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THE DOCUMENTARY MAKING A MURDERER REMINDS US THAT YOU HAVE THE RIGHT TO AN ATTORNEY DURING A POLICE INTERVIEW.

 

The Netflix surprise hit over the recent holiday season was the documentary Making a Murderer. The story this documentary told was so engrossing that many people reported finishing all ten one-hour episodes within a day or two. Now that’s binge watching!

What compelled so many to devour this docu-series is that it followed the true crime saga of Steven Avery, a Wisconsin man who was exonerated of a rape he was convicted of committing and for which he spent 18 years in prison only to find himself back before the court a couple of years later convicted of a murder that he, to this day, insists he did not commit. Making a Murderer follows the murder trial and ultimately Mr. Avery’s conviction. What has gripped the nation is the questionable tactics used by law enforcement and the dubious evidence they presented in order to get a conviction – and from the documentary’s point of view – a conviction no matter what it took.

One key piece of evidence the prosecution used against Mr. Avery was the confession of his then 16-year-old intellectually challenged nephew. The detectives interviewed the nephew alone, no parent or attorney was present. The documentary shows extensive video clips from the nephew’s “interview” (read: interrogation). There is no question after viewing these clips that the nephew, unaware of his precarious situation, was manipulated and coerced into eventually “confessing” that he took part in the murder. Without divulging more, this is only one piece of evidence in a series of disturbing and suspicious facts presented by the prosecution. Watching the police “interview” of the nephew has opened up a firestorm of outrage and questions. Was this legal? Can the police interview a juvenile without any parent or attorney present? Is a police interview that results in a coerced confession legal?

In California, it is legal to interview (interrogate) a juvenile without a parent or attorney present. There is no constitutional right that a parent must be present and even if the juvenile asks for his or her parent, the law does not require that the interview cease until a parent is present. As in any police interview/interrogation, whether of an adult or a minor, the interrogation must be voluntary.

The voluntariness of a police interrogation is a murky area, especially when the subject of the questions is a juvenile. Minors, who are still under the supervision of authorities (parents and school), are more likely to answer as the authority (police) suggests and do not always have enough understanding to avoid being manipulated into admissions that aren’t actually true.   While the age of the subject may be considered in the context of a confession, the legal standards for what constitutes a voluntary confessions is no different than it is for adults. And those standards are very generous indeed. Broadly speaking, if the police didn’t beat or torture the confession out of a suspect, it is usually considered voluntary. The deceptive and manipulative tactics depicted in Making a Murderer are completely legal.

There is a lesson here. The interrogation of Mr. Avery’s nephew is a very public demonstration of something that occurs on a regular basis. Anyone, adult or juvenile, has the constitutional right to refuse to participate in a police interview without the presence of an attorney. It is common that, as was the case with Mr. Avery’s nephew, the subject of the interview cooperates without an attorney present thinking they did nothing wrong only to find him or herself manipulated into confessing to a crime he or she did not commit. Believe me; it happens more often than you think! If you ever find yourself being questioned about a crime by the police, you should request the presence of an experienced criminal defense attorney before you answer any police questions (beyond your name, date of birth, and address). Remain silent until an attorney is there to represent you. This is wise advice even if you believe you did nothing wrong.