© Springer International Publishing Switzerland 2016Monty Nelson and Marguerite Trussler (eds.)Fetal Alcohol Spectrum Disorders in Adults: Ethical and Legal PerspectivesInternational Library of Ethics, Law, and the New Medicine6310.1007/978-3-319-20866-4_2
Why People with FASD Fall for Manipulative Ploys: Ethical Limits of Interrogators’ Use of Lies
University of Connecticut, Mansfield, USA
People with FASD are easily manipulated by others, and such social vulnerability is a major reason why they are so likely to get into serious legal and other forms of difficulty. Police interrogations are also manipulative, in that a detective is attempting to use various ploys—including deceptive statements–to persuade someone to do something he is initially reluctant to do, namely admit to having committed a criminal act. In this paper, the authors use an audiotape of an actual interrogation of a young man with FASD who initially strongly denied guilt, to better understand the way interrogative manipulations (including lies) were used to break his will and get him to confess to a crime which he may or may not have committed. Cognitive and other impairments in people with FASD are discussed in relation to specific interrogative ploys—particularly the introduction of pseudo-factual and other forms of lies–that take advantage of those impairments. Ethical cautions regarding lie-infused interrogation, particularly when used with brain-impaired people who have trouble discerning factual-potential and the motivations of liars, are raised. A point that is strongly emphasized in this paper, and derived mainly from the writings of Jerome Bruner about narrative story-telling, is that for an adolescent or adult to stay out of jail requires a level of meta-cognition in which the intentions of a manipulator (whether a co-criminal or an interrogator) are thought about on a functional and abstract level. Unfortunately, people with FASD operate on a concrete and non-reflective level, which is why so many people with that disorder end up in jail or prison.
Social Vulnerability of People with FASD
People with Fetal Alcohol Spectrum Disorder (FASD) do not, as a rule, show good social insight or judgment (Streissguth and Kanter 2002). Nor do they possess an ability to adequately apply their thoughts and intuitions to determine how to act safely in complicated or multifaceted situations. That is the main reason why they get in trouble with the law and “mess up” in other ways, such as getting fired from jobs (Edwards and Greenspan 2011). A big contributor to the poor social judgment of people with FASD and other brain-based disorders is their inability to see through, and resist, the risky manipulations, pressures and temptations offered by others (Greenspan and Woods 2014). These manipulations often involve pseudo-factual hypothetical statements that are in effect lies; a real life example (which resulted in a lengthy prison sentence) involved a young man being falsely told by a peer that his mother was being physically abused by a boyfriend, who needed to be beaten up in order to be taught a lesson. The assault took a severe turn and the targeted man died, which likely was the manipulator’s intention all along. But manipulation can take many forms other than committing assault or murder, ranging from being persuaded to consume drugs or alcohol when one is trying to quit, to being pressured to confess to a crime when one is trying to maintain one’s innocence.
Susceptibility of people with FASD to being manipulated by others is an obvious result of their neuro-cognitive limitations, but other factors enter in as well (Greenspan and Driscoll 1997a). These include their social neediness, which is a reflection of having few if any non-deviant friends, and their personality adaptations (a tendency to mimic and accede to the requests of others) which people with a history of failure tend to make (Zigler 2013). Suggestibility is a personality trait with a cognitive component that has been found to be high in people with FASD and which makes them susceptible to being manipulated in various contexts (Brown et al. 2011). Various studies have established that people with FASD and related neurodevelopmental disorders have a several-times greater probability of giving false confessions (Fast and Conry 2006), a reflection of the fact that interrogations, even those undertaken with the most honorable of intentions, are heavily reliant on the use of manipulative methods, typically involving some form of deception.
Although there is an acknowledged cognitive basis for the susceptibility of people with FASD to manipulation, that basis has generally been analyzed on a global and superficial level, such as by general reference to their impairments in “executive functioning” without linking it to specific actions. While executive functioning is a valid and useful construct, a more helpful analysis would delve deeper, by identifying specific ploys engaged in by a manipulator, and then seeing how those ploys tie in with specific cognitive processes, including executive functioning, and limitations. Such a more contextualized approach to understanding the poor judgment (with usual predictable bad outcomes) of people with FASD has not been widely attempted, to our knowledge.
An obstacle to conducting such an analysis is that we typically do not know, on a moment-to-moment basis, the deceptive tactics that are used in a particular incident. An exception to that generalization, however, can be found in recorded police interrogations, where the ebb and flow of a manipulative transaction can be minutely observed and analyzed. Police interrogation of people with FASD is an interesting subject for investigation in its own right, independent of its providing a window into the problems cognitively impaired individuals have in perceiving and resisting manipulative ploys. That is because people with brain-based impairments are notoriously susceptible to giving false confessions (Kassin et al. 2009), and are unable to resist the deceptive questioning ploys by interrogators, the use of which have been authorized by the US Supreme Court (Skolnick 1985) and prominently promoted in interview training manuals (Imbau et al. 2011). The current paper, therefore, is intended to shed light on how the cognitive limitations of people with FASD contribute to the ease with which they can be deceptively manipulated in general, and also to shed light on how this tendency contributes in particular to their vulnerability to giving false, as well as truthful but involuntarily-given, statements in police interrogation situations.
In pursuing these purposes, we shall first describe all of the deception ploys used in a successful (in the sense of producing a breakdown of will to resist) interrogation of a young man with FASD; examine the appropriateness of using a “big lie” to break down his resistance to incriminating himself; and then explain why it is that FASD and related modes of impaired cognitive functioning made him especially vulnerable to having his “will overborne” by a persistent interrogator. In a final section, we discuss ethical and legal implications flowing out of an enhanced understanding of the deceivability and gullibility of people with FASD and related disorders.
A Listing of Ploys Used to Break the Will of a Person with FASD
The case used in this paper involves “Juan,” a homeless young man of 20 who was diagnosed with Fetal Alcohol Syndrome at a specialized FAS clinic as a pre-adolescent. Because Juan’s legal case is still wending its way through the legal system, we shall slightly change some facts and take various other pains to disguise his identity. The basic crime of which he was charged was statutory rape, although the more serious but in this case, less provable charge of forcible rape was also alleged. Juan was on probation for an earlier relatively minor property crime. He has no history of violence or crimes against persons. He had failed to fulfill some requirement of his probation, as people with FASD have a difficult time remembering meetings with probation officer, paying fines, giving urine samples, etc. He consequently probably expected to be rearrested. The arresting person, “Officer Truax,” delivered Juan to the presence of “Detective Smith,” without telling him the reason. In the following paragraphs, we shall list each of the ploys told, and the response of Juan to each ploy. We shall save an analysis of each ploy and how it intersected with Juan’s impairments, for a later section.
False Friendliness Ploy
Officer Truax brought Juan into a room in the police station, and introduced him to Detective Smith, who he described as “a really nice guy.” Truax offered to fetch Juan a soft drink and told him that it was the only time he had ever offered such a kindness to anyone brought in for questioning. Juan was wary but seemed somewhat reassured.
Concealing True Purpose Ploy
Detective Smith told Juan that he was picked up for a probation violation but that he also wanted to question him about another matter. Juan was never told the nature of this other matter, and was asked not a single question about the probation violation. Juan made no audible response other than “okay.”
Ploy to Create an Incentive to Cooperate
Juan was told that he was technically under arrest for the probation violation. Detective Smith told Juan that after they cleared up the probation matter, he could not be released right away but would have to be brought to the jail before he could be released. Likely, this caused Juan to think that by cooperating he would go free, while refusing to cooperate would land him in jail. It also minimized the seriousness of the situation and caused Juan to think that he was not in any real danger. Juan said “I understand” and asked no questions, such as the one that would occur to most people: “If I am not here for the probation violation, then just what do you want to question me about?”
Ploy of Reading Miranda Rights Quickly and Without Real Probes
Detective Smith read Juan the Miranda warning in a very cursory and formulaic manner. After every sentence was read quickly, the detective said to Juan “Do you understand that?” and Juan replied reflexively with “yes.” Juan was never asked to repeat it in his own words, or to demonstrate what it really meant, such as that he could stop talking at any moment and walk out, which he probably felt he could not do in this case as he was told he was under arrest for the probation violation warrant. This ploy was intended to comply with the law by reading the rights without giving Juan any encouragement to actually assert those rights.
Ploy of Asking Many Irrelevant Questions
The first 30 min of the interrogation consisted of a string of questions having nothing to do with the alleged criminal offence, which still was not divulged. They had to do with Juan’s life and touched on such things as his parents, siblings, extended family, friendships, past addresses, current living arrangements, school history, past court experiences, etc. Often, Juan was asked for specific dates about past events, such as when he attended a particular school. The effect was to create almost a trance-like question and answer sequence, where Juan would reply to each question with a truthful response, and no question stood out as particularly challenging. Juan replied without delay to every question and demonstrated good recall about various details of his life and its history.
Ploy of Easing Indirectly into Dangerous Territory
Detective Smith started to ask Juan about his sexual history, and also about his use of alcohol and other intoxicants. When asking about his female friends, Smith wanted to know their ages, the dates and frequency of sexual encounters, and the locations. He also asked about Juan’s male friends and one young man in particular, a slightly older person nicknamed “Ratman,” who lived in an abandoned house. Ratman purchased alcohol for under-aged youths and had video-watching parties where various young people would lounge on mattresses, drink and sometimes have sex, which Ratman apparently liked to watch. Juan answered every one of these intensely personal questions without hesitation or apparent evasion, and did not once say “none of your business.” The one time Juan stiffened a little was when Smith mentioned a girl named “Caroline” and asked if Juan had ever had sex with her. Juan quickly denied it, saying he considered her like a younger sister and would never have sex with her.
Ploy of Seizing on a Minor Inaccuracy
At least a half dozen young women with whom Juan had been intimate were discussed in the course of the interview. None of them were under-age, with the exception of Caroline. One of the girls, “Brenda,” apparently was several months older than the age that Juan said she was. The detective told Juan that he was sure he knew Brenda’s real age and that he was intentionally lying. The detective said to Juan “I know the answer to most of the questions I am asking you, and if you tell a falsehood I will know it and I will think poorly of you. If you want me to trust you and think you have a good character, it is important that you answer truthfully to every question I ask you.” Juan said he understood.
Ploy of Telling a Lie About Incriminating Evidence
Detective Smith returned to the topic of Caroline, with several questions about the nature of their relationship. Juan mentioned that Caroline had a huge crush on him, and had several times asked him to sleep with her but that he had always resisted the temptation, both because of her age and the fact that he had promised her brother he would look out for her. Juan indicated that he thought of Caroline as a kind of younger sister and he made it a point to never have sex with family. He even broke off a relationship with another young woman when he discovered they may have been distantly related. Smith asked about a particular evening at Ratman’s house when Juan admitted being drunk to the point of blacking out and waking up later lying next to Caroline. The detective asked Juan if he could have had sex with Caroline that night and he replied by saying he was certain he did not. Smith then asked Juan “well how then can you explain how your DNA came to be found inside Caroline’s vagina when she was checked at a medical clinic?” Juan replied to this totally fabricated assertion by saying “I have no idea.”
Ploy of Mixing Truth or Hypothetical Truth with Fiction
A key to causing an emotional breakdown in Juan came when Detective Smith asked him if had ever had a sexually transmitted disease. Juan replied that he found out he had an STD when one of his sexual partners told him she was pretty sure she had contracted it from him. Smith then truthfully told Juan that Caroline had contracted the same disease, and that was how Juan’s name came to the attention of the police, as Caroline was asked by a nurse to reveal the names of her sexual partners. Detective Smith again told Juan that they knew he had sex with Caroline, as he had gotten the information from others at the party, which was not exactly true. Detective Smith then repeated the big lie about finding Juan’s DNA inside Caroline’s vagina. At this point, Juan started to sob and said that his practice was to pull out when he felt himself about to come, but he supposed it did not always work perfectly.
Ploy of Suggesting a Culpability-Minimizing Theory
Once Juan started to cry, it became likely that Detective Smith would be able to “reel him in.” The key to this lay in offering Juan a hypothetical story that Smith believed to be true, and then getting Juan to confirm and elaborate on that story. Three motivational components to Smith’s success in “closing the deal” were: (a) convincing Juan that he would feel better if he came clean, (b) telling him repeatedly that what he did was “not the worst thing in the world,” “most of the people I have interviewed have done much worse things”, etc., thus minimizing the seriousness of the crime and implying a confession would likely would not bring serious consequences, (c) implying that it would be in Juan’s interest in terms of a lesser consequence if he was truthful, and (d) providing Juan with a plausible explanation for his conduct on the night in question that reduced Juan’s feelings of shame and guilt for an act of sex with a young girl he had promised to protect and felt bad about.