid interrogation technique and the failure of investigators and his trial counsel alike to understand how that technique operates—both generally and specifically on the juvenile suspect.  But much more on Dassey’s relationship to Reid in coming posts.  Today, I simply want to explain why the Reid technique belongs in the investigative criminal procedure course. 

The vast majority of American law enforcement deploy the same nine-step interrogation method developed and formalized over decades dating back to 1942.  The true effect of the Reid technique is difficult to appreciate until you understand the strategies underlying the method.  That, in turn, matters to lawyers because it may drive when Miranda rights attach to a suspect—particularly when Miranda custody begins—as opposed to when Miranda should attach. 

Most commonly, the investigative criminal procedure course dedicates considerable time to Miranda jurisprudence.  And appropriately so.  But an understanding of Miranda is just one-half of the equation.  Understanding interrogation methods alongside the accompanying social science literature is the other half.  Law schools can help fill that, in Laura Nirider’s words, “problematic gap.”

I have had the privilege of teaching the investigative criminal procedure course consistently for the past decade.  After teaching it a handful of times, my curiosity about some of the material’s nuances grew.  One nuance—or what I perceived to be a disconnect—stood out to me above all others:  the relationship between interrogation methods and Miranda v. Arizona.  Across several pages of the Miranda majority, Chief Justice Warren extensively discusses interrogation manuals.  He even relied on their prevalence, in part, to justify the Court’s creation of the now famous Miranda warnings. 

If interrogation methods were so important to the Miranda Court’s holding, why wasn’t I teaching them to students?  And which method should I focus on? 

Once again, Miranda had answers.  Buried in the weeds of the Miranda opinion I rediscovered a handful of footnotes that, I confess, I had not previously focused on in prior classes.  There, across more than ten footnotes, Chief Justice Warren cited heavily to Criminal Interrogation and Confessions by John E. Reid and Fred E. Inbau (Williams & Wilkins Company, 1962).  He even noted in a particular footnote that the Reid text “had rather extensive use among law enforcement agencies and among students of police science, with total sales and circulation of over 44,000.” 

I was intrigued.  In the summer of 2009, I dedicated myself to learning the method and have since written about it.  Among many other things, I learned that the 44,000 figure Chief Justice Warren cites to describe the prevalence of the Reid text is dramatically out of date.  Today, investigators learn interrogation techniques from a business—John E. Reid & Associates.  The prevalence of the Reid technique—as taught in seminars and described in Criminal Interrogation and Confessions—cannot be overstated.  Indeed, John E. Reid & Associates is the largest, best-known provider of interrogation training in the United States.  

Officers from every U.S. state use the Reid method.  A nationwide survey of police departments revealed that two-thirds of state police departments train some or all of their department’s officers in the Reid method. The Reid technique also claims international reach.  According John E. Reid & Associates, participants in Reid training come from “every U.S. State and Canadian Province, as well as countries in Europe, Asia and the Middle East.”  The United States military law enforcement also relies on the technique.  

In total, Reid & Associates boasts that more than 500,000 law enforcement and security professionals have attended its interrogation seminars since they were first offered in 1974.  In other words, more than ten times the number who learned the technique in 1966 when Miranda was published. 

The prevalence of the Reid technique speaks for itself.  But its pervasiveness hides a powerful reality:  law enforcement and law students are learning from different playbooks.  That is, law enforcement is learning an interrogation technique without necessarily focusing on the constitutional law that governs that technique.  Meanwhile, law students are learning the governing law without learning the technique.  That must change and, again, Dassey’s case demonstrates why knowledge of the technique—as incorporated into a motion to suppress—could have meaningfully impacted the admissibility of his March 1, 2006, “confession.”

A primer on the Reid technique, my experience on becoming a Reid-certified interrogator and the technique’s applicability to Dassey in my next post.

Bringing Brendan Dassey into the classroom

Last week, Laura Nirider wrote a thoughtful post titled, “False Confessions, Legal Education, and the Brendan Dassey Case.”  Along with her colleagues at the Center on Wrongful Convictions of Youth, Laura represents Brendan Dassey—one of two defendants prominently featured in the 2015 Netflix series Making a Murderer.  In the post, Laura acknowledged the problem of false confessions—a problem she describes as happening “with disturbing regularity.”  She thereafter wrote what, in my opinion, are two critical sentences:

"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."

I agree with her.  Strongly.  As Laura notes, Dassey’s case before the Supreme Court focuses on the voluntariness doctrine.  But the narrow focus of Dassey’s court case hardly tells the full story that we, as law professors, might tell to our students about how Dassey was investigated, represented and ultimately convicted.

The question shifts, then, to how the legal academy might better engage students in the critical topics raised by Dassey’s case—including the role of false confession literature and jurisprudence.  To me, it starts with making it real for students.  Too often the books we teach from and the lectures we give deal in hypotheticals.  What happened to Dassey, though, is not a hypothetical.  And sadly, as Laura notes, his case is far from an anomaly.  The upshot, though, is that students know who Dassey is and they are eager to learn how he was convicted.  In short, his case is the consummate teaching opportunity.

Here at The University of Arkansas, I have twice taught a course called (Un)Making a Murderer and assembled course materials to accompany the class.  I am also in the process of writing a criminal procedure casebook that relies, in part, on filings from Dassey’s case.  Doing so has intimately acquainted me with Dassey’s case (and his co-defendant, Steven Avery) alongside the many legal issues associated with his case. 

To bring Dassey’s case alive for students, I view it as critical to rely on select filings from the litigants, select orders from the courts and appropriate law enforcement investigatory materials.  I’ll submit to you that an investigatory criminal procedure class discussion focused on those materials creates a lively environment unlike a more typical conversation that revolves around discussing one case at a time in a vacuum—disconnected from how that case applies to a real person.  

In a series of posts during my time as a guest here at the Lounge, I’ll propose how law schools might use the diverse range of issues raised specifically by Dassey’s case to better educate students.  Sure, faculty might be interested in teaching a standalone course about Avery and Dassey, but reaching the broader audience of students who enroll in the criminal procedure courses is more salient. 

First, I’ll spend my time here offering some thoughts on how Dassey’s case illustrates the need to teach students about interrogation methods alongside the corresponding judicial opinions.  I felt and feel so strongly about the topic that I became certified in the country’s leading interrogation method. 

Second, I’ll offer some thoughts on why Dassey’s case illustrates some of the complex ways that law enforcement interrogation tactics impact the application of Miranda doctrine.  Demonstrating the disconnect between doctrine and police tactics is important given that so many students will be tasked in their careers with identifying legal issues from interrogation videos or interrogation transcripts. 

Finally, I’ll offer why Strickland v. Washington remains an inadequate measuring stick for defense attorney performance.  Once again Dassey’s case illustrates the harsh Strickland reality:  poor lawyering passes muster for Sixth Amendment purposes. 

Thanks so much for the opportunity to blog here on the Lounge.  Special thanks both to Dan Filler and Steve Lubet.  More on interrogation methods in my first substantive post. 

Call for Workshop Proposals: Institute for Law Teaching and Learning

The Institute for Law Teaching and Learning will be holding its Summer 2017 Conference July 7-8, 2017 at my current (and wonderful) academic home, the University of Arkansas at Little Rock William H. Bowen School of Law.  This year’s conference is entitled “Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302.”  

From the Source:

The Institute invites proposals for workshop sessions addressing how law schools are responding to ABA Standard 302’s call to establish learning outcomes related to “other professional skills needed for competent and ethical participation as a member of the legal profession,” such as “interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.”  The conference will focus on how law schools are incorporating these skills, particularly the skills of cultural competency, conflict resolution, collaboration, self-evaluation, and other relational skills, into their institutional outcomes, designing courses to encompass these skills, and teaching and assessing these skills.  The deadline to submit a proposal is February 1, 2017.  

Using Cognitive Psychology to Improve Student Performance, Part Five: Putting it All Together.

This series has addressed four concepts from educational and cognitive psychology: (1) retrieval practice (“the testing effect”); (2) metacognition and self-regulated learning; (3) spaced repetition; and (4) cognitive schema theory. Each of these concepts alone can improve students’ performance in law school and on the bar. Together, they can make an enormous difference. The problem is that it’s hard to convince students to use these methods when so many forces convey the message that they should stick to popular but antiquated and ineffective methods.

In this post, I’ll describe a number of specific methods that differ from traditional ones but improve students’ success in law school. In my final post, I’ll do the same in the context of bar exam study.

Using Cognitive Psychology to Improve Student Performance, Part Four: Cognitive Schema Theory.

I’d like to discuss one last concept that students can leverage to understand law more effectively. This concept is cognitive schema theory (CST). Like the other topics I’ve discussed in this series, CST is widely accepted in educational psychology.

Like self-regulated learning, CST is a subset of constructivism. Constructivism holds that real learning happens when students make a concept their own by actively discovering knowledge using their own reasoning processes. It embodies the old maxim that instructors should be the “guide on the side” instead of the “sage on the stage.” The problem, as I’ve noted before, is the misguided impression that instructors are indeed there to be the sage on the stage and that the sage is obliged to make doctrine and schema effortlessly obvious.

So, what is CST, and how can it help? 

CFP: The Impact of Formative Assessment: Emphasizing Outcome Measures in Legal Education

The University of Detroit Mercy Law Review has issued a call for proposals for its annual academic Symposium,  The Impact of Formative Assessment: Emphasizing Outcome Measures in Legal Education, to be held on March 3, 2017, at the University of Detroit Mercy School of Law. The Symposium will contemplate how the American Bar Association’s emphasis on outcome measures in its  revised Standards for Approval will affect law students’ educational experience. If you're interested, the deadline for abstracts or proposals is October 31, 2016, and details of the call  can be downloaded here.