Dassey V Dittmann

Dassey v. Dittmann; the Voluntary False Confession

S00619043 Table of Contents

I. Introduction ...... 1

II. Dassey v. Dittmann; the Seventh Circuit Split ...... 2

A. Public Outrage Over Making a Murderer ...... 2

B. March 1st Interrogation and Confession ...... 6

C. A Court Divided ...... 10

III. Law of Confessions: How They Are Failing the Most Vulnerable ...... 12

A. U.S. Statistics on Exonerating the Voluntary False Confession ...... 12

B. Fifth Amendment: Rights Against Self-incrimination ...... 16

C. Fourteenth Amendment: Protection Against Coercive Police Tactics ...... 21

D. Sixth Amendment: Right to Representation ...... 26

E. Standard of Review: Antiterrorism and Effective Death Penalty Act of 1996 ..28

IV. Previously Proposed Remedies and Their Obstacles ...... 30

A. Banning the Reid Technique and Other Accusatory Police Interrogation Tactics

...... 30

B. Federally Mandated Video-recording of Interrogations ...... 35

C. The Admissibility of False Confession Experts at Trial ...... 37

D. Supreme Court Clarification of “special care” ...... 40

V. Waiving Constitutional Rights...... 43

A. Comparative Law: Waiving the Right to Counsel; Easier than Buying a Mattress

...... 43

B. Sixth Amendment Expansion ...... 51

VI. Conclusion ...... 55

S00619043 I. Introduction

His confession was not voluntary and his conviction should not stand, and yet an

impaired teenager has been sentenced to life in prison. I view this as a profound

miscarriage of justice.i

On December 8, 2017, in a 4-3 decision, the en banc Seventh Circuit reversed its own panel, as well as the district court below, to hold the confession of a mentally-impaired, sixteen year old Brendan Dassey voluntary under the Fourteenth Amendment’s due process clause.ii The majority concluded, under due process, the truthfulness or reliability of the confession is essentially irrelevant;iii rather the determining factor of the confession’s voluntariness under the

Fourteenth Amendment is, in view of the totality of the circumstances surrounding the confession, a question of whether Brendan Dassey’s will was overborne.iv The en banc Seventh Circuit determined it was not.v This comment uses the interrogation, conviction, and appeal of Brendan

Dassey to highlight the gaps in legal protections for those who voluntarily give unreliable confessions; it proposes a Sixth Amendment solution to remedy the proliferation of false confessions at the intersection of police interrogation tactics and constitutional rights by mandating the presence of counsel during custodial interrogations.

II. Dassey v. Dittmann; the Seventh Circuit Split

A. Public Outrage Over Making a Murderer

“[O]ur society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent.”vi

Public opinion disagrees with Justice O’Connor; there is an ever-decreasing confidence in the criminal justice system.vii On December 18, 2015, film-makers Laura Ricciardi and Moira

Demos released the docu-series, Making a Murderer, on Netflix streaming service.viii The ten hour

1 long series documents the wrongful conviction, exoneration, separate investigation, trial, and final conviction of Manitowoc County resident Steven Avery and his nephew Brendan Dassey.ix The convictions were instantly decried as a blatant failure by the justice system.x Although Netflix has yet to release the number of times the docu-series has been viewed due to company policy, it is estimated in the dozens of millions across the world.xi On social media and websites that facilitate user interaction, outrage has exploded over the interrogation tactics used by investigators, the behavior of Brendan’s defense counsel, and the admissibility of Brendan’s taciturn confession by

Wisconsin State Judge Jerome Fox, all of which led to Brendan’s life sentence with the possibility of early release in 2048.xii

The judiciary has an interest, not only in upholding the Constitution’s unparalleled protections against convicting the innocent,xiii but to quell public outrage and bitterness toward the justice system.xiv With the 2017 Netflix release of Confession Tapes,xv which chronicles criminal convictions based solely on recanted confession, and a second docu-series of the Avery and Dassey cases due to premiere,xvi public ignorance of a system that convicts defendants based only on recanted confessions that have zero substantial corroborating evidence is waning and ire rising.xvii

B. March 1st Interrogation and Confession

Early on October 31, 2005 Steven Avery placed a call to Auto Trader wanting to sell a minivan using their services.xviii Teresa Halbach, a photographer for Auto Trader, responded to the assignment, traveled to the Avery Salvage Yard, took photos of the car to place in the magazine, and, according to Steven Avery, left the premises.xix She was never seen again.xx Steven Avery was placed under arrest for murder.xxi

As investigators began to build its case against Steven Avery, suspicion around Brendan began to form.xxii Brendan’s cousins had made comments to police about Brendan losing weight

2 rapidly and acting more morose than normal.xxiii Over the course of forty-eight hours, investigators questioned sixteen year old Brendan four times.xxiv On March 1st, 2006, agents Fassbender and

Weigert went to the Mishicott school system, withdrew Brendan from school, and took him to a police station to conduct a custodial interrogation.xxv Neither his mother, Barb Janda, or an attorney were present in the room with Brendan during the interrogation.xxvi Brendan signed a waiver of his constitutional rights articulated to him via a Miranda warning.xxvii Eventually,

Brendan described a detailed account of how he, along with Avery, raped and murdered Teresa

Halbach then incinerated her body in a barrel in a salvage yard.xxviii After confessing to the crime,

Brendan then asks for permission to be taken back to school so that he can turn a project in for his last class of the day.xxix Brendan was placed under arrest.xxx By the time of the trial, Dassey’s attorney filed for a motion to suppress the confession, which was denied after Judge Jerome Fox, found “[n]othing on the video tape visually depict[ing] Brendan Dassey as being frightened or intimidated by the questions of either investigator”.xxxi The video is admitted to trial, shown to the jury, and Brendan Dassey was sentenced to life in prison for the murder of Teresa Halbach.xxxii

During trial, investigators presented no substantial physical evidence linking Dassey to Halbach’s murder; he was convicted on the confession alone.xxxiii

C. A Court Divided

After exhausting his state appellate remedies, Brendan filed a petition for a writ of habeas corpus in the federal district court claiming his confession was false and elicited involuntarily.xxxiv

The district court granted Brendan habeas relief citing that in light of the totality of the circumstances, Brendan’s confession was inadmissible because it was involuntarily coerced.xxxv

On appeal, the Seventh Circuit panel affirmed, however the opinion was vacated pending an en banc hearing.xxxvi On December 8, 2017, in a 4-3 en banc vote, the Seventh Circuit upheld the

3 voluntariness of Dassey’s confession, denying him habeas relief.xxxvii The majority opinion undergoes a totality of the circumstances analysis of Brendan’s confession.xxxviii The Court weighed factors such as the fact that Brendan Dassey was sixteen years old at the time of the interrogation, previously had limited interaction with police, and had an IQ in the low 80s against factors such as Brendan’s access to the bathroom, food, and water throughout the interrogation, the non-confrontational tone of the interrogators’ questioning, and his general calm demeanor.xxxix

Police use of deceptive tactics and their effect on Brendan were discussed, but ultimately, the majority held the Wisconsin appeals court determination that Brendan’s will was not overborne was reasonable under the Antiterrorism and Effective Death Penalty Act of 1996.xl Concerning the reliability of the confession, the majority joins with the dissent in noting “some of the confession’s inconsistencies [are] startling”,xli but ultimately concludes that the reliability of the confession is only one factor in a Fourteen Amendment due process analysis.xlii The majority offers no legal remedy should a jury convict a defendant based on voluntary false confessions, even if no corroborating evidence is admitted. Assuming Dassey’s confession is false what recourse does he, or other defendants who voluntarily give false confessions have? We will now look at the law of confessions; their strengths and weaknesses.

III. The Law of Confessions: How They Are Failing the Most Vulnerable

A confession is like no other evidence. Indeed, ‘the defendant’s own confession is

probably the most probative and damaging evidence that can be admitted against

him . . . confessions have profound impact on the jury, so much so that we may

justifiably doubt its ability to put them out of mind even if told to do so.’xliii

A. Statistics on Confessions

“People who are innocent don't confess in the detail provided to the extent [Brendan

Dassey] provided. They don't do that . . . People who are innocent don’t confess”.xliv

Since 1989 over 2,144 convicted persons have been exonerated in the United States;xlv 260 gave false confessions.xlvi Brandon Garret, University of Virginia School of Law Professor, and the Innocence Project, conducted research on a smaller group of DNA exonerees, and recorded that 38 of 353 defendants, exonerated with the help of DNA evidence, gave not only false confessions, but detailed false confessions.xlvii Professor Garret argues one contributing factor to how an innocent person can give a detailed false confession is due to the phenomenon of confession contamination.xlviii This occurs when defendants are exposed to pertinent details about the case via the news, prior questioning with investigators, the public, etc. and then repeat the information during interrogation. xlix Usually, these contaminations are the means by which the defendant is able to confess details “only the [perpetrator] would know . . . .”l

Seventh Circuit Chief Judge Wood in her dissent argues the interrogation and confession of Brendan Dassey is instance of such contamination.li In a detailed chart embedded in her dissent,

Chief Judge Wood evinces critical bits of information prosecutors argued were first provided by

Dassey that had actually first been uttered by interrogators Fassbender and Wiegert.lii This lends to the notion that confession contamination may be more frequent than its description

“phenomenon” indicates. Despite the extolling of confessions as virtuous,liii it must be acknowledged the innocent do confess and they do so “with shocking regularity . . . .”liv

B. Fifth Amendment: Right Against Self-Incrimination

Often courts look to the required recitation of constitutional rights mandated in Miranda v.

Arizonalv as the failsafe protection of the Fifth Amendment right against self-incrimination and as a counter-balance to the psychological ploys used by police officials to obtain confessions.lvi This

5 prophylactic rule requires interrogators to inform suspects of the right to remain silent and their right to an attorney before conducting a custodial interrogation.lvii However, Miranda warnings are not the panacea to eliciting only reliable confessions.lviii Whether through ignorance of the law, misconceptions of police tactics via television and movies, or intimidation by police that doesn’t rise to the level of legal coercion, many defendants consider remaining silent or asking for an attorney as consciousness of guilt and waive their rights.lix Coupled with the authorized use of police deception, suspects who are ignorant to the fact that interrogators are not their advocates but operate in an adversarial system find themselves producing false confessions.lx However, when a suspect makes a statement during custodial interrogation, the burden is on the government to show that the defendant “voluntarily, knowingly and intelligently” waived his rights.lxi This waiver of rights need only be proved by a preponderance of the evidence and is often done so with a written waiver signed by the defendant.lxii The court is uninterested in the subjective reasoning as to why a suspect waives their rights.lxiii Should a suspect suddenly decide to stop speaking to police, their initial right to abstain from self-incrimination has already been waived and subsequently, the suspects’ post-waiver silence in custodial interrogations can be used against them at trial.lxiv A closer look at the Miranda warnings that were recited to Brendan before his

February 27th interrogation shows confusing language that imply the high expense a lawyer would cost Brendan or the alternative of receiving one only when he goes to court; “[y]ou have this right to the advice and presence of a lawyer even though you cannot afford to hire one. We have no way of getting you a lawyer but one will be appointed for you if you wish and if and when you go to court.”lxv The possibility all Brendan took away from those sentences was “[he] cannot afford to hire one” and since the agents “have no way of getting [him] a lawyer” the only way to find an attorney is “when [he] goes to court”, is no concern of the reviewing court when determining the

6 voluntariness of Brendan’s waiving of his rights.lxvi The Supreme Court has not dictated the words in which the essential information must be conveyed.lxvii With no provision for the comprehension of the serious nature of the exercise and waiving of Fifth Amendment rights against self- incrimination, the exercise thereof depends entirely on the education level or personality type of the defendant.lxviii

C. Fourteenth Amendment: Protections Against Coercive Police Tactics

[The] due process clause requires ‘that state action, whether through one agency or

another, shall be consistent with the fundamental principles of liberty and justice

which lie at the base of all our civil and political institutions.’ lxix

On remand from the Supreme Court,lxx in the 1986 decision Miller v. Fentonlxxi, the standard of determining the voluntariness of a confession is discussed by the Third Circuit.lxxii In reviewing the voluntariness of a confession, a court must consider the effect that the totality of the circumstances the interrogation process had upon the will of the defendant that led to the confession.lxxiii More than just nudging the conscience into admission, the standard applied is whether the defendant's will was “overborne” thus inducing the confession.lxxiv Factors to be considered include 1) the youth of the accused; 2) his lack of education or his low intelligence;

3) the lack of any advice to the accused of his constitutional rights; 4) the length of detention;

5) the repeated and prolonged nature of questioning; and 6) the use of physical punishment such as the deprivation of food or sleep.lxxv The Supreme Court has further indicated that it does not matter that the accused confessed because of the promise, so long as that promise did not overbear his will.lxxvi Apparently, the words “obtained by . . . promises” have been read to mean “obtained because the suspect's will was overborne by . . . promises.”lxxvii It is the duty of the prosecution to establish the voluntariness of the confession by a preponderance of the evidence.lxxviii However,

7 on collateral review, the habeas corpus petitioner must prove involuntariness by a preponderance of the evidence.lxxix The Supreme Court has held that the issue of voluntariness is “a legal, rather than a factual question . . . [and] a matter for independent federal appellate determination.”lxxx The

Court even goes as far as to specify that as long as the decision to confess is a product of the suspect's own balancing of competing considerations, the confession is voluntary. lxxxi

In J.D.B. v North Carolinalxxxii, the Supreme Court—rather than set out limited set of relevant circumstances for the totality test—requires police officers and courts to “examine all of the circumstances surrounding the interrogation.”lxxxiii This includes any circumstance that “would have affected how a reasonable person” in the suspect's position “would perceive his or her freedom to leave.”lxxxiv Conversely, the “subjective views harbored by either the interrogating officers or the person being questioned” are irrelevant.lxxxv A court should make no consideration of the “actual mindset” of the particular suspect subjected to police interrogation.lxxxvi Only if other aspects of the interrogation strengthened the illusion it was non-adversarial in character could a defendant’s confession have been involuntary because of psychological coercion. lxxxvii

In applying the voluntariness analysis under the Fourteenth Amendment’s Due Process

Clause to Dassey v Dittmann,lxxxviii we see how the Seventh Circuit came to the conclusion, regardless of its reliability, Brendan’s confession was voluntarily given.lxxxix The Supreme Court has held that reliability is irrelevant to the question whether a confession is voluntarily given; the truth of the confession remains for the jury to determine, and as such, voluntarily false confession have no protection under the Due Process Clause of the Fourteenth Amendment.xc

D. Sixth Amendment: Right to Counsel

[I]n our adversary system of criminal justice, any person haled into court, who is

too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided

to him. This seems to us to be an obvious truth . . . [L]awyers in criminal courts are

necessities, not luxuries.xci

The Sixth Amendment provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”xcii This right was

“intended to minimize the public prosecutor's tremendous advantage” over the common man in matters of law and procedure.xciii In Gideon v. Wainwright,xciv the U.S. Supreme Court reaffirmed criminal defendants’ right to counsel under the Sixth Amendment.xcv However, this right to counsel attaches after “a prosecution is commenced . . . ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment”’;xcvi and only applies at a “critical stage” of the proceedings, which includes post-charge interrogations.xcvii

With the Sixth Amendment right to counsel applying only after formal proceedings, no protection is afforded against the production of false confessions which occur during custodial interrogation, pre-charge.xcviii The Supreme Court sees a confession, unlike any other pretrial proceeding, as capable of producing the most damning evidence against the defendant’s interests;xcix and in Brendan’s case, the Sixth Amendment offered zero protection against the interrogators “tremendous advantage”.c

E. Standard of Review: Reasonableness and the Antiterrorism and Effective Death

Penalty Act of 1996

The Seventh Circuit looked to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) to establish the standard of review for their jurisdiction to consider the voluntariness of Brendan’s confession.ci AEDPA establishes:

Section 2254(d) provides that a state court conviction cannot be overturned unless

the state courts’ adjudication of a federal claim on the merits: (1) resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States;

or (2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.cii

The Seventh Circuit holds, while their analysis of Brendan’s confession, with its starling inconsistencies may have been different, they cannot definitively say the

Wisconsin Appeals Court’s determination reached the unreasonableness of the AEDPA standard.ciii “Disagreement on a particular judgment call does not show that the state court found the facts unreasonably”.civ Such standards of review, so severely deferential to state holdings, greatly limits the ability for appeals courts to remedy wrongs that have procedural accuracy but lack common sense.cv Without DNA evidence to exonerate defendants who give voluntary false confessions, like Brendan, they will fade into the prison system through the “reasonableness” haze under standards of review like AEDPA.cvi

IV. Previously Proposed Remedies and Their Obstacles

This section of the comment discusses proposed remedies made by dissenting opinions, law reviews, non-primary case law.

A. Banning the Reid Technique and Other Accusatory Police Interrogation Tactics

“History amply shows that confessions have often been extorted to save law enforcement officials the trouble and effort of obtaining valid and independent evidence.”cvii

Techniques used by investigators across the United States have come from the “most widely used approach to question subjects in the world”—the Reid technique. cviii The Reid

10 technique consists of nine steps.cix Reid offers interrogation course certification from as little as one day to the advanced training that takes four days, one could only marvel at the minimal requirements needed to become an interrogator.cx

Although courts acknowledge “police questioning as an essential tool in society’s compelling interest in finding, convicting, and punishing those who violate the law”,cxi other have found accusatory techniques, like Reid, to “ha[ve] the ability to extinguish the individual’s sacred legal rights to be presumed innocent until proven guilty and to remain silent in the face of police questioning.”cxii In Miranda, the Supreme Court repeatedly cited and implicitly criticized approaches like the Reid technique.cxiii

However, banning accusatory investigation techniques may not be what is needed to remedy false confessions should the Reid technique methods used by investigators not measure up to the level of psychological coercion prohibited by law. At the Seventh Circuit en banc oral argument, Justice Hamilton asks Brendan’s counsel what suggestion she would give to law enforcement when they are dealing with someone who has limited mentality and a minor.cxiv The answer is ambiguous, and justly so.cxv Such suggestion could only be enforced by Supreme Court precedent and the Seventh Circuit sternly articulates to Brendan’s counsel their inability and unwillingness to create new law on habeas review.cxvi Currently, the law remains that police are free to mislead suspects, including the existence of physical evidence against them, to the results of polygraphs, to the statements of alleged cohorts incriminating them in the crime.cxvii With

“police questioning as an essential tool in society’s compelling interest in finding, convicting, and punishing those who violate the law,” banning accusatory techniques may not be the most efficient means of protecting the most vulnerable from producing false confessions.cxviii

B. Federally Mandated Video-Recording of Interrogations

Currently twenty-three states have statutory mandates for video-tapping confessions.cxix

Professor Garret, the Innocence Project, and the Marshall Project (responsible for updating the

National Registry of Exonerations) have all proposed mandatory video-recording of custodial interrogations as a preventative measure against false confessions.cxx The benefits of a federal mandate are numerous; visual proof of the environment at the time of the interrogation is helpful in analyzing the behavioral dynamics that occurred during the interrogation and keeps investigators cognizant their behavior will be scrutinized.cxxi However, with only general parameters on the manner of recording, the video recordings remain unreliable in the breadth of interaction between police and suspects.cxxii Recordings can be stopped and started at the will of the investigators, often visual angles don’t capture the defendant’s responses, and they are incapable of determining the defendant’s comprehension of the circumstances. Recordings do not remedy the production of false confessions by defendants.

C. The Exclusion of False Confession Experts at Trial

“The truth of the confession remain[s] for the jury to determine.”cxxiii

Should a defendant recant their confession and attempt to argue it was coerced and subsequently false at trial, they must overcome another obstacle; trial courts are split on how they determine the admissibility of expert testimony on false confession. cxxiv Generally courts fall into one of the following four categories: 1) Some courts only admit expert testimony that discusses a particular defendant’s mental condition;cxxv 2) others limit the discussion to a general description of the phenomenon;cxxvi 3) still others permit a particularized discussion of the elements of a false confession present in the suspects confessions;cxxvii and 4) many other courts, both at the state and federal level simply exclude this kind of testimony—whether or not it discusses a cognizable mental condition, the false confession phenomenon in general, or a particularized application of

12 the false confession theory.”cxxviii Most defendants rely on a motion to suppress the confession as their only recourse for excluding the confession, as in the case of Brendan Dassey, and if that is denied, little hope remains for the admission of expert testimony on the reliability of the confession at trial.cxxix With the exclusion of such expert testimony, what recourse do defense attorneys have in convincing a jury of the falsity of the confession?

D. Supreme Court Clarification of “special care”

The Supreme Court has made it clear that juvenile confessions call for “special care” in evaluating voluntariness.cxxx In juvenile cases, the law is concerned with the ease of which a minor can be coerced to giving false information to police when prompted as well as whether a friendly adult is present for or consents to the interrogation.cxxxi In oral arguments for the en banc hearing of Dassey v. Dittmann, the Seventh Circuit asks Wisconsin state’s counsel for evidence that the

Wisconsin Court of Appeals applied the “special care” standard mandated by the Supreme Court to the totality of the circumstances analysis of Brendan’s confession, due to his age of minority and low comparative IQ.cxxxii State’s counsel concedes that the state appellate court mentioned

Dassey’s age and mental capabilities briefly but that is their prerogative; cursory as it may be.cxxxiii

The terse nature of the state appellate court’s mention of Brendan’s qualities that qualify his confession to be reviewed with “special care” prompted an entire analysis in the en banc majority’s opinion.cxxxiv Chief Judge Wood, in her dissent, argues if the Wisconsin Court of Appeals had done what it should have in applying the “special care” standard to the analysis of the confessions,

“it could not reasonably have concluded that Dassey's confession was either voluntary or reliable”.cxxxv

Should Brendan’s appeal be heard by the Supreme Court, this may be a point the Court must clarify, but it should also keep in mind how this will prevent false confessions by persons who are not minors, not mentally impaired, but simply have a personality type that acquiesces to authoritative pressures. As Justice Alito points out in his J.D.B. dissenting opinion:

Age . . . is in no way the only personal characteristic that may correlate with

pliability, and in future cases the Court will be forced to choose between two

unpalatable alternatives. It may choose to limit today's decision by arbitrarily

distinguishing a suspect's age from other personal characteristics—such as

intelligence, education, occupation, or prior experience with law enforcement—

that may also correlate with susceptibility to coercive pressures. Or, if the Court is

unwilling to draw these arbitrary lines, it will be forced to effect a fundamental

transformation of the Miranda custody test—from a clear, easily applied

prophylactic rule into a highly fact-intensive standard resembling the voluntariness

test that the Miranda Court found to be unsatisfactory.cxxxvi

Protection for the most vulnerable in society does not need to be solved by a clarification of the

“special care” standard for a vacillating group of persons, minors or the mentally impaired;cxxxvii it must be made available for all persons who find themselves in the “inherently coercive” situation with police.cxxxviii

V. Waiving Constitutional Rights

A. Comparative Law: Waiving the Right to Counsel; Easier than Buying a

Mattress

Waiver of the rights articulated in Miranda warnings must be made “voluntarily, knowingly, and intentionally”;cxxxix there is no mention of an ensured comprehension by the defendant of the waiver. In Berghius v. Thompkins,cxl the Supreme Court held the defendant waived his right to remain silent under Miranda by initially responding to question by interrogating officer; it could not be un-waived.cxli In Commonwealth v. Womack,cxlii

Massachusetts Supreme Court held defendant’s thirty to forty minute silence in the middle of the interrogation to the interrogator's question “was not an exercise of his right to remain silent, but a failure to respond to a particular question” and was thus “admissible in evidence . . . and subject to comment.”cxliii In contrast, in the State of Texas, one cannot waive their rights under the

Deceptive Trade Practices Act unless, among other requirements, they are represented by a legal

15 counsel.cxliv Which means, waiving your constitutional right to an attorney or to remain silent is easier than buying a mattress in Texas.cxlv

Imagine for a moment that in order for a defendant to waive the right to counsel, that waiver must withstand the muster of the following DTPA requirements for a valid waiver.cxlvi First, for a valid waiver of the right to representation in giving a voluntary confession, both police and defendant must have had equal bargaining power.cxlvii Equal bargaining power means that the

“knowledge and experience” of the parties are equal so that one party is not being intimidated into making a deal or doing so out of ignorance of the full weight of their actions.cxlviii A trained police officer should not be able to get a valid waiver from a defendant who has no experience with the legal system, believes the police are acting as advocates—not adversaries—and has no reason to distrust their motives or the facts being told to them, has only just heard these rights for the first time and has little chance of truly comprehending the full extent such a waiver/confession entails.cxlix Secondly, the waiver would have to be freely negotiated, as opposed to boilerplate non-negotiated language.cl With no method of ensuring comprehension of the Miranda rights during recitation, evidence of their frequent use lends the Miranda warnings as having become boilerplate language to defendants.cli Third, the Court would have to ask if there was a knowing misrepresentation or concealment of a known fact on the part of the police that Brendan, or any defendant, could not inspect the veracity of.clii Fourth, the causation for waiving the right to representation must not have been fraudulently induced, misleading, or deceptively acquired.cliii

In fact, it must be clear that the defendant understands that he is waiving all reliance on any words spoken by the police.cliv The defendant should understand that he cannot rely on any promises, facts, or opinions spoken by the police.clv In our hypothetical of applying DTPA standards to the waiving of constitutional rights, if the police at any point deceive the defendant into giving a

16 confession based on a knowing misrepresentation then the confession should be inadmissible.clvi

If the defendant did not have the ability to inspect the facts being spoken by the police, then the confession should be inadmissible.clvii Lastly, in order to waive constitutional rights if we apply the DTPA standards, there must be an attorney present and the terms of the waiver must be understood by both the attorney and the defendant.clviii If this DTPA provision was mandated for application to the waiving of constitutional rights, perhaps less lives would be lost to procedural failings.clix

It is rather concerning that the State of Texas gives greater protection to ensuring a meeting of the minds in a consumer transactions than the waiver of constitutional rights and confessions to heinous crimes.clx More than Miranda warnings, a true comprehension of the waiving of the right to representation must be made by parties with equal bargaining power, equal sophistication of parties, and an understanding that waiving a constitutional right is done without any reliance on any truthful or deceptive representation made by the investigators.clxi If confessions enjoyed the level of scrutiny afforded consumer waivers in Texas, reliability of confessions would be higher and would result in the conviction of the guilty, not the innocent.

B. Expansion of the Sixth Amendment

“[The] right to the assistance of counsel . . . is indispensable to the fair administration of our adversarial system of criminal justice.”clxii

The Supreme Court has ruled that the denial of counsel during a critical stage of a criminal proceeding amounts to an unconstitutional deprivation of a fair trial, warranting the reversal of

17 conviction.clxiii Given the Supreme Court’s dicta on the damning power of confessions,clxiv as well as the 260 victims of wrongful convictions who falsely confessed (as well as unknown others who wait for evidence to exonerate themselves), it is time to re-characterize the critical nature of custodial interrogations as a critical stage in a criminal proceeding.clxv

The proposed expansion would require the suspect to meet with an attorney, either of their choice or court appointed, before custodial interrogation may begin and who remains present with them throughout the interrogation process; not after the filing of formal proceedings by the accuser.clxvi Only after conferring with legal counsel can an individual decide if they wish to represent themselves pro se, choose silence over self-incrimination, or give a truly voluntary confession. Benefits would include the ensured comprehension of constitutional rights by the defendant ensured by the presence of an advocate during custodial interrogations; translating, giving permission to stay silent, and rendering aid—even psychological aid.clxvii The presumption is that the full extent and protection offered by the recitation of constitutional rights, as well as the dangers and possible outcomes, cannot be comprehended without the assistance of legal counsel.clxviii

It could be argued that every defendant is under psychological duress due to their being unaware of the deceptive tactics police can use to illicit information from them.clxix Police do not operating as advocates, but players in an adversarial system; the role of advocate belongs to defendant’s counsel.clxx The technique of isolating a suspect with the hope they won’t exercise their right to an attorney and divulge some bit of informational fodder is a deceptive technique that frustrates already tense relationships between the public and law enforcement.clxxi The citation of instances where such techniques have worked at catching the truly guilty cannot be reconciled with even one false confession and innocent conviction.clxxii

Fifth Amendment protections remind defendants they have the right to ask for representation via Miranda.clxxiii With the extension of the Sixth Amendment to cover custodial interrogations, Miranda warnings would change to accommodate the changes in protections for the right to representation, namely in the ease with which they are waived.clxxiv Likewise, due process review concerning the voluntariness of confessions will begin to diminish in the wake of truly voluntary confessions made with full knowledge and intent to confess to the crime, rather than span years in the appeals process roaming in the nebulous “reasonable” review.clxxv

VI. Conclusion

The Supreme Court has approved police use of deceit in eliciting a confession.clxxvi The Court has also held that the reliability of confessions is not a concern.clxxvii Further, the Supreme Court precedent has dictated that confessions are among the most damning and probative kind of evidence.clxxviii When all of these holdings are juxtaposed in a real life application like that of

Brendan Dassey, a tragic adherence to form over substance erodes common sense justice.clxxix The addition of yet another prophylactic “clear rule that can be easily applied in all cases,” extending the Sixth Amendment to begin with custodial interrogations, will foreseeably be met with intense litigation and debate as predicted by Justice Alito.clxxx Such analysis is outside the scope of this paper.

Table of Authorities

CASES:

1. Anders v. California, 386 U.S. 738 (1967).

2. Arizona v. Fulminante, 499 U.S. 279, (1991).

3. Berghius v. Thompkins, 560 U.S. 370 (2010).

4. Burt v. Titlow, 134 S.Ct. 10 (2013).

5. Bachman v. Leapley, 953 F.2d 440 (8th Cir. 1992).

6. Bruce v. Estelle, 536 F.2d 1051 (5th Cir. 1976).

7. Boyer v. State, 825 So. 2d 418 (Fla. Dist. Ct. App. 2002).

8. California v. Beheler, 463 U.S. 1121 (1983).

9. California v. Prysock, 453 U.S. 355 (1981).

10. Colorado v. Connelly, 479 U.S. 157 (1986).

11. Commonwealth v. Womack, 929 N.E.2d 943 (Mass. 2010).

12. Crane v. Kentucky, 476 U.S. 683 (1986).

13. Culombe v. Connecticut, 367 U.S. 568 (1961).

14. Dassey v. Dittmann, 201 F. Supp. 3d 963 (E.D. Wis. 2016), aff’d Dassey v. Dittmann,

860 F.3d 933 (7th Cir. 2017), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL

6154050 (7th Cir. Dec. 8, 2017).

15. Dassey v. Dittmann, 860 F.3d 933 (7th Cir. 2017), aff’g Dassey v. Dittmann, 201 F. Supp. 3d

963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050

(7th Cir. Dec. 8, 2017).

16. Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 (7th Cir. Dec. 8, 2017) (en banc).

17. Dickerson v. United States, 530 U.S. 428 (2000).

18. Erwin v. Smiley, 975 S.W.2d 335 (Tex. 1998).

19. Frazier v. Cupp, 394 U.S. 731 (1969).

20. Florida v. Powell, 559 U.S. 50 (2010).

21. Gallegos v. Colorado, 370 U.S. 49 (1962).

22. Gideon v. Wainwright, 372 U.S. 335 (1963).

23. Graham v. Florida, 560 U.S. 48 (2010).

24. Greenwald v. Wisconsin, 390 U.S. 519 (1968).

25. Haley v. Ohio, 332 U.S. 596 (1948).

26. Harrington v. Richter, 562 U.S. 86 (2011).

27. Haynes v. Washington, 373 U.S. 503 (1963).

28. Herrera v. Collins, 506 U.S. 390 (1993).

29. Hicks v. Hepp, 871 F.3d 513 (7th Cir. 2017).

30. Hutto v. Ross, 429 U.S. 28 (1976).

31. In re Gault, 387 U.S. 1 (1967).

32. In re Jerrell C. J., 699 N.W.2d 110 (Wis. 2005).

33. J.D.B. v. North Carolina, 564 U.S. 261 (2011).

34. Johnson v. Trigg, 28 F.3d 639 (7th Cir. 1994).

35. Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980).

36. Maine v. Molten, 474 U.S 159 (1985).

37. Martin v. Wainwright, 770 F.2d 918 (11th Cir. 1985).

38. McNeil v. Wisconsin, 501 U.S. 171 (1991).

39. Miller v. Fenton, 741 F.2d. 1456 (3rd Cir. 1984).

40. Miller v. Fenton, 474 U.S. 104 (1985).

41. Miller v. Fenton, 796 F.2d 598 (3rd Cir. 1986).

42. Minnick v. Mississippi, 498 U.S. 146 (1990).

43. Miranda v. Arizona, 384 U.S. 436 (1966).

44. Moran v. Burbine, 475 U.S. 412 (1986).

45. New York v. Quarles, 467 U.S. 649 (1984).

46. Passama v. State,735 P.2d. 321 (Nev. 1987).

47. People v. Hamilton, 415 N.W.2d 653 (Mich. Ct. App. 1987).

48. Pritchett v. Commonwealth, 557 S.E.2d 205 (Va. 2002).

49. Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156 (Tex. 1995).

50. Rice v. Collins, 546 U.S. 333 (2006).

51. Roper v. Simmons, 543 U.S. 551 (2005).

52. Stansbury v. California, 511 U.S. 318 (1994).

53. State v. Dassey, 827 N.W.2d 928 (Wis. Ct. App. 2013).

54. State v. Deets, 523 N.W.2d 180 (Wis. Ct. App. 1994).

55. State v. Rettenberger, 984 P.2d 1009 (Utah 1999).

56. Steese v. State, 960 P.2d. 321 (Nev. 1998).

57. United States v. Adams, 271 F.3d 1236 (10th Cir. 2001).

58. United States v. Cronic, 466 U.S. 648 (1984).

59. United States v. Gouveia, 467 U.S. 180 (1984).

60. United States v. Hall, 93 F.3d 1337 (7th Cir. 1996).

61. United States v. Johnson, 351 F.3d 254 (6th Cir. 2003).

62. United States v. Leiker, 37 M.J. 418 (C.M.A. 1993).

63. United States v. Montgomery, 555 F.3d 623 (7th Cir. 2009).

64. United States v. Shay, 57 F.3d 126 (1st Cir. 1995).

65. United States v. Raposo, No. 98 CR. 185 (DAB), 1998 WL 879723 (S.D.N.Y. Dec. 16,

1998).

66. United States v. Wade, 388 U.S. 218 (1967).

67. Wardius v. Oregon, 412 U.S. 470 (1973).

68. Warney v. State, 947 N.E.2d 639 (N.Y. 2011).

69. Woodall v. State, 754 S.E.2d 335 (Ga. 2014).

70. Woods v. Donald, 135 S.Ct. 1372 (2015).

71. Yarborough v. Alvarado, 541 U.S. 652 (2004).

STATUTES:

72. The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1)–(2)

(1996).

73. The Texas Deceptive Trade Practices Consumer Protection Act, TEX. BUS. & COM. CODE

ANN §§ 17.41 et seq. (Vernon 1987 & Supp. 2002).

74. FED. R. CRIM. P. 44(a).

75. U.S. CONST. amend V.

76. U.S. CONST. amend. VI.

PERIODICALS:

News Articles

77. Andy Thompson, ‘Making a Murderer’ Sequel Not Likely to Air on Netflix in 2017, THE

POST CRESCENT (DEC. 1, 2017, 4:27 PM),

http://www.postcrescent.com/story/news/2017/12/01/making-murderer-sequel-not-likely-air-

netflix-2017/912893001/.

78. Cara Tabachnick, Young People Have “Little Confidence” in Justice System, THE CRIME

REPORT (April 29, 2015), https://thecrimereport.org/2015/04/29/2015-04-young-people-have-

little-confidence-in-justice-syste/.

79. David Browne, ‘Making a Murderer’: The Story Behind Netflix’s Hit True-Crime Show,

ROLLINGSTONE (Jan. 6, 2016), http://www.rollingstone.com/tv/news/making-a-murderer-the-

story-behind-netflixs-hit-true-crime-show-20160106 [https://perma.cc/9BSN-YX5D].

80. Douglas Starr, Do Police Interrogation Techniques Produce False Confessions?, THE NEW

YORKER (Dec. 09, 2013), https://www.newyorker.com/magazine/i2013/12/09/the-interview-7

[https://perma.cc/GVJ2-4X98].

81. Douglas Starr, Juan Rivera and the Dangers of Coercive Interrogation, THE NEW YORKER

(May 22, 2015), https://www.newyorker.com/news/news-desk/juan-rivera-and-the-dangers

of-coercive-interrogation [https://perma.cc/JW7R-8JCB].

82. Douglas Quan, Alberta Judge Slams Use of 'Reid' Interrogation Technique in Calgary Police

Investigation, CALGARY HERALD (Sept. 11, 2012),

http://www.calgaryherald.com/news/Alberta+judge+slams+Reid+interrogation+technique/72

23614/story.html [https://perma.cc/W6EN-XQEE].

83. Jethro Nededog, Here’s How Popular Netflix’s ‘Making a Murderer’ Really Was According

to a Research Company, BUSINESS INSIDER (Feb. 12, 2016, 2:28 PM),

http://www.businessinsider.com/netflix-making-a-murderer-ratings-2016-2

[https://perma.cc/4H6C-5CUE].

84. Lisa Respers France, CNN, Whitehouse Responds to ‘Making a Murderer’ Petition, (Jan. 8,

2016, 10:49 AM), http://www.cnn.com/2016/01/08/entertainment/making-a-murderer-white-

house-petition-feat/index.html [https://perma.cc/3XD9-BHZE].

85. Maurice Chammah, For the Record, THE MARSHALL PROJECT (April, 08, 2015, 7:15 AM),

https://www.themarshallproject.org/2015/04/08/for-the-record.

86. Nick Schager. ‘The Confession Tapes’ Provides a Harrowing Look at False Murder

Confessions, THE DAILY BEAST (Sept. 12, 2017, 1:00 AM),

https://www.thedailybeast.com/netflixs-the-confession-tapes-your-new-true-crime-tv-

obsession.

OTHER:

Journals

87. Brian R. Gallini, Police “Science” in the Interrogation Room: Seventy Years of Pseudo-

Psychological Interrogation Methods to Obtain Inadmissible Confessions, 61 HASTINGS L. J.

529 (2010).

88. Daniel Epps, The Consequences of Error in Criminal Justice, 128 HARV. L. REV. 1065

(2015).

89. David A. Perez, The (In)Admissibility of False Confession Expert Testimony, 26 TOURO L. R.

23 (2010).

90. Kevin Lapp, Taking Back Juvenile Confessions, 64 UCLA. L. REV. 02 (2017).

91. Major Peter Kageleiry, Psychological Police Interrogation Methods: Pseudoscience in the

Interrogation Room Obscures Justice in the Courtroom, 193 MIL. L. REV. 1 (2007).

92. Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering the

Legality of Deceptive Interrogation Techniques, 33 FORDHAM URB. L.J. 791 (2006).

Court Filings

93. Brief of Defendant-Appellant, Dassey v. Dittmann, 860 F.3d 933 (2017) (No. 2010AP3105-

CR) 2011 WL 6286867.

94. Brief of Plaintiff-Respondent, Dassey v. Dittmann, 860 F.3d 933 (2017) (No. 2010AP3105-

CR) 2012 WL 1121280.

95. Oral Argument, Dassey v. Dittmann, 2017 U.S. App. WL 6154050 (7th Cir. Dec. 8, 2017)

(en banc) (No. 16-3397), http://media.ca7.uscourts.gov/sound/2017/rs.16-3397.16-

3397_09_26_2017.mp3 [https://perma.cc/MJ3T-KGWJ].

96. Reply Brief of Defendant-Appellant, Dassey v. Dittmann, 860 F.3d 933 (2017) (No. 2012

AP3105-CR) 2012 WL 2420871.

97. Transcript of Ruling on Motion to Suppress Confession, State of Wisconsin v. Dassey (2006)

(No. 06 CF 88), available at http://jenniferjslate.com/wp-content/uploads/2016/01/

Dassey_Decision_MotiontoSuppress_5.12.2006.pdf [https://perma.cc/BA8H-UCGU].

*Note – This is a transcript from a trial; there is no case citation other than the No. 06 CF 88.

98. Transcript of March 1st Custodial Interrogation, State of Wisconsin v. Dassey (2006) (No. 06

CF 88), available at http://jenniferjslate.com/wp-content/uploads/2016/01/Interview

Transcript_3.1.06.pdf [https://perma.cc/3RWV-SCM2].

*Note – This is a transcript from a trial; there is no case citation other than the No. 06 CF 88.

99. Transcript of Interview with Brendan Dassey at Two Rivers Police Dept. at 484, State of

Wisconsin v. Dassey [case citation] (2006) (No. 06 CF 88), available at

http://jenniferjslate.com/wp--content/uploads/2016/01/InterviewTranscript_at_PoliceDept

_2.27.06.pdf [https://perma.cc/5NPS-G64R].

*Note – This is a transcript from a trial; there is no case citation other than the No. 06 CF 88.

100. Transcript of Dassey Trial - Day 9, State of Wisconsin v. Dassey (2006) (No. 06 CF 88),

available at http://jenniferjslate.com/wp-content/uploads/2016/01/DasseyTrial

_Day9_4.25.07.pdf [https://perma.cc/Y6PD-V74R].

*Note – This is a transcript from a trial; there is no case citation other than the No. 06 CF 88.

Websites and Blogs

101. JOHN E. REID & ASSOCIATES, INC., http://www.reid.com [https://perma.cc/H4AZ-EYAR].

102. JOHN E. REID & ASSOCIATES, INC.,

http://www.reid.com/training_programs/r_training.html [https://perma.cc/UQ85-9NBT].

103. DNA Exonerations in the United States, INNOCENCE PROJECT,

https://www.innocenceproject.org/dna-exonerations-in-the-united-states/

[https://perma.cc/7UJ5-KZDE].

104. False Confessions & Recording of Custodial Interrogations, INNOCENCE PROJECT,

https://www.innocenceproject.org/false-confessions-recording-interrogations/

[https://perma.cc/MTS4-S6LX].

105. Elder_Priceless, Making a Murderer-Brendan Dassey, REDDIT, (Dec. 20, 2015, 9:58

PM), https://www.reddit.com/r/MakingaMurderer/comments/3xmic0/brendan_dassey/

[https://perma.cc/GCN8-LXER].

106. Jolindse, TickTockManitowoc-Brendan Lost, REDDIT, (Dec. 8, 2017),

https://www.reddit.com/r/TickTockManitowoc/comments/7ihuf5/brendan_lost/

[https://perma.cc/5F69-BRDF].

107. Matt Kurylo, Does Asking For A Lawyer Make Me Look Guilty?, KURYLO, GOLD &

JOSEY, (http://virginiadivorcefirm.com/does-asking-for-a-lawyer-make-me-look-guilty/.

108. Michael Seyedian, CHANGE.ORG, Free Steven Avery,

https://www.change.org/p/president-of-the-united-states-free-steven-avery

[https://perma.cc/GAK2-GAN3].

109. Samuel Gross & Maurice Possley, For 50 Years, You’ve Had “The Right to Remain

Silent”, THE MARSHALL PROJECT (May 12, 2016, 10:00PM),

https://www.themarshallproject.org/2016/06/12/for-50-years-you-ve-had-the-right-to-remain-

silent [https://perma.cc/84VF-SA67].

110. THE NAT. REGISTRY OF EXONERATIONS, Glossary, http://www.law.umich.edu/

special/exoneration/Pages/glossary.aspx#FC [https://perma.cc/9GG8-ARBU].

111. THE NAT. REGISTRY OF EXONERATIONS, Detail List, http://www.law.umich.edu/special/

exoneration/Pages/detaillist.aspx [https://perma.cc/RW7U-TD8H].

112. Only Bad Guys Call Their Lawyers, TVTROPES,

http://tvtropes.org/pmwiki/pmwiki.php/Main/OnlyBadGuysCallTheirLawyers.

Books

113. 4 WILLIAM BLACKSTONE, COMMENTARIES, *352.

114. BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO

WRONG (2017).

115. DOUGLAS E. WICKLANDER & DAVID E. ZULAWSKI, PRACTICAL ASPECTS OF INTERVIEW

AND INTERROGATION (Ann Arbor: CRC Press., 2001).

i Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *26 (7th Cir. Dec. 8, 2017) (en banc)

(Rovner, Cir. J., dissenting). ii See Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *1 (7th Cir. Dec. 8, 2017)

(en banc) (holding the state court's determination that defendant confessed to murder voluntarily

was not unreasonable application of Supreme Court precedent, and state appellate court did not make any unreasonable findings of fact). iii See Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *15 (7th Cir. Dec. 8, 2017)

(en banc) (refusing to find fault with lower court’s ruling that reliability of a confession is only part of the totality of the circumstances analysis); Colorado v. Connelly, 479 U.S. 157, 167

(1986) (outlining whether a confession is reliable “is a matter to be governed by the evidentiary laws of the forum . . . and not by the Due Process Clause of the Fourteenth Amendment.”), Crane v. Kentucky, 476 U.S. 683 (1986) (articulating evidence surrounding the confession bears on its credibility as well as its voluntariness). iv See Miller v. Fenton, 474 U.S. 104. 116 (1985) (The purpose of the totality of the circumstances test is to determine whether “the defendant's will was in fact overborne.”);

Culombe v. Connecticut, 367 U.S. 568 (1961) (establishing factors to consider in determining if defendant’s will was overborne resulting in involuntary confession). v See Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *14 (7th Cir. Dec. 8, 2017)

(en banc) (recognizing the state court’s finding Brendan Dassey’s will was not overborne reasonable). vi Herrera v. Collins, 506 U.S. 390, 420 (1993) (O,Connor, J., concurring). vii See Cara Tabachnick, Young People Have “Little Confidence” in Justice System, THE CRIME

REPORT (April 29, 2015), https://thecrimereport.org/2015/04/29/2015-04-young-people-have- little-confidence-in-justice-syste/ (citing Harvard Institute of Politics poll of three thousand persons aged 18-29 years old; two-thirds of blacks and 43% of whites expressing a lack of confidence in the judicial system to judge fairly).

viii See David Browne, ‘Making a Murderer’: The Story Behind Netflix’s Hit True-Crime Show,

ROLLINGSTONE (Jan. 6, 2016), http://www.rollingstone.com/tv/news/making-a-murderer-the- story-behind-netflixs-hit-true-crime-show-20160106 [https://perma.cc/9BSN-YX5D]

(summarizing the subject matter of the ten-part docu-series; including interviews with film makers Ricciardi and Demos). ix See generally David Browne, ‘Making a Murderer’: The Story Behind Netflix’s Hit True-

Crime Show, ROLLINGSTONE (Jan. 6, 2016), http://www.rollingstone.com/tv/news/making-a- murderer-the-story-behind-netflixs-hit-true-crime-show-20160106 [https://perma.cc/9BSN-

YX5D]. x See David Browne, ‘Making a Murderer’: The Story Behind Netflix’s Hit True-Crime Show,

ROLLINGSTONE (Jan. 6, 2016), http://www.rollingstone.com/tv/news/making-a-murderer-the- story-behind-netflixs-hit-true-crime-show-20160106 [https://perma.cc/9BSN-YX5D] (noting twenty days after the December 18, 2015 debut of Making a Murderer on Netflix, an online petition via Change.org received over 300,000 signatures requesting Avery’s release. A similar petition to the White House received 100,000 signatures); see also Michael Seyedian,

CHANGE.ORG, Free Steven Avery, https://www.change.org/p/president-of-the-united-states-free- steven-avery [https://perma.cc/GAK2-GAN3] (showing a total of 536,712 signatures at the close of the Change.org online petition). xi See Jethro Nededog, Here’s How Popular Netflix’s ‘Making a Murderer’ Really Was

According to a Research Company, BUSINESS INSIDER (Feb. 12 2016, 2:28 PM), http://www.businessinsider.com/netflix-making-a-murderer-ratings-2016-2

[https://perma.cc/4H6C-5CUE] (estimating an initial 565,000 average adult viewers upon release of the series. After its first week, the audience for Making a Murderer jumped to 2.3 million

viewers. In fourteen days, it went to 5.5 million. And by thirty-five days, 19.3 million viewers watched the series. These estimates have been described by Netflix ). xii See generally Elder_Priceless, Making a Murderer - Brendan Dassey, REDDIT, (Dec. 20, 2015,

9:58 PM), https://www.reddit.com/r/MakingaMurderer/comments/3xmic0/brendan_dassey/

[https://perma.cc/GCN8-LXER] (archiving user discussion and opinion of the interrogation, trial, and conviction of Brendan Dassey. “I can not fathom how Dassey ended up in prison. No physical evidence and a “confession” that was beyond laughable. No matter how all this pans out, I'd like to see Dassey get post conviction relief with at LEAST a new trial and hopefully, an outright acquittal.”). xiii Herrera v. Collins, 506 U.S. 390, 420 (1993) (O,Connor, J., concurring). xiv See generally Jolindse, TickTockManitowoc - Brendan Lost, REDDIT, (Dec. 8, 2017), https://www.reddit.com/r/TickTockManitowoc/comments/7ihuf5/brendan_lost/

[https://perma.cc/5F69-BRDF] (facilitating the ongoing discussion of the Seventh Circuit decision denying Brendan habeas relief). xv See Nick Schager. ‘The Confession Tapes’ Provides a Harrowing Look at False Murder

Confessions, THE DAILY BEAST (Sept. 12, 2017, 1:00 AM), https://www.thedailybeast.com/netflixs-the-confession-tapes-your-new-true-crime-tv-obsession

(summarizing the series content based on homicide mysteries that may or may not have been convicted on voluntary false confessions). xvi See Andy Thompson, ‘Making a Murderer’ Sequel Not Likely to Air on Netflix in 2017, THE

POST CRESCENT (DEC. 1, 2017, 4:27 PM), http://www.postcrescent.com/story/news/2017/12/01/making-murderer-sequel-not-likely-air-

netflix-2017/912893001/ (proving information on the anticipated release of the sequel to Making a Murderer as being dependent on the on-going factual developments of the case). xvii See generally TickTockManitowoc - Brendan Lost, REDDIT, (Dec. 8, 2017), https://www.reddit.com/r/TickTockManitowoc/comments/7ihuf5/brendan_lost/

[https://perma.cc/5F69-BRDF] (citing a range of public opinion from analysis of Seventh Circuit decision to calls of action). xviii Dassey v. Dittmann, 860 F.3d 933, 938 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F.

Supp. 3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 6154050

(7th Cir. Dec. 8, 2017). xix Dassey v. Dittmann, 860 F.3d 933, 938 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F. Supp.

3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050

(7th Cir. Dec. 8, 2017). xx Dassey v. Dittmann, 860 F.3d 933, 938 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F. Supp.

3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050

(7th Cir. Dec. 8, 2017). xxi Dassey v. Dittmann, 860 F.3d 933, 939 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F. Supp.

3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050

(7th Cir. Dec. 8, 2017). xxii Dassey v. Dittmann, 860 F.3d 933, 939 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F.

Supp. 3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL

6154050 (7th Cir. Dec. 8, 2017).

xxiii Dassey v. Dittmann, 860 F.3d 933, 939 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F.

Supp. 3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL

6154050 (7th Cir. Dec. 8, 2017). xxiv Dassey v. Dittmann, 860 F.3d 933, 940–41 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F.

Supp. 3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL

6154050 (7th Cir. Dec. 8, 2017). xxv Dassey v. Dittmann, 860 F.3d 933, 940 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F.

Supp. 3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL

6154050 (7th Cir. Dec. 8, 2017). xxvi Dassey v. Dittmann, 860 F.3d 933, 941 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F.

Supp. 3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL

6154050 (7th Cir. Dec. 8, 2017). xxvii Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050, at *5 (7th Cir. Dec. 8, 2017) (en banc). (Both Seventh Circuit majority and dissent note the “starling inconsistencies” in

Brendan’s account of the events that occurred on October 31st during the custodial interrogation.) xxviii Dassey v. Dittmann, 860 F.3d 933, 940 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F.

Supp. 3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL

6154050 (7th Cir. Dec. 8, 2017). xxix Brief of Defendant-Appellant at 87, Dassey v. Dittmann, 860 F.3d 933 (2017) (No.

2010AP3105-CR) 2011 WL 6286867 at *1. See also Dassey v. Dittmann, No. 16-3397, 2017

WL 6154050 at *21 (7th Cir. Dec. 8, 2017) (en banc) (Rovner, Cir. J., dissenting) (identifying

Brendan’s request to return to school as “no more conclusive evidence of his literalism and his lack of understanding[.]”). xxx Dassey v. Dittmann, 201 F. Supp. 3d 963, 975 (E.D. Wis. 2016), aff’d Dassey v. Dittmann,

860 F.3d 933 (7th Cir. 2017), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL

6154050 (7th Cir. Dec. 8, 2017). xxxi Transcript of Ruling on Motion to Suppress Confession at 8–9, State of Wisconsin v. Dassey,

(2006) (No. 06 CF 88), available at http://jenniferjslate.com/wp-content/uploads/2016/01/

Dassey_Decision_MotiontoSuppress_5.12.2006.pdf [https://perma.cc/BA8H-UCGU]. xxxii Dassey v. Dittmann, 860 F.3d 933, 944 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F.

Supp. 3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL

6154050 (7th Cir. Dec. 8, 2017). xxxiii Dassey v. Dittmann, 860 F.3d 933, 941–42 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F.

Supp. 3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL

6154050 (7th Cir. Dec. 8, 2017). xxxiv Dassey v. Dittmann, 201 F. Supp. 3d 963, 958 (E.D. Wis. 2016). xxxv Dassey v. Dittmann, 201 F. Supp. 3d 963, 1006 (E.D. Wis. 2016) aff’d Dassey v. Dittmann,

860 F.3d 933, 994–95 (7th Cir. 2017) rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017

WL 6154050 (7th Cir. Dec. 8, 2017). Supra III(C). xxxvi Dassey v. Dittmann, 860 F. 3d 933, 939 (7th Cir. 2017) aff’g Dassey v. Dittmann, 201 F.

Supp. 3d 963 (E.D. Wis. 2016), rev’d en banc, Dassey v. Dittmann, No. 16-3397, 2017 WL

6154050 (7th Cir. Dec. 8, 2017). xxxvii Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 (7th Cir. Dec. 8, 2017) (en banc). xxxviii Supra III(C).

xxxix Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *10 (7th Cir. Dec. 8, 2017) (en banc). xl See Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1)–(2) (1996)

(requiring defendants to show the state court’s proceedings “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.”). xli Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *15 (7th Cir. Dec. 8, 2017) (en banc). xlii Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *15 (7th Cir. Dec. 8, 2017) (en banc)

(“The Court later seemed to signal another direction . . . that whether a confession is reliable, as distinct from voluntary, ‘is a matter to be governed by the evidentiary laws of the forum . . . and not by the Due Process Clause of the Fourteenth Amendment.’”) (quoting Colorado v. Connelly

479 U.S. 157, 167 (1986)). xliii Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting Burton v. United States, 391 U.S.

13, 139–40 (1968)). See also Mark Costanzo, Netta Shaked-Schroer, and Katherine Vinson,

“Juror Beliefs About Police Interrogations, False Confessions, and Expert Testimony” 7 J.

EMPIRICAL LEGAL STUD. 231 (2010) (EP). xliv Transcript of Dassey Trial - Day 9 at 144, State of Wisconsin v. Dassey (2006) (No. 06 CF

88), available at http://jenniferjslate.com/wp- content/uploads/2016/01/DasseyTrial_Day9_4.25.07.pdf [https://perma.cc/Y6PD-V74R].

(quoting attorney Fallon), see also Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *23

(7th Cir. Dec. 8, 2017) (en banc) (Rovner, Cir. J., dissenting) (arguing attorney Fallon’s statement “[p]eople who are innocent don’t confess” to be “unequivocally incorrect”). xlv Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *23 (7th Cir. Dec. 8, 2017) (en banc)

(Rovner, Cir. J., dissenting); see also THE NAT. REGISTRY OF EXONERATIONS, Detail List, http://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx [https://perma.cc/RW7U-

TD8H] (recording 2,144 exonerations in the United States as of Dec. 20, 2017). xlvi See THE NAT. REGISTRY OF EXONERATIONS, Detail List, http://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx [https://perma.cc/RW7U-

TD8H] (detailing 260 exonerees in the United States as of Dec. 20, 2017 convicted due to giving confessions later proven to be false); see also THE NAT. REGISTRY OF EXONERATIONS, Glossary, http://www.law.umich.edu/special/exoneration/Pages/glossary.aspx#FC [https://perma.cc/9GG8-

ARBU]. (providing a definition of false confession for which they have categorized their research). The registry defines a false confession as:

a statement made to law enforcement at any point during the proceedings which

was interpreted or presented by law enforcement as an admission of participation

in or presence at the crime, even if the statement was not presented at trial. A

statement is not a confession if it was made to someone other than law

enforcement. A statement that is not at odds with the defense is not a confession.

A guilty plea is not a confession. xlvii See BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO

WRONG 280 (2017) (providing visual charts to display the facts that 38 out of 40 exonerees who gave false confessions gave detailed false confessions); See also DNA Exonerations in the

United States, INNOCENCE PROJECT, https://www.innocenceproject.org/dna-exonerations-in-the-

united-states/ [https://perma.cc/7UJ5-KZDE] (reporting 353 DNA exonerees as of Dec. 20,

2017). xlviii BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO

WRONG 14 (2017). xlix BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO

WRONG 14 (2017). See also State v. Rettenberger, 984 P.2d 1009 (Utah 1999) (determining the confession involuntary when “it contained little information that was not provided or suggested by the interrogating officer.”); Passama v. State,735 P.2d. 321 (Nev. 1987) (deeming confessions that were the product of “police coercion” involuntary when “the sheriff continued to suggest how the [crime] had occurred until he had secured a written confession.”); Warney v. State, 947

N.E.2d 639 (N.Y. 2011) (holding defendant had adequately plead he was coerced during his interrogation, because he plead that police fed him facts about the crime); but see Steese v. State,

960 P.2d. 321 (Nev. 1998) (finding defendant’s confession voluntary when the police did not provide him with the key facts of the confession). l BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO

WRONG 19 (2017). li See Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *20 (7th Cir. Dec. 8, 2017) (en banc) (Wood, Cir, J., dissenting) (summarizing “how the investigators extracted the ‘critical’ details they were looking for from Dassey.”). lii See Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *20 (7th Cir. Dec. 8, 2017) (en banc) (Wood, Cir, J., dissenting) (charting the persons and introduction of critical details in the interrogation of Brendan Dassey).

liii Minnick v. Mississippi, 498 U.S. 146 (1990) (dissenting opinion by Justice Scalia articulates the “virtuous” nature of wrongdoers confessing to their crimes). liv Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *23 (7th Cir. Dec. 8, 2017) (en banc)

(Rovner, Cir, J., dissenting). For an overview of the proliferation and production of false confessions during custodial confessions, see, e.g., Major Peter Kageleiry, Psychological Police

Interrogation Methods: Pseudoscience in the Interrogation Room Obscures Justice in the

Courtroom, 193 MIL. L. REV. 1 (2007) (concluding police use of the Reid Technique produces unreliable confessions); Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for

Reconsidering the Legality of Deceptive Interrogation Techniques, 33 FORDHAM URB. L.J. 791

(2006) (identifying police use of deceptive facts during custodial interrogations to produce false confessions). lv Miranda v. Arizona, 384 U.S. 436 (1966). lvi United States v. Leiker, 37 M.J. 418, 420 (C.M.A. 1993); see generally Miranda v. Arizona,

384 U.S. 436 (1966) (establishing new protocols for police to notify potential defendants of their rights under the U.S. Constitution before interrogating them). lvii Miranda v. Arizona, 384 U.S. 436, 479 (1966). lviii See Samuel Gross and Maurice Possley, For 50 Years, You’ve Had “The Right to Remain

Amendment rights against self incrimination has failed to prevent false confessions). See also

Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering the

Legality of Deceptive Interrogation Techniques, 33 FORDHAM URB. L. J. 791 (2006) (exploring

the role deceptive interrogation practices by investigating officers has in the production of false confessions). lix See Matt Kurylo, Does Asking For A Lawyer Make Me Look Guilty?, KURYLO, GOLD &

JOSEY, (http://virginiadivorcefirm.com/does-asking-for-a-lawyer-make-me-look-guilty/

(clarifying that asking for an attorney when questioned by the police is not an admission of guilt, but “showing an awareness of your rights under the US Constitution.”); see also Only Bad Guys

Call Their Lawyers, TVTROPES, http://tvtropes.org/pmwiki/pmwiki.php/Main/OnlyBadGuysCallTheirLawyers (informing readers that despite television depictions of “law-abiding citizens . . . waiving their rights . . . without any qualms” this has no bearing on real life and to “say nothing . . . write nothing . . . [a]bove all, sign nothing). lx See Frazier v. Cupp, 394 U.S. 731 (1969) (holding police deception about another suspect’s confession was not coercive); State v. Triggs, 663 N.W.2d 396 (the use of deceptive tactic like exaggerating strength of evidence against suspect does not necessarily make confession involuntary but instead is factor to consider in totality of circumstances). See also Samuel Gross and Maurice Possley, For 50 Years, You’ve had “The Right to Remain Silent”, THE MARSHALL

PROJECT (May 12, 2016, 10:00PM), https://www.themarshallproject.org/2016/06/12/for-50- years-you-ve-had-the-right-to-remain-silent [https://perma.cc/84VF-SA67] (finding based from collected data on 1,810 exonerations as of June 7, 2016, 13 percent or 227 innocent men and women falsely confessed after receiving Miranda warnings. Almost three quarters of those unreliable confessions involved homicide cases).

lxi Miranda v. Arizona, 384 U.S. 436, 444, 475–476; Dickerson v. United States, 530 U.S. 428,

443–444 (2000) (holding “Miranda’s core ruling is that unwarned statements may not be used as evidence in the prosecution’s case in chief.”). lxii See Colorado v. Connelly, 479 U.S. 157, 168 (1986) (holding “[w]henever the State bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a preponderance of the evidence.”). lxiii See Colorado v. Connelly, 479 U.S. 157, 169–70 (1986) (holding the sole concern of the Fifth

Amendment is preventing governmental coercion (citing United States v. Washington, 431 U.S.

181, 187 (1977))). lxiv See Berghius v. Thompkins, 560 U.S. 370, 370 (2010) (holding the fact defendant was silent during first two hours and forty-five minutes of three hour interrogation was insufficient to invoke his right to remain silent under Miranda; defendant waived his right to remain silent under Miranda by initially responding to question by interrogating officer. Police are not required to obtain a waiver of defendant's right to remain silent under Miranda before

re-commencing interrogation). See e.g., Commonwealth v. Womack, 929 N.E.2d 943, 952

(Mass. 2010) (holding that after convicted defendant waived his right to remain silent, his thirty to forty minute silence in the middle of the interrogation to the interrogator's question “was not an exercise of his right to remain silent, but a failure to respond to a particular question” and was thus “admissible in evidence . . . and subject to comment.”). lxv Transcript of Interview with Brendan Dassey at Two Rivers Police Dept. at 484, State of

Wisconsin v. Dassey (2006) (No. 06 CF 88), available at http://jenniferjslate.com/wp-

content/uploads/2016/01/InterviewTranscript_at_PoliceDept_2.27.06.pdf

[https://perma.cc/5NPS-G64R]. lxvi Transcript of Interview with Brendan Dassey at Two Rivers Police Dept. at 484, State of

Wisconsin v. Dassey (2006) (No. 06 CF 88), available at http://jenniferjslate.com/wp- content/uploads/2016/01/InterviewTranscript_at_PoliceDept_2.27.06.pdf

[https://perma.cc/5NPS-G64R]. See also Colorado v. Connelly, 479 U.S. 157, 169–70 (1986)

(establishing Miranda protects defendants from “government coercion leading them to surrender rights that are protected by the Fifth Amendment, it goes no further than that . . . [defendant’s] perception . . . is a matter to which the United States Constitution does not speak.”). lxvii J.D.B. v. North Carolina, 564 U.S. 261 (2011) (“The four warnings Miranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed” (quoting Florida v. Powell, 559 U.S. 50, 60 (2010)); see also California v.

Prysock, 453 U.S. 355, 359 (1981) (per curiam) (“This Court has never indicated that the rigidity of Miranda extends to the precise formulation of the warnings given a criminal defendant.”). lxviii Colorado v. Connelly, 479 U.S. 157, 169–70 (1986) (holding an analysis of the subjective perception of the defendant during confession is not contemplated by the Constitution). lxix See Brown v. Mississippi, 297 U.S. 278, 286 (1936) (citing Hebert v. Louisiana, 272 U.S.

312, 316 (1926). lxx Miller v. Fenton, 474 U.S. 104 (1985) (remanding to the lower court for further proceedings because it was unclear whether that court made a full analysis of the issue of “voluntariness”.

Voluntariness is a legal question requiring independent federal determination, including both claims police conduct were inherently coercive and interrogation techniques were improper). lxxiMiller v. Fenton, 796 F.2d 598 (3rd Cir. 1986).

lxxii See Miller v. Fenton, 796 F.2d 598 (3rd Cir. 1986) (finding, after remand from the Supreme

Court, police use of deceptive tactics to elicit a confession were not a violation of due process clause of Constitution). lxxiii Miller v. Fenton, 796 F.2d 598, 604 (3rd Cir. 1986). lxxiv Miller v. Fenton, 796 F.2d 598, 604 (3rd Cir. 1986). lxxv Miller v. Fenton, 796 F.2d 598, 604 (3rd Cir. 1986). See Woodall v. State, 754 S.E.2d

335, 341 (holding defendant’s “multiple smoking breaks, used the restroom unescorted, and freedom to leave during the entire period of his questioning” as the extent of the voluntariness analysis of his confessed witnessing of the murder of his uncle). lxxvi Hutto v. Ross, 429 U.S. 28, 30 (1976); see also United States v. Johnson, 351 F.3d 254 (6th

Cir. 2003) (finding promises of leniency may be coercive if they are broken or illusory); State v.

Deets, 523 N.W.2d 180, 186 (Wis. Ct. App. 1994) (“[E]xhortation by police that ‘it would be better to tell the truth’ unaccompanied by either a threat or a promise, does not render a subsequent confession involuntary . . .”) (internal quotations omitted); but see United States v.

Montgomery, 555 F.3d 623 (7th Cir. 2009) (noting, under the right circumstances, a false promise of leniency may be sufficient to overcome a person’s ability to make a rational decision). lxxvii Miller v. Fenton, 796 F.2d 598, 608 (3rd Cir. 1986). lxxviii See Miller v. Fenton, 796 F.2d 598, 604 (3rd Cir. 1986). See Lego v. Twomey, 404 U.S.

477, 489 (1972) (holding the prosecution’s burden of proof is a preponderance of the evidence).

The Court affirming:

A confession challenged as involuntary is sought to be used against a criminal

defendant at his trial, he is entitled to a reliable and clear-cut determination that

the confession was in fact voluntarily rendered. Thus, the prosecution must prove

at least by a preponderance of the evidence that the confession was voluntary. lxxix Martin v. Wainwright, 770 F.2d 918, 925 (11th Cir. 1985) (citing Jurek v. Estelle, 623 F.2d

929, 937 (5th Cir. 1980), Bruce v. Estelle, 536 F.2d 1051, 1059 (5th Cir. 1976)). lxxx Miller v. Fenton, 796 F.2d 598, 601 (3rd Cir. 1986). lxxxi Miller v. Fenton, 796 F.2d 598, 605 (3rd Cir. 1986). lxxxii J.D.B. v. North Carolina, 564 U.S. 261 (2011). lxxxiii J.D.B. v. North Carolina, 564 U.S. 261, 271 (2011) (quoting Stansbury v. California, 511

U.S. 318, 322 (1994)). lxxxiv Stansbury v. California, 511 U.S. 318, 325 (1994). lxxxv Stansbury v. California, 511 U.S. 318, 323 (1994). lxxxvi See Yarborough v. Alvarado, 541 U.S. 652, 667; see also California v. Beheler, 463 U.S.

1121, 1125, n. 3 (1983) (per curiam) (remaining unpersuaded by defendant’s contention that he was coerced into speaking with police because he was “unaware of the consequences of his participation.”). lxxxvii Miller v. Fenton, 796 F.2d 598, 607 (3rd Cir. 1986). lxxxviii Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 (7th Cir. Dec. 8, 2017) (en banc). lxxxix Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *15 (7th Cir. Dec. 8, 2017)

(en banc) (quoting Colorado v. Connelly 479 U.S. 157, 167 (1986) a confession’s reliability . . .

“is a matter to be governed by the evidentiary laws of the forum . . . and not by the Due Process

Clause of the Fourteenth Amendment.”).

xc See Colorado v. Connelly 479 U.S. 157, 167 (1986) (clarifying whether a confession is reliable

“is a matter to be governed by the evidentiary laws of the forum . . . and not by the Due Process

Clause of the Fourteenth Amendment”). xci Gideon v. Wainwright, 372 U.S. 335, 344 (1963). xcii U.S. CONST. amend. VI. xciii See Wardius v. Oregon, 412 U.S. 470, 480 (1973) (Douglas, J., concurring) (noting constitutional rights bestowed upon criminal defendants are “designed to redress the advantage that inheres in a government prosecution”). xciv Gideon v. Wainwright, 372 U.S. 335 (1963). xcv Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (“The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours”). xcvi McNeil v. Wisconsin, 501 U.S. 171, 175 (quoting United States v. Gouveia, 467 U.S. 180,

188 (1984)). xcvii See United States v. Wade, 388 U.S. 218, 224 (surmising “our cases have construed the Sixth

Amendment guarantee to apply to ‘critical’ stages of the proceedings.”). xcviii McNeil v. Wisconsin, 501 U.S. 171, 175 (quoting United States v. Gouveia, 467 U.S. 180,

188 (1984)). xcix See Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (commenting on the probative and damaging nature of confessions). The Court explains:

A confession is like no other evidence. Indeed, “the defendant's own confession is

probably the most probative and damaging evidence that can be admitted against

him . . . The admissions of a defendant come from the actor himself, the most

knowledgeable and unimpeachable source of information about his past conduct.

Certainly, confessions have profound impact on the jury, so much so that we may

justifiably doubt its ability to put them out of mind even if told to do so”.

(alterations in original) (quoting Bruton v. United States, 391 U.S. 123, 139–40 (1968) (White,

J., dissenting)) (citing Cruz v. New York, 481 U.S. 186, 195 (1986) (White, J., dissenting));

Arizona v. Fulminante, 499 U.S. 279, 313 (Kennedy, J., concurring) (noting a jury’s difficulty to rest its decision on evidence alone). The Court points out:

If the jury believes that a defendant has admitted the crime, it doubtless will be

tempted to rest its decision on that evidence alone, without careful consideration

of the other evidence in the case. Apart, perhaps, from a videotape of the crime,

one would have difficulty finding evidence more damaging to a criminal

defendant's plea of innocence. c Wardius v. Oregon, 412 U.S. 470, 480 (1973) (Douglas, J., concurring). ci See The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1)–(2)

(1996) (requiring defendants to show the state court’s proceedings “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.”). cii Dassey v, Dittmann, No. 16-3397, 2017 WL 6154050 (7th Cir. Dec. 8, 2017) (en banc)

(quoting 28 U.S.C. § 2254(d)(1), (2)). See also Burt v. Titlow, 134 S.Ct. 10, 12 (2013) (“[The

AEDPA] erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court, requiring them to show that the state court's ruling . . . was so

lacking in justification that there was an error . . . beyond any possibility for fair minded disagreement.” (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). ciii Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *15 (7th Cir. Dec. 8, 2017) (en banc)

(“These findings are reasonable and consistent with the evidence and the relevant law.”). civDassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *14 (7th Cir. Dec. 8, 2017) (en banc); see also Rice v. Collins, 546 U.S. 333, 342 (2006) (limiting federal habeas review from “us[ing] a set of debatable inferences to set aside the conclusion reached by the state court.”). cvDassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *2 (7th Cir. Dec. 8, 2017) (en banc)

(“In considering habeas corpus petitions challenging state court convictions, ‘our review is governed (and greatly limited) by’ AEDPA.” (quoting Hicks v. Hepp, 871 F.3d 513, 524 (7th

Cir. 2017)); see Woods v. Donald, 135 S.Ct. 1372, 1377 (2015) (concluding when a federal court grants habeas relief, the state court’s decision must have been not just wrong, but so wrong that no reasonable judge could have reached the same decision). cvi See Burt v. Titlow, 134 S.Ct. 10, 12 (2013) (conceding AEDPA “erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court, requiring them to show that the state court's ruling . . . was so lacking in justification that there was an error . . . beyond any possibility for fair minded disagreement.” (quoting Harrington v. Richter,

562 U.S. 86, 103 (2011)). cvii Haynes v. Washington, 373 U.S. 503, 519 (1963). cviii JOHN E. REID & ASSOCIATES, INC., http://www.reid.com/training_programs/r_training.html

[https://perma.cc/UQ85-9NBT].

cix DOUGLAS E. WICKLANDER, DAVID E. ZULAWSKI, PRACTICAL ASPECTS OF INTERVIEW AND

INTERROGATION (Ann Arbor: CRC Press.) (2001) (describing the nine steps of the Reid technique). The Reid Technique consists of:

1) Direct confrontation. Advise the suspect that the evidence has led the police to

the individual as a suspect. Offer the person an early opportunity to explain why

the offense took place.

2) Try to shift the blame away from the suspect to some other person or set of

circumstances that prompted the suspect to commit the crime. That is, develop

themes containing reasons that will psychologically justify or excuse the crime.

Themes may be developed or changed to find one to which the accused is most

responsive.

3) Try to minimize the frequency of suspect denials.

4) At this point, the accused will often give a reason why he or she did not or

could not commit the crime. Try to use this to move towards the

acknowledgement of what they did.

5) Reinforce sincerity to ensure that the suspect is receptive.

6) The suspect will become quieter and listen. Move the theme discussion towards

offering alternatives. If the suspect cries at this point, infer guilt.

7) Pose the “alternative question”, giving two choices for what happened; one

more socially acceptable than the other. The suspect is expected to choose the

easier option but whichever alternative the suspect chooses, guilt is admitted. As

stated above, there is always a third option which is to maintain that they did not

commit the crime.

8) Lead the suspect to repeat the admission of guilt in front of witnesses and

develop corroborating information to establish the validity of the confession.

9) Document the suspect's admission or confession and have him or her prepare a

recorded statement (audio, video or written). cx See JOHN E. REID & ASSOCIATES, INC., http://www.reid.com/training_programs/r_training.html

[https://perma.cc/UQ85-9NBT] (offering training courses from one to four days in length). cxi Moran v. Burbine, 475 U.S. 412, 426 (1986). cxii Douglas Quan, Alberta judge slams use of 'Reid' interrogation technique in Calgary police investigation, CALGARY HERALD (Sept. 11, 2002), http://www.calgaryherald.com/news/Alberta+judge+slams+Reid+ interrogation+technique/7223614/story.html (quoting Provincial Court Judge Mike Dinkel).

Judge Dinkel continues, “I denounce the use of this technique in the strongest terms possible and find that its use can lead to overwhelmingly oppressive situations that can render false confessions and cause innocent people to be wrongfully imprisoned.”). See also Moran v.

Burbine, 475 U.S. 412, 426 (1986) (recognizing the Supreme Court identifies the interrogation process is “inherently coercive . . . and that, as a consequence, there exists a substantial risk that the police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion.” (citing New York v. Quarles, 467 U.S. 649, 656

(1984)). cxiii See Miranda v. Arizona, 384 U.S. 436, 455, n. 42 (1966) (warning “[e]ven without employing brutality, the ‘third degree’” used in the Reid technique “exacts a heavy toll on individual liberty and trades on the weakness of individuals,” and “may even give rise to a false confession.”); Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for

Reconsidering the Legality of Deceptive Interrogation Techniques, 33 FORDHAM URB. L.J. 791,

808, n. 93 (2006) (citing the “Inbau Manual”, the methods of which the Reid technique commercialized, being criticized by the Supreme Court in Miranda v. Arizona). cxiv Oral Argument at 38:26, Dassey v. Dittmann, 2017 WL 6154050 (7th Cir. Dec. 8, 2017) (en banc) (No. 16-3397), http://media.ca7.uscourts.gov/sound/2017/rs.16-3397.16-

3397_09_26_2017.mp3 [https://perma.cc/MJ3T-KGWJ]. cxv Oral Argument at 38:50, Dassey v. Dittmann, 2017 WL 6154050 (7th Cir. Dec. 8, 2017) (en banc) (No. 16-3397), http://media.ca7.uscourts.gov/sound/2017/rs.16-3397.16-

3397_09_26_2017.mp3 [https://perma.cc/MJ3T-KGWJ]. cxvi Oral Argument at 39:40, Dassey v. Dittmann, 2017 WL 6154050 (7th Cir. Dec. 8, 2017) (en banc) (No. 16-3397), http://media.ca7.uscourts.gov/sound/2017/rs.16-3397.16-

3397_09_26_2017.mp3 [https://perma.cc/MJ3T-KGWJ]. cxvii Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering the

Legality of Deceptive Interrogation Techniques, 33 FORDHAM URB. L.J. 791, 794 (2006). cxviii Moran v. Burbine, 475 U.S. 412, 426 (1986). cxix See False Confessions & Recording Of Custodial Interrogations, INNOCENCE PROJECT, https://www.innocenceproject.org/false-confessions-recording-interrogations/

[https://perma.cc/MTS4-S6LX] (citing states with laws mandating the recording of custodial interrogations as of 2017; Colorado, Connecticut, Illinois, Kansas, Maine, Maryland, Michigan,

Missouri, Montana, Nebraska, New Mexico, New York, North Carolina, Ohio, Oregon, Texas,

Vermont, Wisconsin, and the District of Columbia). cxx See BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO

WRONG 247 (2017) (noting “videotaping is inexpensive and can shed light on what really

happened in the interrogation room.”); False Confessions & Recording of Custodial

Interrogations, INNOCENCE PROJECT, https://www.innocenceproject.org/false-confessions- recording-interrogations/ [https://perma.cc/MTS4-S6LX] (arguing “the mandated electronic recording of the entire interrogation process protects the innocent, ensures the admissibility of legitimate confessions, and helps law enforcement defend against allegations of coercion.”);

Maurice Chammah, For the Record, THE MARSHALL PROJECT (April, 08, 2015, 7:15 AM), https://www.themarshallproject.org/2015/04/08/for-the-record (postulating “if police had recorded defendant’s interrogation, would [he] be on death row?”). cxxi See Brandon L. Garrett, Convicting the Innocent: where criminal prosecutions go wrong 247

(2017) (emphasizing “videotape can simplify disputes over whether facts were fed or a confession coerced.”); False Confessions & Recording of Custodial Interrogations, INNOCENCE

PROJECT, https://www.innocenceproject.org/false-confessions-recording-interrogations/

[https://perma.cc/MTS4-S6LX] (describing how videotaping interrogations help the innocent).

The Innocence Project proposes:

Creating a record of the entire interrogation, including the interaction leading up

to the confession; ensuring that the suspect’s rights are protected in the

interrogation process; and creating a deterrent against improper or coercive

techniques that might be employed absent the presence of a recording device. cxxii See False Confessions & Recording of Custodial Interrogations, INNOCENCE PROJECT, https://www.innocenceproject.org/false-confessions-recording-interrogations/

[https://perma.cc/MTS4-S6LX] (citing states with laws mandating the recording of custodial interrogations as of 2017; Colorado, Connecticut, Illinois, Kansas, Maine, Maryland, Michigan,

Missouri, Montana, Nebraska, New Mexico, New York, North Carolina, Ohio, Oregon, Texas,

Vermont, Wisconsin, and the District of Columbia). Only a limited number of states mandating the recording of interrogations and there is wide range of specifications on the quality of the recording. cxxiii Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *10 (7th Cir. Dec. 8, 2017) (en banc) (quoting State of Wisconsin v. Dassey, 827 N.W.2d 928 (Wis. Ct. App. 2013)). cxxiv David A. Perez, The (In)Admissibility of False Confession Expert Testimony, 26 TOURO L.

R. 23, 24–25 (2010). cxxv See United States v. Shay, 57 F.3d 126, 131 (1st Cir. 1995) (allowing expert testimony concerning Defendant’s truthful character); United States v. Raposo, No. 98 CR. 185 (DAB),

1998 WL 879723, at *6 (S.D.N.Y. Dec. 16, 1998) (permitting a false confession expert to broadly testify on defendant’s psychological evaluation’s relevance to the falsity and voluntariness of defendant's statement). cxxvi See United States v. Hall, 93 F.3d 1337, 1344-45 (7th Cir. 1996) (permitting expert to give testimony about false confessions and provide the jury with relevant information); Boyer v.

State, 825 So. 2d 418, 420 (Fla. Dist. Ct. App. 2002) (holding expert testimony concerning false confessions was improperly excluded on the issue of voluntariness). cxxvii See People v. Hamilton, 415 N.W.2d 653, 668-69 (Mich. Ct. App. 1987) (holding that expert opinions regarding truthfulness are inadmissible, but approving of expert psychological testimony); Pritchett v. Commonwealth, 557 S.E.2d 205, 208 (Va. 2002) (ruling an expert cannot express an opinion as to the truthfulness of the confession). cxxviii See United States v. Adams, 271 F.3d 1236, 1246 (10th Cir. 2001) (holding expert testimony is prejudicial and unduly influences the jury); Bachman v. Leapley, 953 F.2d 440, 441

(8th Cir. 1992) (“It is the exclusive province of the jury to determine the believability of the

witness. An expert is not permitted to offer an opinion as to the believability or truthfulness of a victim's story.” (citations omitted). cxxix See David A. Perez, The (In)Admissibility of False Confession Expert Testimony, 26 TOURO

L. R. 23, 66 (2010) (finding once police pass interrogation boundaries, defendants are left with only the motion to suppress). cxxx See Haley v. Ohio, 332 U.S. 569, 599 (1948) (establishing when “a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used”.); see also

J.D.B. v. North Carolina, 564 U.S. 261, 277 (2011) (acknowledging defendants under the age eighteen are more susceptible to police pressure than the average adult); Graham v. Florida, 560

U.S. 48 (2010) (recognizing children are more suggestible, impulsive, eager to please, and limited by immature decision-making); Roper v. Simmons, 543 U.S. 551 (2005) (explaining youth are more vulnerable than adults to external pressure); In re Gault, 387 U.S. 1, 45 (1967)

(echoing “[t]his Court has emphasized that admissions and confessions of juveniles require special caution.”); Gallegos v. Colorado, 370 U.S. 49, 54 (1962) (instructing appellate courts to use special care when dealing with a person who is “not equal to the police in knowledge and understanding of the consequences of the questions and answers being recorded . . . unable to know how to protest his own interests or how to get the benefits of his constitutional rights.”);

Johnson v. Trigg, 28 F.3d 639 (7th Cir. 1994) (noting police tactics employed when interrogating an adult may cross the line when used against a child); In re Jerrell C. J., 699 N.W.2d 110 (Wis.

2005) (mandating courts to exercise special caution when assessing voluntariness of juvenile confessions). cxxxi See In re Gault, 387 U.S. 1, 55–56 (1967). See Gallegos v. Colorado, 370 U.S. 49, 53–54

(1962) (detailing the five day interrogation of a fourteen year old boy whose mother was denied

access to him as giving the case an ominous cast); Haley v. Ohio, 332 U.S. 569, 600 (1948)

(urging “[the defendant] need[ed] someone on whom to lean lest the overpowering presence of the law, as he knows it, may not crush him). cxxxii Oral Argument at 5:30, Dassey v. Dittmann, 2017 WL 6154050 (7th Cir. Dec. 8, 2017) (en banc) (No. 16-3397), http://media.ca7.uscourts.gov/sound/2017/rs.16-3397.16-

3397_09_26_2017.mp3 [https://perma.cc/MJ3T-KGWJ]. cxxxiii Oral Argument at 5:50––7:25, Dassey v. Dittmann, 2017 WL 6154050 (7th Cir. Dec. 8,

2017) (en banc) (No. 16-3397), http://media.ca7.uscourts.gov/sound/2017/rs.16-3397.16-

3397_09_26_2017.mp3 [https://perma.cc/MJ3T-KGWJ]. cxxxiv Dassey v. Dittmann, 2017 WL 6154050 at *12 (7th Cir. Dec. 8, 2017) (en banc) (referring to the Supreme Court itself having issued terse final determinations on voluntariness after a recitation of relevant facts (citing Greenwald v. Wisconsin, 390 U.S. 519, 519–21 (1968) (per curiam)). cxxxv Dassey v. Dittmann, 2017 WL 6154050 at *18 (7th Cir. Dec. 8, 2017) (en banc). cxxxvi J.D.B. v. North Carolina, 564 U.S. 261, 283 (2011). cxxxvii Haley v. Ohio, 332 U.S. 569, 599 (1948). cxxxviii Moran v. Burbine, 475 U.S. 412, 426 (1986) (recognizing the Supreme Court identifies the interrogation process is “inherently coercive”). cxxxix Miranda v. Arizona, 384 U.S. 436, 444, 475–476 (1966). cxl Berghius v. Thompkins, 560 U.S. 370 (2010). cxli Berghius v. Thompkins, 560 U.S. 370, 370 (2010). cxlii Commonwealth v. Womack, 929 N.E.2d 943 (Mass. 2010). cxliii Commonwealth v. Womack, 929 N.E.2d 943, 952 (Mass. 2010).

cxliv The Texas Deceptive Trade Practices Consumer Protection Act, TEX. BUS. & COM. CODE

ANN §§ 17.41 et seq. (Vernon 1987 & Supp. 2002) [hereinafter “DTPA”] (outlining requirements for the valid waiver of rights under the DTPA) The Texas Legislature requires:

(a) Any waiver by a consumer of the provisions of this subchapter is contrary to

public policy and is unenforceable and void; provided, however, that a waiver is

valid and enforceable if:

(1) the waiver is in writing and is signed by the consumer;

(2) a defendant in an action or claim under this subchapter pleads and proves:

(1) the consumer is not in a significantly disparate bargaining position;

and

(2) the consumer is represented by legal counsel in seeking or acquiring

the goods or services . . . and

(3) the consumer waives all or part of this subchapter, other than Section

17.555, by an express provision in a written contract signed by both the consumer

and the consumer's legal counsel; and . . . has knowledge and experience . . . to

evaluate the merits and risks of a transaction and that is not in a significantly

disparate bargaining position may by written contract waive the provisions of

this subchapter . . .

(b) A waiver under Subsection (a) is not effective if the consumer's legal counsel

was directly or indirectly identified, suggested, or selected by a defendant or an

agent of the defendant [The existence or absence of a disparate bargaining

position may not be established as a matter of law solely by evidence of the

consumer's financial position relative to other parties to the contract or by matters

contained in a written contract relating to the relative bargaining position of the

parties].

(1) conspicuous and in bold-face type of at least 10 points in size;

(2) identified by the heading “Waiver of Consumer Rights,” or words of

similar meaning; and

(3) in substantially the following form:

“I waive my rights under the Deceptive Trade Practices-Consumer Protection Act,

Section 17.41 et seq., Business & Commerce Code, a law that gives consumers

special rights and protections. After consultation with an attorney of my own

selection, I voluntarily consent to this waiver.”

(Sections (d) and (e) omitted) (emphasis added). cxlv See DTPA, § 17.42(a)(3) (requiring “the consumer [be] represented by legal counsel in seeking or acquiring the goods or services.”). cxlvi See generally DTPA, §§ 17.42 et. seq. (listing the factors necessary for a valid waiver of rights under the DTPA). cxlvii See DTPA, § 17.42(a)(2)(1) (requiring “the consumer is not in a significantly disparate bargaining position.”); DTPA, § 17.42(a)(2)(3) (mandating both parties have “knowledge and experience . . . to evaluate the merits and risks of a transaction and that is not in a significantly disparate bargaining position.”); but see DTPA, § 17.42(b) (explaining “the existence or absence of a disparate bargaining position may not be established . . . solely by evidence of the consumer's financial position relative to other parties to the contract or by matters contained in a written contract relating to the relative bargaining position of the parties.”).

cxlviii See DTPA, § 17.42(a)(2)(3) (requiring both parties have “knowledge and experience . . . to evaluate the merits and risks of a transaction and that is not in a significantly disparate bargaining position.”). cxlix See Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *13 (7th Cir. Dec. 8, 2017) (en banc) (contrasting Brendan Dassey’s lack of experience with police officers to the facts of Fare v. Michael C., 442 U.S. 707, 727 (1979). cl See Erwin v. Smiley, 975 S.W.2d 335, 338 (Tex. 1998) (The validity of the “as is” agreement is determined . . . whether the [waiver] was freely negotiated . . . ). cli See Samuel Gross & Maurice Possley, For 50 Years, You’ve Had “The Right to Remain

Silent”, THE MARSHALL PROJECT (May 12, 2016, 10:00PM), https://www.themarshallproject.org/2016/06/12/for-50-years-you-ve-had-the-right-to-remain- silent [https://perma.cc/84VF-SA67] (“If you’ve ever watched any of the tens of thousands of hours of television devoted to crime dramas, you know the first warning given to suspects who are arrested and questioned. And the second: ‘Anything you say can and will be used against you.’”). clii See Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 162 (Tex. 1995) (stating a waiver was voided when the seller obstructed an inspection for defects in his property and still insist that the buyer waive his rights under the DTPA). cliiiSee DTPA, § 17.50(a)(1) (establishing the elements of a DTPA action for failure to disclose material information and misrepresentations are: (1) The plaintiff is a consumer; (2) The defendant engaged in false, misleading, or deceptive acts; and (3) These acts constituted a producing cause of the consumer's damages); see also Erwin v. Smiley, 975 S.W.2d 335, 338

(Tex. 1998) (affirming the validity of a waiver as being determined in light of “whether there

was a knowing misrepresentation or concealment of known fact” (citing Prudential Ins. Co. of

Am. v. Jefferson Assocs., 896 S.W.2d 156, 162 (Tex. 1995)). cliv See DTPA, § 17.42(a)(2)(3) (requiring both parties have “knowledge and experience . . . to evaluate the merits and risks of a transaction . . . .”); Prudential Ins. Co. of Am. v. Jefferson

Assocs., 896 S.W.2d 156, 163 (Tex. 1995) (“Statement is not fraudulent unless maker knew it was false when made or recklessly made statement without knowledge of truth.”). clv See Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 161 (Tex. 1995) (The seller gives no assurances, express or implied, concerning the value or condition of the thing sold); DTPA § 2.316(c)(1) (“as is” agreement excludes implied warranties in contract covered by

UCC). clvi See Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 163 (Tex. 1995)

(“Statement is not fraudulent unless maker knew it was false when made or recklessly made statement without knowledge of truth.”). clvii See Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 162 (Tex. 1995)

(holding buyer must have the ability to inspect the property before waiving his rights under the

DTPA). clviii See DTPA, § 17.42(a)(2)(2) (requiring the consumer is to be represented by legal counsel in seeking or acquiring the goods or services); DTPA, § 17.42(a)(2)(3) (requiring both the consumer and the consumer’s legal counsel to sign the written contract waiving the consumer’s rights under the DTPA); DTPA, § 17.42(c)(3) (exemplifying a proper written express waiver of rights which includes “After consultation with an attorney of my own selection, I voluntarily consent to this waiver.”).

clix Dassey v. Dittmann, No. 16-3397, 2017 WL 6154050 at *23 (7th Cir. Dec. 8, 2017) (en banc)

(Rovner, Cir. J., dissenting); see THE NAT. REGISTRY OF EXONERATIONS, Detail List, http://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx [https://perma.cc/RW7U-

TD8H] (recording 2,144 exonerations in the United States as of Dec. 20, 2017). clx See generally DTPA, §§ 17.42 et. seq. (listing the factors necessary for a valid waiver of rights under the DTPA). clxi See generally DTPA, §§ 17.42 et. seq. (listing the factors necessary for a valid waiver of rights under the DTPA); Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 163

(Tex. 1995) (“Statement is not fraudulent unless maker knew it was false when made or recklessly made statement without knowledge of truth.”); Erwin v. Smiley, 975 S.W.2d 335, 338

(Tex. 1998) (affirming the validity of a waiver as being determined in light of “whether there was a knowing misrepresentation or concealment of known fact” (citing Prudential Ins. Co. of

Am. v. Jefferson Assocs., 896 S.W.2d 156, 162 (Tex. 1995)). clxii Maine v. Molten, 474 U.S 159, 168 (1985). clxiii United States v. Cronic, 466 U.S. 648, 655 (1984). clxiv See Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (commenting on the probative and damaging nature of confessions). The Court explains: