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.

Enabling torture: APA, clinical psychology training and the failure to disobey.

Alice LoCicero, Robert P. Marlin, David Jull-Patterson, Nancy M. Sweeney, Brandon Lee Gray, & J. Wesley Boyd
Peace and Conflict: Journal of Peace Psychology, Vol 22(4), Nov 2016, 345-355.

Abstract

The American Psychological Association (APA) has historically had close ties with the U.S. Department of Defense (DOD). Recent revelations describe problematic outcomes of those ties, as some in the APA colluded with the DOD to allow psychologists to participate, with expectation of impunity, in harsh interrogations that amounted to torture of Guantanamo detainees, during the Bush era. We now know that leaders in the APA purposely misled psychologists about the establishment of policies on psychologists’ roles in interrogations. Still, the authors wondered why, when the resulting policies reflected a clear contradiction of the fundamental duty to do no harm, few psychologists, in or out of the military, protested the policies articulated in 2005 by the committee on Psychological Ethics and National Security (PENS). Previous research suggested that U.S. graduate students in clinical psychology receive little or no training in the duties of psychologists in military settings or in the ethical guidance offered by international treaties. Thus psychologists might not have been well prepared to critique the PENS policies or to refuse to participate in interrogations. To further explore this issue, the authors surveyed Directors of Clinical Training of doctoral programs in clinical psychology, asking how extensively their programs address dilemmas psychologists may face in military settings. The results indicate that most graduate programs offer little attention to dilemmas of unethical orders, violations of international conventions, or excessively harsh interrogations. These findings, combined with earlier studies, suggest that military psychologists may have been unprepared to address ethical dilemmas, whereas psychologists outside the military may have been unprepared to critique the APA’s collusion with the DOD. The authors suggest ways to address this apparent gap in ethics education for psychology graduate students, interns, and fellows.

The article is here.

A Teachable Ethics Scandal

Mitchell Handelsman
Teaching of Psychology

Abstract

In this article, I describe a recent scandal involving collusion between officials at the American Psychological Association (APA) and the U.S. Department of Defense, which appears to have enabled the torture of detainees at the Guantanamo Bay detention facility. The scandal is a relevant, complex, and engaging case that teachers can use in a variety of courses. Details of the scandal exemplify a number of psychological concepts, including obedience, groupthink, terror management theory, group influence, and motivation. The scandal can help students understand several factors that make ethical decision-making difficult, including stress, emotions, and cognitive factors such as loss aversion, anchoring, framing, and ethical fading. I conclude by exploring some parallels between the current torture scandal and the development of APA’s ethics guidelines regarding the use of deception in research.

The article is here.

Would You Deliver an Electric Shock in 2015?

Dariusz Doliński, Tomasz Grzyb, Tomasz Grzyb and others
Social Psychological and Personality Science
First Published January 1, 2017

Abstract

In spite of the over 50 years which have passed since the original experiments conducted by Stanley Milgram on obedience, these experiments are still considered a turning point in our thinking about the role of the situation in human behavior. While ethical considerations prevent a full replication of the experiments from being prepared, a certain picture of the level of obedience of participants can be drawn using the procedure proposed by Burger. In our experiment, we have expanded it by controlling for the sex of participants and of the learner. The results achieved show a level of participants’ obedience toward instructions similarly high to that of the original Milgram studies. Results regarding the influence of the sex of participants and of the “learner,” as well as of personality characteristics, do not allow us to unequivocally accept or reject the hypotheses offered.

The article is here.

“After 50 years, it appears nothing has changed,” said social psychologist Tomasz Grzyb, an author of the new study, which appeared this week in the journal Social Psychological and Personality Science.

A Los Angeles Times article summaries the study here.

Do Unto Others ? Methodological Advance and Self- Versus Other-Attentive Resistance in Milgram’s “Obedience” Experiments

Matthew M. Hollander and Douglas W. Maynard
Social Psychology Quarterly August 2, 2016

Abstract

We introduce conversation analysis (CA) as a methodological innovation that contributes to studies of the classic Milgram experiment, one allowing for substantive advances in the social psychological “obedience to authority” paradigm. Data are 117 audio recordings of Milgram’s original experimental sessions. We discuss methodological features of CA and then show how CA allows for methodological advances in understanding the Milgramesque situation by treating it as a three-party interactional scene, explicating an interactional dilemma for the “Teacher” subjects, and decomposing categorical outcomes (obedience vs. defiance) into their concrete interactional routes. Substantively, we analyze two kinds of resistance to directives enacted by both obedient and defiant participants, who may orient to how continuation would be troublesome primarily for themselves (self-attentive resistance) or for the person receiving shocks (other-attentive resistance). Additionally, we find that defiant participants mobilize two other-attentive practices almost never used by obedient ones: Golden Rule accounts and “letting the Learner decide.”

The article is here.

People Feel Less Responsible For Their Actions When They're Following Orders

By Katrina Pascual
Tech Times
Originally posted February 19, 2016

Here is an excerpt:

Now, the modified experiment, conducted by University College London researchers, reflected the subjects' mental distance from their actions when obeying orders.

"We wanted to know what people actually felt about the action as they made it, and about the outcome. Time perception tells us something about the basic experiences people have when they act, not just about how they think they should have felt," said UCL professor and senior study author Patrick Haggard.

Results showed that when the subjects freely chose the action in coercive orders, there was a longer interval between the action and tone, which is produced when subjects gave their partner an electric shock by pressing a key.

The article is here.

Did We Interpret the Milgram Study Incorrectly?

Famous Milgram 'electric shocks' experiment drew wrong conclusions about evil, say psychologists

By Adam Sherwin
The Independent
Originally published September 5, 2014

Here are two excerpts:

Now psychologists have found that the study, which showed how ordinary people will inflict extraordinary harm upon others, if someone in authority gives the orders, may have been completely misunderstood.

Instead of a latent capacity for evil, we just want to feel good about ourselves. And it is Professor Stanley Milgram’s skill as a “dramatist” which led us to believe otherwise.

(cut)

Far from being distressed by the experience, the researchers found that most volunteers said they were very happy to have participated.

Professor Haslam said: “It appears from this feedback that the main reason participants weren’t distressed is that they did not think they had done anything wrong.  This was largely due to Milgram’s ability to convince them that they had made an important contribution to science.”

The entire article is here.

Book Review: 'Behind the Shock Machine' by Gina Perry

By Carol Tavris
The Wall Street Journal
Originally published September 6, 2013

Here is an excerpt:

To almost everyone's surprise at the time, upward of two-thirds of the participant-teachers administered what they thought were the highest levels of shock, even though many were sweating and suffering over the pain they believed they were inflicting on a stranger in the name of science. Milgram's experiment produced a firestorm of protest about the potential psychological harm inflicted on the unwitting participants. As a result, it could never be done today in its original version.

Some people hated the method and others the message, but the Milgram study has never faded from public attention. It has been endlessly retold in schoolrooms, textbooks, TV programs, novels, songs and films. What, then, is left to say about it?

According to Gina Perry, an Australian psychologist and journalist, everything. She has investigated every aspect of the research and spoken with seemingly anyone who had a connection to Milgram (1933-84). She describes each of Milgram's 24 experimental variations on the basic obedience paradigm. She interviewed some of the original subjects, the son of the man who played the "learner," Milgram's research assistants, his colleagues and students, his critics and defenders, and his biographer. She listened to audiotapes of the participants made during and after the experiments. She pored through the archives of Milgram's voluminous unpublished papers.

The entire book review is here, unfortunately, behind a paywall.