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This analysis of Brendan Dassey’s confession serves to demonstrate the difficulty in assessing the voluntariness of confessions. It is a fairly complicated and contextualized area of the law as “findings of fact are best made by trial judges who deal with such questions on a daily basis. They are in the best position to draw conclusions from the evidence both because of this expertise and because of their privileged position in assessing the evidence as a whole.”i In other words, confessions are very situation- specific. It is difficult to create hard and fast rules for all circumstances, as one is unlike another. While I will provide the law and my own analysis, your opinion may differ entirely. The subjective nature of this inquiry is likely a contributing factor to Brendan’s inability to appeal his conviction.

The Youth Criminal Justice Act

At the time of Teresa’s death, Brendan Dassey was 16 years old, a minor. While he was sentenced to life as an adult, his statement would still be handled in light of the fact that he was a child according to the law. In R. v. J.(J.T.) the Supreme Court commented that “it may seem unnecessary and frustrating to the police and society that a smug [17 year old] should receive the benefit of [the YCJA]… it must be remembered that the section is to protect all young people of 17 years or less.”ii

The court went on to note that “a young person is usually far more easily impressed and influenced by authoritarian figures… [I]t is unlikely that they will appreciate … the consequences of oral statements [or] appreciate the nature of their rights to the same extent as would most adults. Teenagers may also be more susceptible to subtle threats arising from their surroundings and the presence of persons in authority. A young person may be more inclined to make a statement, even though it is false, in order to please an authoritarian figure. It was no doubt in recognition of the additional pressures and problems faced by young people that led Parliament to enact this code of procedure.”

The procedure mentioned by the Supreme Court is found under s146 of the YCJA. It dictates that no oral or written statement made by a young person is admissible against the young person unless:

(a) The statement was voluntary;

(b) The person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that

i. the young person is under no obligation to make a statement,
ii. any statement may be used as evidence in proceedings against him or her,
iii. the young person has the right to consult counsel or a parent,
iv. any statement made by the young person is required to be made in the presence of counsel and any other person consulted
unless the young person desires otherwise;

The legislation also states that when a waiver of these rights is not made in accordance with the requirements owing to a technical irregularity, the youth justice court may determine that the waiver is valid if it is satisfied that the young person was informed of his or her rights, and voluntarily waived them.iii

Here, we will begin with the list of requirement of s146 (b). Brendan was read his Miranda rights in their entirety and in compliance with the Charter of Rights and Freedoms. iv Those rights include that he was under no obligation to make a statement, that if he did it would be used against him and that he had the right to have a lawyer present. He signed a document stating that he understood those rights and continued with the interview regardless. The section provides discretion to the judge to find that sufficient compliance has occurred even if there are technical irregularities. Obviously, in Brendan’s case there were technical issues, including the fact that the confession was solicited and orchestrated by his lawyer Len Kachinsky, for which he was later removed from the case.

There is certainly cause for debate whether Brendan understood his waiver, or his right to have a lawyer present. Without his statements it would have been much more difficult to reach the burden of proof necessary to obtain a finding of guilt. Had Brendan been told that he should not speak to police, he may not be in jail.

In viewing this confession, a court can take note that Brendan not only signed his waiver but also revealed that he felt bad about his actions, had planned them for several days and believed “that I should get a few years in jail.”v Furthermore, he had spoken with police regarding the matter several times previously.

In an objective sense, the police officers read Brendan his rights and he waived them. This was a young man confessing to the rape and murder of a woman. A judge would have grounds to state that s146 (b) had been materially complied with based on the video and transcript of his confession on May 13th.

Subjectively, Brendan was a child. His IQ is near 70; his lawyer encouraged him to confess and he has a propensity to answer “yeah” to all statements unless otherwise challenged. It is arguable that he did not provide full consent, nor would he have consented with proper advice. There was little effort to provide additional security to Brendan as a minor without counsel present. The rights he was read are the same as those provided to an adult. One could argue that he was provided no additional protection provided under s146 (b).

Even if there was compliance with s146 (b) there remains s146 (a) which states that a confession must be voluntary. To establish ‘voluntariness’ in a confession we must look outside the YCJA and consider how the Supreme Court has defined the word.

The Common Law Rule on Confessions

Voluntariness can be a difficult concept to legally define, especially in the face of a spoken and taped confession. Each statement is unique; therefore, the debate has reached the Supreme Court

several times. In spite of the subjective nature of this analysis, the court has been able to establish a formal rule defining the concept of voluntariness.

When analysing Brendan Dassey’s confession the judge must ask 4 questions:

  1. Was the confession induced by threat or promise?
  2. Did an atmosphere of oppression compel the suspect to speak to bring the ordeal to an end?
  3. Did the suspect lack an ‘operating mind’?
  4. Did the police use ‘trickery’?viHere, the judge should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule.vii

Threats or Promises

An important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.viii Officers Wiegert and Fassbender never offered a lighter sentence or freedom. They made no positive inducements to obtain a confession from Brendan. In R v Spencer, the court considered whether there was an inducement when police officers offered not to interrogate Spencer’s girlfriend in exchange for a confession.ix Here, Brendan received no offers or deals.

However, it is arguable that threats were made. Several times both officers threatened to tell Brendan’s mother that he was lying when he did not provide the answers they sought. In one instance Wiegert stated:

“…Your mom told me you’d be honest with me. Don’t let your mom down. You have an opportunity here to do one last thing for Teresa. And that’s by coming clean on this. And your mom told me that you would and I haven’t called her yet to tell her that you lied to me, but if I will do that, what do you think she’s gonna say to you? She’s gonna be mad.”x

It may seem odd that Brendan would be more worried about a call to his mother than the prospect of prison for murder and sexual assault. The fact that Wiegert sensed the power of this suggestion demonstrates awareness that Brendan may not have comprehended the full significance of his situation.

In R v Oickle, the majority found that the police were within their power to inform the accused that they would need to interrogate his fiancée if a confession were not forth coming. They found there was not a causal connection between the “threats” and the accused statements. However, Justice Arbour, in the minority, argued that “the relationship between [the fiancée] and the accused was such that the threats to implicate her placed impermissible pressure on the accused to confess.”xi

Here, there were no explicit threats against Brendan’s mother; there was just the threat of “telling her”, which distinguishes the case from Oickle. Furthermore, Brendan had already confessed before such statements were made, in fact, he did so immediately after the interrogation began.

It does not appear as if Brendan spoke out of regard to an inducement or threat. However, the police officers’ words suggest an opportunistic manipulation of Brendan’s low IQ. A judge may not be incorrect to assume, in a manner similar to Justice Arbour, that the nature of his relationship with his mother may induce a confession. One could make the argument that Brendan envisioned a quid pro quo deal in which a false confession could spare him the embarrassment of a police officer telling his mother he was a liar.

As always, the analysis here is subjective and in the hands of the judge. No explicit threats or promises directly induced Brendan’s words; however, his individual circumstances may have lent greater power to the officers’ words.

Oppression

“In assessing oppression, courts should consider whether a suspect was deprived of food, clothing, water, sleep, or medical attention; was denied access to counsel; was confronted with fabricated evidence; or was questioned aggressively for a prolonged period of time.”xii The court provided an example of oppression from R v Hoilett where an intoxicated man was left naked in his cell until he was awoken for interrogation at 3am. The court found that he confessed in the hope of receiving clothing and tissue to blow his nose.xiii

Here, the interview was not overly long; Brendan was not deprived of sleep or clothing. He was offered water several times and whenever he stopped cooperating the officers suggested that the interview should end. There are many grey areas in Brendan’s confession; however, there is no suggestion that the officers oppressed Brendan.

Operating Mind

This component is not onerous. It merely requires that “the accused knows what he is saying and that it may be used to his detriment.”xiv The court, in R v Whittle, commented on its low threshold: “indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test
is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest.”xv

Brendan agreed to waive his rights, he recognized that his confession could warrant jail time and he provided a consistent narrative regarding Teresa’s death. He possessed an operating mind despite his low intelligence and childlike manner.

Trickery

Trickery occurs when “the authorities [do or say] anything that could induce the accused to make a statement which was or might be untrue… What should be repressed vigorously is conduct on their part that shocks the community.”xvi

Unlike the operating mind, this test is of a very high threshold and requires more than a police officer’s bluff. While the police officers consistently pressured Brendan they never obscured their identities or intentions. Lamer J provided several examples of trickery including “a police officer pretending to be a chaplain or a legal aid lawyer, or injecting truth serum into a diabetic under the pretense that it was insulin.”xvii

Brendan may have been induced by threats, he may not have comprehended the significance of his circumstances and he may not have had the requisite intelligence to remain silent. ‘Making a Murderer’ also raises the possibility that the entire crime was a ruse or a frame job. But in that room on May 13th there was no diabetic truth serum. For the purpose of the voluntariness test there was no police trickery.

Was Brendan’s Confession Voluntary?

We now have enough legal knowledge to consider the question, ‘was Brendan’s confession voluntary?’ We’ve raised the possibility that a quid pro quo offer was made relying on Brendan’s childlike level of intelligence. We’ve excluded the presence of oppression and trickery and established an operating mind.

If you believe that Brendan was offering a story (or the truth) to the police in order to avoid trouble from his mother, much like a child would, perhaps the confession was involuntary. If that is the case it may be excluded as an involuntary confession. However, if you believe Brendan preferred not to discuss the murder of Teresa Halbach with his mother, choosing instead to reduce his feelings of guilt by confessing his sins to the officers, then maybe his confession was voluntary.

What do you think?

This analysis of the Brendan Dassey case will hopefully provide you with two takeaways. One would be the complexity of assessing the admissibility of Brendan’s confession, and two, the danger that goes into not exercising your right to silence. Given the circumstantial nature of the evidence against Brendan, he may not be in jail but for his confession.

Whether or not you believe Brendan’s confession should have been admitted, we can all agree from a legal defence standpoint it should never have been made in the first place.

 


FOOTNOTES

i R. v. Spencer, [2007] 1 SCR 500, 2007 SCC 11 (CanLII) [Spencer].
ii R. v. J.(J.T.), [1990] 2 S.C.R. 755.
iii S146 Youth Criminal Justice Act (2002).
iv While the right not to incriminate oneself and the right to silence originate in the common law, as principles of fundamental justice they have acquired constitutional status under s. 7 of the Charter (the right to life liberty add security of the person). By providing Brendan Dassey with his caution the officers’ were effectively compliant with the Charter.
v Transcript 05/13/06, http://convolutedbrian.com.s3.amazonaws.com/dassey/13May2006/13May06Transcript.pdf [Transcript]. vi R. v. Oickle, [2000] 2 SCR 3, 2000 SCC 38 (CanLII) [Oickle].
vii Ibid.
viii Ibid.
ix Spencer, supra note i.
x Transcript, supra note v.
xi Oickle, supra note vii.
xii Ibid
xiii R. v. Hoilett (1999), 136 C.C.C. (3d) 449.
xiv Oickle, supra note vii.
xv R. v. Whittle, [1994] 2 SCR 914, 1994 CanLII 55 (SCC).
xvi Rothman v. The Queen, [1981] 1 SCR 640, 1981 CanLII 23 (SCC).
xvii Ibid.