A nationwide practice focusing on representing people with mental disabilities.
Mental Disability and the Risks of False Confessions
The highly publicized case of Brendan Dassey from the Netflix documentary Making a Murderer , brought to light the very real concern of false confessions. In 2006, Dassey, a 17-year old with an intellectual/developmental disability (I/DD), confessed to the murder of Teresa Halbach. Dassey, along with his uncle Steven Avery, was convicted of the murder in 2007 based in part on his confession which was taken after hours of interrogation without a parent or an attorney present. Dassey’s conviction was at one point overturned on the basis that his confession was coerced, but the conviction was later upheld on rehearing. Most recently, the U.S. Supreme Court declined to hear the case and his conviction stands.

According to the National Registry of Exonerations , 23% of overturned homicide cases involved a false confession. As of 2018, 280 people have had their convictions overturned based, at least in part, on false confessions. Cases such as that of Henry Lee McCollum , a 19-year old with I/DD, who falsely confessed to the rape and murder of a child under intense police interrogation, demonstrate that people with I/DD and mental illness are uniquely susceptible to false confessions.

How Interrogations Work

The following excerpt is taken from a chapter titled “False Confessions” written by Professors William C. Follette, Richard A. Leo, and Deborah Davis from the book Representing People with Mental Disabilities: A Practical Guide for Criminal Defense Lawyers, edited by Elizabeth Kelley, which will be published this fall by the American Bar Association:

The first goal of an interrogator is to question the suspect freely. To accomplish this and other goals, it is best not to raise resistance in the suspect to being questioned or to the interrogator. The interrogator may attempt to question the suspect, while not informing him or her that or she is suspected of the crime. Sometimes police ask people to come in for an interview to ‘help them’ with the investigation, but with no clarification about whether the person is actually a suspect or merely someone providing ‘helpful’ information this strategy also helps avoid the necessity of administering Miranda warnings that might make clear one’s status as a suspect and raise unwanted resistance. These are only required if the suspect is under arrest or would reasonably not feel free to refuse questioning. In many cases an interrogator can successfully proceed from the seemingly friendly ‘helping with the investigation’ phase of questioning into a long accusatory interrogation that results in a confession before Miranda rights are brought up.

Inability to Tolerate Distressing Situations

Police interrogation is designed to increase anxiety over time, especially if someone is not confessing as the interrogator is seeking. It can be especially distressing when there is a lack of sleep or opportunities to eat or use the bathroom. In order to manage the distress, one must have the ability to regulate emotions. This is something that many people with I/DD and mental illness find challenging.

People with I/DD may not have the capacity to understand that what they do now can impact what happens to them in the future. For this reason, some people with I/DD may confess because if they do so the grueling interrogation will end. They also may be told by police that they can go home if they confess. Police are trained to question people tirelessly over several hours to “break them down.” People with I/DD may not be equipped to handle such intense scrutiny. People with mental illness face similar intolerance to distressing situations and often confess in order to end the interrogation.

Desire to Please Authority Figures

We are taught that police officers are authority figures, and many people with I/DD and mental illness may not know that the police aren’t always on their side. During an interrogation, a police officer may act as though he or she just wants to help the person and that they need to tell the police officer what her she wants to hear. People with I/DD may also have problems detecting when a police officer is being deceptive and not truthful. They may even be susceptible to being convinced that they did indeed commit the crime in question.

Lack of Understanding of Their Rights

In addition, some people with I/DD and mental illness lack the capacity to understand their constitutional rights. They may have been advised by police that they have the right to an attorney but, because they didn’t do anything, they may feel that an attorney is unnecessary. If they are only being questioned and haven’t been placed under arrest, the police would not be required to inform the person of their right to any attorney. Even if they are read their Miranda warnings, the person with I/DD may simply agree that they understand in order to avoid a stressful situation.

Contact an Experienced Criminal Defense Attorney 

If you or a loved one with an intellectual or developmental disability has been arrested or convicted of a crime, you need an experienced criminal defense attorney on your side. Elizabeth Kelley specializes in representing individuals with mental illnesses and intellectual and developmental disabilities. To schedule a consultation call (509) 991-7058.
Elizabeth Kelley
Criminal Defense Attorney
Elizabeth Kelley is a criminal defense lawyer with a nationwide practice specializing in representing people with mental disabilities. She is the co-chair of The Arc's National Center for Criminal Justice and Disability, has served three terms on the board of the National Association of Criminal Defense Lawyers, and serves on the board of the American Bar Association's Criminal Justice Section Magazine.  Learn more .
Representing People with Mental Disabilities
Representing People with Mental Disabilities: A Practical Guide for Criminal Defense Lawyers , edited by Elizabeth Kelley is scheduled to be published this fall by The American Bar Association. It contains chapters devoted to a variety of issues confronted by people with mental disabilities in the criminal justice system such as Competency, Sanity, Malingering, Neuroscience, Jail and Prison Conditions, Working with Experts,and Risk Assessment. Chapters are written by academics, mental health experts, and criminal defense lawyers. In the Introduction, Elizabeth writes that "This is the resource I wish I had had many years ago."
Blog Talk| Race to Judgement
Interview by Elizabeth of The Hon. Frederic Block, EDNY, about his legal thriller, Race to Judgement . David Lat, founder of AboveTheLaw.com and author of Supreme Ambitions writes that "Judge Block's Race to Judgment is a gripping page-turner with the added virtue of realism. I devoured it in a weekend, and I suspect that you will do the same." Listen Now
Steve Drizin Receives Robert Perske Award
Elizabeth Kelley presenting Steve Drizin the Robert Perske Award for his tireless and groundbreaking advocacy on behalf of people with intellectual and developmental disabilities.