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Beyond guilt or innocence: ‘Making a Murderer’ raises big questions

| Feb 18, 2016 | Criminal Defense

The vast majority of criminal trials take place in obscurity, and most don’t receive much media attention outside the cities in which they take place. But when a case enters the national mainstream, as occurred with the Steven Avery case in the recent Netflix series “Making a Murderer,” the reverberations can extend beyond water-cooler conversation and armchair adjudication. The effects, for better or worse, may begin to alter the public’s perception of the entire legal process — and sometimes even the process itself.

Adding complexity to the jury selection process

Criminal defendants in the United States have a constitutional right to be tried by an impartial jury. However, assembling an impartial jury is no simple task. It requires the attorneys on both sides of a case to avoid making pretrial comments to the media that runs the risk of contaminating a pool of potential jurors. It also requires the attorneys and court to participate in an involved process of screening potential jurors for biases that could interfere with their ability to remain objective during the trial.

In the legal community, this process of screening and selecting jurors is known as voir dire. In the aftermath of “Making a Murderer,” the voir dire process may become even more challenging due to the show’s widespread popularity and its tendency to generate strong emotions and opinions among viewers. In particular, prosecutors may be more skeptical of potential jurors who have seen the series since they may view it as a sign of pro-defendant bias. But, if judges are fair, they should decline to strike jurors for cause merely because they have viewed the documentary. The same standard should be used on jurors who may come into the voir dire process with some partiality for the defense as courts have long applied when (more commonly) pro-prosecution jurors are present in the pool.

Challenging our assumptions about confessions

Another shift we could end up seeing as a result of the series is greater awareness around the issue of false and coerced confessions. Often, in the minds of people who have never experienced or witnessed a police interrogation, there is an assumption that a confession is irrefutable proof of guilt. However, that is far from the truth; according to the National Registry of Exonerations, 27 of the 58 people exonerated for homicide in 2015 had been convicted based on false confessions.

Whether or not you believe that Brendan Dassey was involved in the murder of Teresa Halbach, it is hard to ignore the procedural red flags that arose during his interrogation. The footage from those interrogations provides a rare public glimpse into the kinds of circumstances in which a criminal suspect might offer a false confession — particularly if he or she is young, mentally challenged or for other reasons unaware of the larger implications of what is taking place. Too often, especially to young people and other vulnerable individuals, it can seem like the only way out of the impossible situation is to tell the investigators what they want to hear and try to sort it out later.

Looking beyond the CSI effect

If “Making a Murderer” does end up having long-lasting repercussions in the criminal justice system, which it appears that it may, it would not be the first time that a television series has influenced the American legal landscape. A similar phenomenon surfaced about a decade ago with the so-called “CSI effect,” which was based on concerns that the show’s exaggerated reliance on forensic evidence was creating unrealistic expectations among potential jurors about the availability of such evidence. “Making a Murderer,” on the other hand, reminds viewers that even when forensic evidence does exist, it should not be treated as infallible proof of guilt.

Even more important, perhaps, are the questions that the show raises about the foundations of our criminal justice system itself. Specifically, what does it mean to have a fair trial? Does the system truly deliver on its promise that each that defendant — no matter how unpopular or disadvantaged — is presumed innocent until proven guilty? Or is it willing to look the other way in certain cases to achieve what appears on its face to be the right outcome?

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