Posted by The Situationist Staff on February 23, 2010
Andrew E. Taslitz recently posted his paper, titled “Police are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right” (forthcoming in Ohio State Journal of Criminal Law) on SSRN. Here’s the abstract.
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Some Fourth Amendment scholars have embraced the idea that the courts should defer to police judgments about reasonable suspicion and probable cause. The primary argument for deference is that much police reasoning is intuitive and unconscious, thus not accessible to systematic analysis. Yet, the argument continues, intuition is often more reliable than conscious thinking. This article examines this claim by exploring in depth the cognitive biases and abilities that serve respectively as obstacles to, and opportunities for, police making accurate judgments about individualized suspicion. The article concludes that requiring police consciously to justify their intuitions can improve their accuracy, that the greatest accuracy comes from constructing institutions in a way that combines the best of unconscious intuition with more systematic critique, and that police training can be improved in various ways to enhance cognitive accuracy about the individualized suspicion judgment.
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For a sample of related Situationist posts, see “The Legal Situation of the Underclass,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” and “The Situation of Criminality – Abstract.”
Posted in Abstracts, Implicit Associations, Law | Tagged: Fourth Amendment, fundamental attribution error, police, probable cause | Leave a Comment »
Posted by The Situationist Staff on April 27, 2009
Harvard Law School student David Kessler has just published a fascinating article in the Journal of Criminal Law and Criminology about the Fourth Amendment seizure doctrine. The article is titled “Free To Leave?: An Empirical Look at the Fourth Amendment’s Seizure Standard” (pdf here). Here are some excerpts.
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Whether a person has been “seized” often determines if he or she receives Fourth Amendment protection. The U.S. Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt “free to leave” or otherwise to terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only upon their own beliefs about when a reasonable person would feel free to leave. But both the Court and scholars have noted that although empirical evidence about whether people actually feel free to leave would help guide the seizure inquiry, no such evidence presently exists. This Article presents the first empirical study of whether people would actually feel free to leave in two situations in which the Court has held that people would: on public sidewalks and on buses. Drawing on a survey of 406 randomly selected Boston residents, this Article concludes that people would not feel free to end their encounters with the police. Under the Court’s current standard, respondents would be seized within the meaning of the Fourth Amendment in both scenarios. The data also show that knowledge of one’s legal right to end the encounter with the police would not make people feel free to leave, and that women and people under twenty-five would feel less free to leave than would men and people over twenty-five. This initial empirical evidence suggests the need to rethink the current seizure standard.
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You can download a copy of the article for free here. To review a collection of related Situationist posts, click here.
Posted in Abstracts, Law | Tagged: Fourth Amendment, seizure | 1 Comment »