COERCED FATE: HOW NEGOTIATION MODELS LEAD TO FALSE CONFESSIONS.

Author:Janzen, Kiera
 
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Table of Contents INTRODUCTION 72 I. THE LEGAL FRAMEWORK OF INTERROGATIONS 78 A. Historical Legal Framework of Coercion 78 B. Legal Framework for Modern Interrogation Techniques 81 C. Legal Limits on Modern Interrogation Techniques 85 D. Practices that Further the Modern Interrogation Legal Framework 86 II. COERCIVE PRACTICES AND CONFESSIONS 87 A. Definition of False Confessions 87 B. Significance of Confession Evidence 87 C. The Reid Technique 89 III. NEGOTIATION MODELS 91 IV. APPLICATION OF NEGOTIATION MODELS TO THE CASE OF NGA TRUONG 93 A. Specifics of the Truong Interrogation 94 B. Negotiation Models Applied to the Interrogators 95 C. Negotiation Models Applied to Nga Truong 96 CONCLUSION 97 A. Aftermath of Nga Truong's Case 97 B. Recommendations for Cross-Institutional Reform 98 INTRODUCTION

"Patterns tell you that you have a bad orchard, not just a bad apple. " (1)

On November 30, 2008, a sixteen-year-old mother hysterically placed a call to the police department in Worcester, Massachusetts to report that her thirteen-month-old son, who suffered from respiratory problems, was not breathing. (2) Nga Truong's baby died at a nearby hospital less than ninety minutes later. (3) About twenty-four hours later, Truong confessed to suffocating her infant son, Khyle, after Worcester police detectives interrogated her for two hours. (4) Following the confession, police arrested Truong and charged her with murder as an adult. (5) A judge denied Truong bail and the right to attend Khyle's funeral, then sent her to jail where she spent the first four months on suicide watch and in solitary confinement. (6) Without a trial, this period of detainment occurred while Truong was supposed to be presumed innocent. (7)

A videotape of the interrogation shows Truong in an eight-by-ten foot windowless interrogation room, repeatedly denying killing her son and fighting back tears. (8) Over the course of the two-hour interrogation, the teenage mother stated thirteen times that she did not kill Khyle. (9) However, Sergeant Kevin Pageau and Detective John Doherty's utilization of interrogation elements from the commonly used Reid Technique--a multi-part method of questioning designed to psychologically coerce subjects--eventually led Truong to falsely confess. (10)

Nearly three years later in 2011, the prosecutor dropped the case against Truong, and she was released after spending two years and six months in jail. (11) Before the prosecutor dropped the charges, Worcester Superior Court Judge Janet Kenton-Walker approved a motion to suppress all statements that Truong made to the detectives over the course of her interrogation. (12) Further, in February 2011, the judge ruled that the confession was inadmissible. (13) Judge Kenton-Walker described Truong as "a frightened, meek, emotionally compromised teenager who never understood the implications of her statements." (14) Ultimately, she deemed the girl's statements involuntary for two reasons: the interrogators violated procedure by failing to extend her the Miranda rights required for juveniles, and they used false statements and deception to illicit the confession. (15) The prosecutor had no other evidence against Truong--no DNA evidence, no eyewitness testimony, no prior convictions, and no circumstantial evidence--and was forced to drop the case. (16) In 2016, the City of Worcester reached a settlement with Truong for $2.1 million, which ended her suit against the city for civil rights violations, malicious prosecution, false arrest, and false imprisonment. (17)

Judge Kenton-Walker found Truong's statements to be involuntary because Pageau and Doherty's collective use of deceit, false statements, false promises, and trickery coerced Truong to falsely confess. (18) However, almost all of the individual techniques that the interrogators employed were legal. (19) Interrogations are inherently stressful and coercive by nature because authority figures use both intimidation and leverage. (20) Police departments no longer engage in the brutal physical torture tactics, often referred to as "the third degree," that were commonplace prior to the Supreme Court's 1936 prohibition on such methods in Brown v. Mississippi. (21) However, the current U.S. legal framework permits many psychologically coercive techniques that police interrogators employ. (22)

Interrogators design and employ psychologically coercive tactics to elicit confessions in a manner similar to formerly used physical torture techniques. One definition of psychologically coercive police tactics is "coercive police methods that sequentially manipulate a suspect's perception of the situation, expectations for the future, and motivation to shift from denial to admission." (23) These tactics can result in truthful confessions and the genuine administration of justice, but numerous cases demonstrate that they frequently lead to false confessions and wrongful convictions of innocent individuals who were psychologically coerced to profess guilt to crimes that they did not commit. (24)

The psychologically coercive tactics used by interrogators like Pageau and Doherty, and the confessions they produce, raise the issue of reliability throughout the legal process, from interrogation to potential conviction. (25) Most jurors cannot fathom confessing to a crime that they did not commit. (26) People unfamiliar with interrogation tactics struggle to imagine why someone would act against her own interests by admitting guilt when she is truly innocent. (27) Consequently, people tend to view any confession, regardless of its validity, with an underlying presumption of guilt. (28) As a result, "[t]he real trial is what occurs in the interrogation room." (29) Existing laws and their enforcement must shift to prohibit psychologically coercive practices that lead to unreliable confessions because such confessions carry presuppositions of guilt that impair the administration of justice throughout the entirety of a case.

False confessions not only impair the administration of justice, they also cost cities and taxpayers millions of dollars. (30) As in Truong's case, courts and juries award millions of dollars in settlements and damages to individuals implicated in false confession cases. (31) In addition to the pursuit of true justice, police departments have financial incentives to change their internal interrogation practices to avoid costly payouts for cities and their taxpayers.

The case of Nga Truong is hardly an isolated example of the use of psychologically coercive tactics leading to a false confession and wrongful conviction. In the U.S., 40 of the first 250 people exonerated based on DNA evidence had falsely confessed. (32) The development of DNA testing has revealed the scope of the issue of false confessions and wrongful convictions. (33) Post-conviction DNA tests prove that many people who falsely confessed to crimes could not have been the true perpetrators of those crimes. (34) In turn, psychologists and social scientists have studied the psychological impacts of coercive interrogation tactics in attempts to determine how they are applied and why they lead to confessions, whether false or not. (35)

Although psychologists and social scientists have provided insight into how coercive interrogation methods impact interrogation subjects, examining psychologically coercive police interrogations under the frameworks of several of the most commonly-used negotiation models provides further insight into the actions and motivations of both interrogation subjects and interrogators. This Comment analyzes psychologically coercive interrogations under the position-based negotiation model, the interest-based model, (36) and the five core concerns presented by Roger Fisher and Daniel Shapiro in their book, Beyond Reason: Using Emotions as You Negotiate. (31) This analysis clarifies common misconceptions surrounding confession evidence by illustrating how interrogators get people to confess, why people confess to crimes that they did not commit, and what motivates police departments to engage in systematic use of these techniques. This examination further demonstrates that the current legal framework applicable to interrogations gives police broad leeway to employ tactics that have coercive effects akin to traditional physical torture methods. This legal framework, in combination with lack of officer and department accountability and failure to address problematic interrogation practices at a systemic level, creates a bad orchard where innocent people are psychologically coerced to falsely confess.

The remainder of this Comment will unfold in several parts. Part I examines the development of the current legal framework that governs police interrogations and illustrates how it allows psychologically coercive practices to persist. Part II addresses coercive interrogation tactics and the psychological and social science research on coerced confessions, which demonstrates how these techniques lead to confessions. Part III explains the position-based, interest-based, and core concerns negotiation models and applies each model to the interrogation of Nga Truong to show how police can exploit elements from these negotiation models to coerce interrogation subjects to confess. Part IV then reflects on the insights gained from examining police interrogations under the negotiation model framework and proposes potential solutions to the problem of psychologically coercive interrogation practices.

  1. THE LEGAL FRAMEWORK OF INTERROGATIONS

    1. HISTORICAL LEGAL FRAMEWORK OF COERCION

      Officials have engaged in widespread torture as a means of eliciting confessions throughout history. Centuries ago in the Roman Republic, officials regularly used physical torture on slaves to extract confessions and augment testimony. (38) In the later period of the Roman Empire, officials expanded confessional torture policies to citizens as well as slaves, and used these...

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