The Right Against Self-Incrimination (new Constitution Minute)

“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” Anyone who watches TV in America can recite these words in their sleep.  But what they actually mean in practice can surprise you.

Take the highly publicized case of Brendan Dassey who was convicted of murder and other offenses based on a confession he made when he was 16.  His story was made into a miniseries on Netflix.   His lawyers argued that Brendan is intellectually challenged and susceptible to suggestion.  Brendan has a low IQ and tests in the 7th percentile.  They say detectives spoon-fed him answers that were incriminating and consistent with the evidence, which Brendan then adopted.  No lawyer or parent was present.  The session was recorded and one report said he appeared to be unaware of the gravity of his situation. A judge would later write, “What occurred here was the interrogation of an intellectually impaired juvenile.... Dassey was subjected to myriad psychologically coercive techniques....”  One of those techniques was detectives repeatedly saying they already knew what had happened. This judge called Dassey’s conviction “a profound miscarriage of justice.”

Was this a voluntary and truthful confession, or was it coerced?  The Supreme Court acted on the case earlier this year, but before turning to that, let’s first look at the Constitution and the history of the right against self-incrimination.

The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself....”  The right against self-incrimination applies in state criminal cases through what is called the incorporation doctrine. [Chemerinsky, Constitutional Law (4th ed.), p. 516]

The history of compulsory self-incrimination goes back at least as far as the Spanish Inquisition. It was used in England for 400 years after the Magna Carta.  [The Making of America, pp. 705-06]  The English Star Chamber used torture to obtain confessions. In 16th and 17th century England, anyone refusing to swear their innocence was considered guilty.  Suspected Puritans were pressured to take the oath and reveal the names of other Puritans.  The Puritans began to resist the interrogations and brought the idea of a right against self-incrimination with them when they fled to the New World, where the right ended up in our Constitution. 

Back to Brendan Dassey and the question of whether his confession was voluntary, a panel of the 7th Circuit Court of Appeals overturned his conviction in June of 2017, but the full court reinstated it in December of that year.   The Supreme Court turned down the case in June of this year, declining to hear it.

In arguing for that result, the state of Wisconsin asserted that the confession was voluntary and properly obtained.  The detectives were sympathetic and encouraged Dassey to be truthful.  Another judge along the way wrote:

• Dassey spoke with the interrogators freely, after receiving and understanding Miranda warnings, and with his mother’s consent.... The interrogation took place in a comfortable setting, without any physical coercion or intimidation, without even raised voices, and over a relatively brief time. Dassey provided many of the most damning details himself in response to open-ended questions.

Dassey was convicted of first-degree intentional homicide, second-degree sexual assault and mutilation of a corpse.  He was sentenced to life in prison and won’t be eligible for parole until 2048.  He still has supporters, though, who hope to spring him before then.

One final note: Tomorrow is Constitution Day. Celebrate the fact we have a Constitution that prevents tyranny and protects our rights, like our right against self-incrimination.  Sure, there are tough cases where it’s hard to decide whether a confession is voluntary or coerced but, still, having the right sure beats being tortured in the Star Chamber, doesn’t it?