Making evidence and the art of uncertainty

Evidence is a process. Not so according to legal realism, but perhaps a little more so according to legal superrealist accounts of the legal arts. 

In 2009, the US National Academy of Sciences released its report into forensic sciences and their use in court cases. After citing the high number of exonerations subsequent to changes in DNA testing, it notes:

no forensic method other than nuclear DNA [nDNA] analysis has been rigorously shown to have the capacity to consistently and with a high degree of certainty support conclusions about “individualization” (more commonly known as “matching” of an unknown item of evidence to a specific known source).

The report as a whole paints a sorry picture of forensic practices when held to the Daubert ruling of a decade prior: untested procedures, the absence of specified and standardised statistical error rates, patchwork protocols and the relative immunity of forensics from Popperian norms of scientific disputability and consensus. Instead, there are a collection of practices which are the “handmaidens of the legal system, and … have no significant uses beyond law enforcement.” Voice identification and bite mark analysis are grounded in interpretive methods whose techniques are untested but nevertheless routinely tendered, print biometric software is far from interoperable and printing techniques can modify ridges, the “fundamental assumptions of uniqueness and reproducibility of firearms-related toolmarks has not yet been fully demonstrated,” and so on and so on. Almost a century since Frye (1923), it would be safe to say that the physical evidence wrought from a range of techniques (other than nDNA) has unraveled. Read through a history of the philosophy of science, forensics today looks more open-ended and less circular, more nDNA than mitochondrial (mDNA), as it were.

Read through the art of jurisprudence, there is perhaps no stronger indication of that unraveling than Ricciardi and Demos’ documentary Making a Murderer (2015).


In its prelude, it’s not that remarkable. In 1983, Gregory Allen accosts a woman on a beach. He’s charged with indecent exposure, the then-prosecutor (Vogel) drops the charges down to disorderly conduct for reasons which are unclear. Sections of the DA’s office and police are however concerned enough (there are suggestions of additional assaults and stalking) that, by mid-1985, Allen is put under regular surveillance but not arrested. In July 1985, Penny Beerntsen is beaten and raped on the same stretch of coastline. She is led by the Manitowoc Sheriff’s Dept, and DA Vogel, through bruised eyes and while in hospital, to identify Steven Avery. Avery is alibied and there is no physical evidence. Avery is nevertheless found guilty of attempted first-degree murder, first-degree sexual assault and false imprisonment, sentenced to 32 years. He spends 18 years in prison until he is exonerated by nDNA testing of hair follicles. The results point not to Avery but Gregory Allen, who by this time is in prison for another rape. Showing the extent to which Avery was framed for the attempted murder and rape of Beerntsen is surely one of Making a Murderer‘s most superrealist moment.


It’s unremarkable not because it isn’t horrific, but because it isn’t that unusual for police to pursue a groundless conviction in cases of violence against women, or at least those cases that have managed to garner media attention. It’s a scenario in which (sexualised) violence against women, at times children, becomes the cipher and screen upon which to project patriarchal law enforcement porn and play out murky agendas. Oftentimes those agendas are highly racialised, not least because the treatment of women as ciphers means that women are seen as property, in these cases as the violated property of a class of men or its potential conduit (by a man outside of that that group).

What is remarkable about the events in Making a Murderer is that Avery is once again charged, this time for rape and murder of Teresa Halbach — on the day before the so-called ‘Avery bill’ is passed in the Wisconsin legislature, in the middle of depositions for a multi-million dollar suit against the County and which insurers had declared uninsurable, and in the course of investigations in which those who were deposed played a not insignificant role in finding key evidence (pun intended). In a dairy farming county where around 95% of the residents are white, the Averys seem to have figured as ‘not white enough‘ and by all accounts viewed as economically generative in the wrong kinds of ways (junk yard recycling, burglary, car-towing). Just as a media scrum gathers around Avery and the Prosecutor’s telling of a lurid story of rape and murder, the bill (introducing protocols regarding eyewitness id’s, the preservation of biological evidence and mandatory recordings of interrogations) is hastily renamed the ‘Criminal Justice Reforms bill.’ The suit against Manitowoc County disappears. From there on, it just gets murkier still.

holmesWhere nDNA served to exonerate Avery in the first case, in this it served to convict. Often in the most inexplicable of ways, as with the convenience of admitting deviations from protocol, the conflation of vectors with proximity, ‘undetected’ reasoned as a negative, prosecutorial junk science, and appeals to the familial respectability of police as evidence that nothing was tampered with or evidence placed. The revision of the Frye ruling in 1975 – the introduction of expert testimony – has not anchored evidence or explained the science in sure ways but instead amplified dispute as both defense and prosecution call upon rival expertise. Nor have the growing numbers of vocal amateur detectives stilled dispute. Though that is neither a bad thing nor hardly the creation of ‘the internet’ as some have suggested, even if the nets have given rise to their own, often collaborative and anonymous versions. The rise of the amateur detective in fiction (Sherlock Holmes, Miss Marple) always signaled a distance (if not outright distrust) between readers of crime literature and the police. In some respects, it’s also the popularity of these literary amateur detectives from the nineteenth century on that propelled the use of forensics in the judicial system, as juries became unwilling to convict solely on the crude empiricism of police testimony and eye-witnesses, or the respectability politics of the character reference.

There is an entire body of research about the reliability of eye-witnesses. And a broader debate about the credibility of that self-incriminating procedure called the confession. That comes to the fore when Brendan Dassey (Avery’s nephew) is also charged.


The confession – more precisely its use and status in trials as evidence of guilt – is of course a creation of the ‘Inquisition,’ those committees and agencies established by the Catholic Church from the 12th century. O’Kelly’s performance in the role of bullying priest taking Brendan Dassey’s confession — and the urge to instill “‘a Catholic perspective’ on the [Teresa] Halbach case” — does not seem tangential to the course of Dassey’s conviction by a Manitowoc jury, since there was no other evidence that indicted him than his own inconsistent and led confession.

The importance Foucault attributes to the practice of confession is generally well-known. In the first volume of The History of Sexuality, the practice of confessing one’s purportedly shameful truths in the form of testimony is linked to the history and exercise of a distinctly modern variant of power — one that emerges within Christianity, assumes its ritualised techniques during the Middle Ages, and is productive of the truth it purports to reveal in the sense that it materialises shame in confession. Insofar as Foucault’s exemplar is the admittance of sinful acts through remorseful self-narration, it flies over the history of self-incrimination from the time of the Inquisition and as a method of jurisprudence, especially as it relates to the US Bill of Rights’ tenet of voluntary confession.

A less diffuse history of the confessional might emphasise the use of confession in heresy- and witch-trials, and include something about the practice of public lynchings that extended far beyond Foucault’s Eurocentric timeline of the history of spectacular punishment. Relocated from Europe to the US, such a history might also dig down further into the theoretical ambiguities of voluntariness which has generated the “just tell us the truth” as the interrogative punctuation mark in the semblance of a presumably voluntary confession — since the passage of the now-renamed Avery bill, filmed. Foucault’s discussion doesn’t emphasise the ‘false confession’ in the way that contemporary scholars and commentators might and have done in the wake of nDNA, or in the context of torture and subtler forms of manipulation or coercion (intimations of release conditional upon confession, for instance).

The most constant view put by the filmmakers themselves regarding Avery and Dassey’s guilt and who killed Teresa Halbach, as Demos puts it, is “the humility to accept that I don’t know, and I may never know.” It’s not the Chris Carter trutherism of the X-Files. Watching Making a Murderer is like watching a picture turn into a puzzle without corners and lots of pieces missing, and then explode in slow motion. Maybe it will never form a complete picture of proximate causes. Which is perhaps the meaning (and art) of ‘reasonable doubt.’


Still, that’s what makes it nu-true crime rather than the conventional fare of the final denouement or balance restored. The epistemic world of Making a Murderer is one in which physical evidence is not comfortably conclusive but instead understood as a process involving tests whose reliability varies, can be tampered with and placed, and from which inferences are drawn by people much like people we know and work with. It’s a genre shaped less I think by the Mulderian desire to “believe” in aliens and conspiracies triggered by childhood trauma than Scully’s derisive scientificity (“The truth is out there but so are the lies”). It’s that uncertainty that serves as the documentary’s hook, and I admit to being hooked because it hits all of my curiosity triggers, however meta or detailed. Despite the accusations of bias from the then-prosecutor angling for his own series, the strength of Making a Murderer is that it never really lets the viewer off that hook. Across a 10-hour season it just digs deeper and twists around. It remains to be seen what a post-9/11 trutherism looks like in the upcoming season of the X-Files. But I don’t expect it to be as enraging, captivating or as painful as the epistemological unraveling that is Making a Murderer.

That said, I can’t say that I know whether Avery or Dassey are indeed guilty, though the process of evidencing guilt is more interesting for me in a wider sense, which is to say, I would approach that differently if a decision of mine were to have consequences. And guilt beyond reasonable doubt matters in a trial for good reasons. The consequences of getting it wrong include but often extend beyond the imprisonment of the accused. (Manitowoc County should be sued by Beernsten and all the other women that Gregory Allen raped, I thought.) But I also think that the conversation Making a Murderer has managed to open up will be reductive and remain murky unless it weaves into a broader conversation that involves police shootings and prisons (and Black Lives Matter) and, at the same time, refuses to relegate women (like Teresa Halbach) to playing the role of props (property) in a conflict between men who are figured as representatives of their respective racial or class groups. I don’t have any evidence to suggest that’s likely, but it would be the leap to make out of the strictures of a legal realism that rests interminably on periodically, violently re-made foundations.











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