When Involuntary Becomes Voluntary: The Uncertainty of Protection Against Involuntary Confessions

Photo Credit: https://www.johntumeltycriminaldefense.com/blog/confession-offers-leniency/involuntary-confession/

Written by: Alexandria Heard

Associate Student Materials Editor, American Journal of Trial Advocacy

            The story behind Dassey v. Dittmann is no secret to the American people. In the widely popular Netflix series, Making a Murderer, the producers delve into the life of Brendan Dassey and the untimely murder of Teresa Halbach. The following facts are as depicted by the United States Court of Appeals for the Seventh Circuit after a long, arduous procedural history in relation to Petitioner Dassey’s videotaped confession to participating in the rape, murder, and mutilation of Halbach.[1] In 2005, Halbach’s blood-stained car and then her charred remains were found on the property of Avery’s Auto Salvage, which is owned by Dassey’s uncle, Steven Avery.[2] The police began to investigate and interviewed several family members of Avery including a one-hour long interview with the then sixteen-year-old Dassey, which proved to be fruitless.[3] Months after the initial interview, the police received information that Dassey’s mental and physical health was deteriorating, and Dassey was brought in for additional interviews.[4] It is important to note that the court stated that during these interviews Dassey was not in custody.[5] During this set of interviews, Dassey confessed to going to Avery’s for a bonfire and seeing human remains in the fire but not telling the police because Avery threatened him.[6]

            The third and final set of interviews took place over three hours.[7] During this interview, Dassey’s story took a dramatic turn to a disturbing depiction of his involvement in the murder of Halback.[8] This is the point in this tragic case that resulted in numerous appeals concerning the admissibility of Dassey’s confession because of the disconcerting fact that Dassey’s version of the major details and sequence of events changed multiple times.[9] The court stated that “[t]his portion of the interrogation provides the most support for Dassey’s claim that his confession was both involuntary and unreliable.”[10] The court provided the following factors that would support that Dassey’s confession was involuntary: “his youth, his limited intellectual ability, some suggestions by the interrogators, their broad assurances to a vulnerable suspect that honesty would produce leniency.”[11]

            Dassey was eventually convicted of “first-degree intentional homicide, second-degree sexual assault, and mutilation of a corpse.”[12] Following several years of litigation, Dassey filed a writ of habeas corpus.[13] In part, the writ questioned whether “Dassey’s confession was voluntary or not.”[14] Ultimately, the court determined that after weighing the factors, Dassey’s confession was voluntary.[15] Despite the concessions on the part of the court, it still reversed the district court’s grant of Dassey’s habeas relief and remanded the case to the district court with the instructions to dismiss the petition.[16]

The Test

The Supreme Court held that the Self-Incrimination Clause of the Fifth Amendment[17] bars involuntary confessions to be introduced in federal cases.[18] In 1964 the Self-Incrimination Clause was extended to apply to state cases as well.[19] For the court to determine that a confession is involuntary, it must find that there was some kind of coercive conduct on the part of the police.[20] It is important to note that this includes psychological coercion, not just physical coercion.[21] The test used to determine whether Dassey’s confession was voluntary was a totality of the circumstances test.[22] This analysis is very subjective.[23] The United States Court of Appeals for the Seventh Circuit pointed out that the weight given to each factor considered in a totality of the circumstances test could vary between different courts and jurists.[24] As noted in a University of Chicago Law Review article, “Because the totality-of-the-circumstances test permits the courts to weigh several factors together, it is not always possible to determine which factors caused a court to exclude or admit a confession, and courts rarely indicate the relative importance of the factors that they use.”[25]

There is not a bright line of what makes a confession involuntary. However, there are a plethora of examples of factors that by themselves do not make a confession involuntary. For example, the United States Court of Appeals for the Fifth Circuit claimed that “mere trickery alone will not necessarily invalidate a confession.”[26] There are even cases where police misrepresented evidence, and the confessions based on those misrepresentation were considered voluntary.[27] It has also been decided that threats alone are not enough to conclude that a confession was not given voluntarily.[28] It seems that police officers have much leeway in what the officer can do to extract a confession from a suspect.[29] Additional factors that can be weighed are the time and duration of an interrogation and a defendant’s age, health, and I.Q.[30]

Similarly, what makes a confession involuntary is also not certain and is evaluated on a case-by-case fact specific basis. For example, a suspect’s confession was deemed involuntary after police exploited her religious beliefs, never offered her food, and continued the interrogation after the suspect expressed that her head was “swimming.”[31] In a Florida case, the court weighed a multitude of factors, such as whether psychological coercion was used by police officers and whether police officers made promises of benefits to the subject in order to extract a confession from her.[32]


It really seems to be a toss-up as to what will make a confession involuntary. Essentially there is no clearly defined test. The courts have not provided much clarity as it is a very factually specific test. The courts have not provided attorneys with a clearly defined test that they can reasonably rely upon. There are a seemingly endless number of factors that a court can consider. Those factors the court actually considers are determined on a case-by-case basis due to how factually specific the determination must be. There is no ready-to-use formula or multi-step test available to determine the voluntariness of a suspect’s confession. There is a high probability that in another jurisdiction Brendan Dassey’s confession would have been considered involuntary and inadmissible in court. The devil is in the details. So, the bottom line is, you just have to have more factors on your side than your opposing counsel does.

[1] Id. at 300.

[2] Id. at 305 – 06.

[3] Id. at 306.

[4] Id.

[5] Id.

[6] Dassey, 877 F.3d at 306.

[7] Id.

[8] Id. at 307.

[9] Id. at 307 – 08.

[10] Dassey, 877 F.3d. at 308.

[11] Id. at 301.

[12] State v. Dassey, No. 2010AP3105-CR, 2013 WL 335923, at *1 (Wis. Ct. App. Jan. 30, 2013).

[13] See Dassey v. Dittmann, 201 F. Supp. 3d 963 (E.D. Wis. 2016) (granting habeas corpus).

[14] Dassey, 877 F.3d. at 301.

[15] Id.

[16] Id. at 318.

[17] U.S. Const. amend. V.

[18] Withrow v. Williams, 507 U.S. 680, 688 (1993).

[19] Id.

[20] State v. Sawyer, 561 So. 2d 278, 281 (Fla. Dist. Ct. App. 1990).

[21] Id.

[22] Dassey, 877 F.3d at 301.

[23] In re S.W., 124 A.3d 89, 101 (D.C. 2015).

[24] Etherly v. Davis, 619 F.3d 654, 662 (7th Cir. 2010).

[25] Morgan Cloud, et at., Words without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495, 528 (2002).

[26] United States v. Bell, 367 F.3d 452, 461 (5th Cir. 2004).

[27] See United States v. Orso, 266 F.3d 1030, 1039 (9th Cir. 2001); State v. Register, 476 S.E.2d 153, 158 (S.C. 1996).

[28] State v. Tuttle, 650 N.W.2d 20, 35 (S.D. 2002) (“[I]t is not enough to show that threats were made to induce a confession. It must also be shown in the totality of circumstances that the suspect’s will was overborne and that the overreaching police conduct was causally related to the confession.”).

[29] See United States v. Rutledge, 900 F.2d 1127, 1130 (7th Cir. 1990) (“The police are allowed to play on a suspect’s ignorance, his anxieties, his fears, and his uncertainties; they just are not allowed to magnify those fears, uncertainties, and so forth to the point where rational decision becomes impossible.”).

[30] See Haley v. Ohio, 332 U.S. 596, 599 – 600 (1948) (age); Moore v. Dugger, 856 F.2d 129, 131 – 32 (11th Cir. 1988) (I.Q.); State v. Vincik, 398 N.W.2d 788, 792 (Iowa 1978) (health).

[31] State v. Marshall, 642 N.W.2d 48, 55 – 6 (Minn. Ct. App. 2002).

[32] Sawyer, 561 So. 2d at 281.

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