The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance

Sommers, Roseanna and Bohns, Vanessa K.
Yale Law Journal, Vol. 128, No. 7, 2019. 
Available at SSRN: https://ssrn.com/abstract=3369844

Abstract

Consent-based searches are by far the most ubiquitous form of search undertaken by police. A key legal inquiry in these cases is whether consent was granted voluntarily. This Essay suggests that fact finders’ assessments of voluntariness are likely to be impaired by a systematic bias in social perception. Fact finders are likely to under appreciate the degree to which suspects feel pressure to comply with police officers’ requests to perform searches.

In two preregistered laboratory studies, we approached a total of 209 participants (“Experiencers”) with a highly intrusive request: to unlock their password-protected smartphones and hand them over to an experimenter to search through while they waited in another room. A separate 194 participants (“Forecasters”) were brought into the lab and asked whether a reasonable person would agree to the same request if hypothetically approached by the same researcher. Both groups then reported how free they felt, or would feel, to refuse the request.

Study 1 found that whereas most Forecasters believed a reasonable person would refuse the experimenter’s request, most Experiencers — 100 out of 103 people — promptly unlocked their phones and handed them over. Moreover, Experiencers reported feeling significantly less free to refuse than did Forecasters contemplating the same situation hypothetically.

Study 2 tested an intervention modeled after a commonly proposed reform of consent searches, in which the experimenter explicitly advises participants that they have the right to with- hold consent. We found that this advisory did not significantly reduce compliance rates or make Experiencers feel more free to say no. At the same time, the gap between Experiencers and Forecasters remained significant.

These findings suggest that decision makers judging the voluntariness of consent consistently underestimate the pressure to comply with intrusive requests. This is problematic because it indicates that a key justification for suspicionless consent searches — that they are voluntary — relies on an assessment that is subject to bias. The results thus provide support to critics who would like to see consent searches banned or curtailed, as they have been in several states.

The results also suggest that a popular reform proposal — requiring police to advise citizens of their right to refuse consent — may have little effect. This corroborates previous observational studies, which find negligible effects of Miranda warnings on confession rates among interrogees, and little change in rates of consent once police start notifying motorists of their right to refuse vehicle searches. We suggest that these warnings are ineffective because they fail to address the psychology of compliance. The reason people comply with police, we contend, is social, not informational. The social demands of police-citizen interactions persist even when people are informed of their rights. It is time to abandon the myth that notifying people of their rights makes them feel empowered to exercise those rights.

When Self-Report Trumps Science: Confessions, DNA, & Prosecutorial Theories on Perceptions of Guilt

Sara Appleby and Saul Kassin
Psychology, Public Policy, and Law, Mar 10 , 2016

Abstract

For many wrongfully convicted individuals, DNA testing presents a new and invaluable
means of exoneration. In several recently documented cases, however, innocent confessors were
tried and convicted despite DNA evidence that excluded them. In each of these cases, the
prosecutor proposed a speculative theory to explain away the mismatched confession and
exculpatory DNA. Three studies were conducted that pitted confessions against DNA test
results. Study 1 showed that people in general trust DNA evidence far more than self-report,
including a defendant’s confession. Using student and adult community samples, Studies 2 and 3
showed that in cases in which the defendant had confessed to police but was later exculpated by
DNA, prosecutorial theories spun to reconcile the contradiction attenuated the power of
exculpatory DNA, significantly increasing perceptions of the defendant's culpability, the rate of
conviction, and the self-reported influence of the confession. Implications and suggestions for
reform are discussed.

The cited article is here.

Access to the article is here.

Making sense of a court's two cents

By David DeMatteo, JD, PhD, Jaymes Fairfax-Columbo, BA, and Daniel A. Krauss, JD, PhD
The Monitor on Psychology
December 2014, Vol 45, No. 11
Print version: page 24

The Pennsylvania Supreme Court recently decided two cases that address whether parties can use expert witnesses to help juries assess lay witness testimony. In one case, Commonwealth v. Walker (2014), the court lifted a ban on the admissibility of expert testimony regarding eyewitness identification. In the other case, Commonwealth v. Alicia (2014), the court held that expert testimony regarding false confessions was inadmissible.

Although the two outcomes diverged, robust research suggests that eyewitness identification and false confessions pose significant problems for the legal system (Wells et al., 1998; Kassin et al., 2010). So, how did the court justify its differing opinions? And what lessons can be learned from these discrepant decisions concerning how social science can influence legal decisions?

The entire article is here.