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Making a Murderer: How YOU Can Protect Yourself

The Single Most Important Lesson From Making a Murderer: How YOU Can Protect Yourself

The world is abuzz with talk of Netflix’s new docuseries “Making a Murderer”, which chronicles the investigation and murder trial of Manitowic County resident Steven Avery and his nephew, Brenden Dassey. Even Anonymous, the international hacktivist organization has gotten involved, threatening to release confidential emails between investigators and former District Attorney Ken Kratz. The series reviews the evidence and viewers are left believing that two men were wrongfully convicted and sentenced to terms of life imprisonment for crimes they did not commit. The conviction of one of these men, Brendan Dassey, would have been impossible had he done one simple thing- exercised his right to remain silent.

Each and everyone of us, children and adults, citizens and non-citizens, is given an enormous protection by both the United States and California Constitutions. The Fifth Amendment states we have a right against “self-incrimination”. What this means, simply, is that:

  • We do not have to talk to the police.
  • We do not have to answer questions.
  • We do not have to provide alibis.
  • We do not have to explain other people’s actions.
  • We do not have to submit to lie detector tests.
  • We do not have to explain inconsistencies.
  • We do not have to make officers understand.
  • We do not have to “tell our side”.

As an Orange County criminal defense attorney, I routinely tell people that when confronted by a police officer they should simply say “Please don’t ask me any questions. I want my lawyer.” And the question I’m almost always asked in response is “Won’t that make me look guilty?” Maybe the officer will think you’re guilty, but if you are firm in stating that you do not want to talk and that you want an attorney instead, you have officially invoked your Miranda rights and the prosecution cannot comment on this silence at trial, nor use it against you.

On the other hand, if you think you can explain a matter and want to to talk because you have nothing to hide, you may just be opening a can of worms. Imagine an officer knocking on your door. He asks “Do you know why I’m here?” If you say “Yes”, that could be read as an admission of guilt in a later police report. If you say “No”, that could be read as a failure to take responsibility. You can’t win. And you’re not supposed to.

Having defended thousands of criminal cases in Orange County, California, I would estimate that at least 75% of convictions are based on the accused’s own statements. The most compelling piece of evidence in a trial is typically a confession, even when the accused had no idea that his words would be considered a “confession” or an “admission”. Officers are trained interrogators- they know how to get answers to questions they want. They are trained to ask questions in a way that lead you to believe they’re only there to help you. Questions may start off benign, but once a rapport is established, a dynamic often develops where the accused doesn’t want to disappoint his examiner. (Often the friendlier the conversation, the more damning the statements made.)

Officers are also trained in “spinning” statements. In Manitowic they issued a press release stating that Brendan Dassey confessed to brutally raping and mutilating Teresa Halbach with gory detail only he would know.  Videotape of that confession, however, reveals that after hours and hours of insisting he didn’t know anything, Brendan Dassey eventually started saying “yes” to elaborate accusations by officers. They constructed the story; he didn’t resist. And much of that story was later proven impossible by forensic evidence. The story got written up as Branden’s “detailed” confession, however, and that confession is why Branden Dassey may never be released from prison.

The entire Avery, Dassey and Tadych families should have invoked their rights to remain silent from the very outset of this case- at the first attempted questioning of any family member, let alone after Theresa Halbach’s remains and car were found. With virtually no other evidence upon which to convict Branden Dassey, the family might only have suffered one wrongful conviction this time around.

If you or a loved one need advice about the criminal justice system, call Orange County criminal lawyer Staycie R. Sena at (949) 477-8088 for a consultation today.

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