Friday, January 10, 2014
Consent Forms and Affirmative Disclosure
Thanks to Dan and the other prawfs for inviting me to return as a guest! I promise to make up for a slow start with frequent posting for the rest of the month.
One thing I'd like to discuss during my visit is police officers' use of written forms to document consent to perform a suspicionless search. Many civil liberties advocates have long touted the forms as a way of reducing police abuse -- for one example, see this 1999 ACLU press release advocating written consent forms as part of a suite of interventions designed to address racial profiling. More recently, some have questioned whether the forms truly facilitate knowing and voluntary consent.
In an article coauthored with Kira Suyeishi (University of Denver '13), I looked at the ways that different jurisdictions use consent forms and the consequences of the use of such forms. Among other things, we argue that when a defendent signs a consent form, reviewing courts tend to treat the form as dispositive of the consent issue, rather than conducting a more searching inquiry into voluntariness.
I'll talk about courts' treatment of consent forms in a future post. Today, I want to focus on the front-end use of consent-to-search forms. At the outset, one interesting issue relates to the range of consent forms currently in use. Many forms, such as this one used in New Hampshire, simply describe the scope of the search and explain that signing the form constitutes voluntary agreement to the search. Such forms basically track the Supreme Court's decision in Schneckloth v. Bustamonte, which held that consent must be voluntary, as determined from the totality of the circumstances, but that law enforcement officers are not affirmatively obligated to inform suspects of the right to refuse consent.
Other forms provide more information than is constitutionally required. Schneckloth states that "knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent." Yet forms used in Indiana, Maryland, and Ohio nonetheless explicitly state that the person has the right to refuse to consent to the search. Still other forms, such as this one from Oregon, provide multilingual warnings, which, at least superficially, appear to ensure more information for non-native speakers of English.
The range of consent forms raises a few questions in my mind. First, I wonder whether written forms that provide affirmative notice of the ability to decline consent have any effect on the rate of consent. It's unclear that such warnings -- whether oral or written -- actually make any difference at all. Consider the Miranda warning. Although the conclusion is not unanimous, many studies have found that Miranda warnings make little difference in rates of confession -- indeed, one study even found that rates of confession actually increased -- and that these results hold true even when the warnings are communicated in writing rather than orally. (See some of Richard Leo's work for a useful summary of the empirical literature, including his own considerable contributions.)
Perhaps the same is true of consent forms. Anecdotally speaking, a police officer who visited one of my criminal procedure classes a few years ago said that he didn't think the form made a difference. His experience was that if a suspect was willing to grant verbal consent -- and according to him, most are, even when they are guilty -- then the suspect would also almost always be willing to sign a form. Some other police officers appear to hold similar beliefs. This thread, for example, describes some techniques that police officers use to work around consent forms or even leverage them for their own benefit.
Secondly and relatedly, I wonder whether forms that provide people with non-constitutionally-required affirmative information about their right to refuse consent end up weighing against defendants at trial despite doing very little to empower the suspect to withhold consent. Given that Schneckloth says that a suspect's knowledge of the right to refuse consent is a factor to be considered in determining whether consent is voluntary, we might speculate that a form that provides such information will almost automatically convince a judge that the consent is voluntary, even if the person in fact felt that he or she had no choice but to agree to the search and sign the form. Similarly, a judge who would otherwise be concerned about whether a non-English-speaking suspect understood a situation well enough to consent voluntarily to a search might be persuaded by a multi-lingual form that the consent was indeed voluntary.
And finally, I wonder how the apparent generosity of the form in affirmatively disclosing the right to withhold consent affects public perception. For example, do the forms engender a portrayal of law enforcement as (overly?) accommodating of suspects, while simultaneously obscuring the type of work-arounds discussed above?
Thoughts? Reactions? If any current or former law enforcement officers happen to be reading, I'd be particularly interested in your perspectives.
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I would think that the benefit of the consent form is that it provides some objective evidence of what happened, so that the facts are determined by more than just officer testimony. If we're worried about the veracity of officer testimony, that's a considerable benefit; if we're not, then it's not so significant. As for the impact of such forms on judicial assessments of voluntariness, it's hard to know if any measured impact is good or bad without knowing how the form actually does impact voluntariness in the real world.
Posted by: Orin Kerr | Jan 10, 2014 6:53:08 PM
I think the issue of consent and warning raises a couple of issues often overlooked by our Fourth and Fifth Amendment jurisprudence. One is that the police should only search if they have a reason to search. Consent does not give the police a reason: conduct indicating criminal activity gives the police a reason to search. Consent grants a permission to search, but I can grant someone a permission to marry me ("if you ask me, I'll marry you") even if they have no reason to do so ("I've never met you in my life before!"). Schneckloth is such a terrible case because there is little evidence that the police had reason to search outside the racial aspects of the case (there is a bit, but only a little: Schneckloth is, in my view, the Whren of its day, and it's Justice Stewart's most disappointing Crim Pro decision). The warning is supposed to serve as a prophylactic device. I think that the prophylaxis isn't directed just at the suspect (or in Miranda even primarily at the suspect) but also (and perhaps primarily) at the police, requiring them to recognize that the individual that they are dealing with is on the same moral footing as the officer, and not simply a pawn to be taken in "the often competitive business of ferreting out crime". On this view, the prophylactic warning does matter, and it matters as more than just evidence, and it should tip both the police and the courts off to the need to engage in just the sort of inquiry you recommend but that neither engage in. That's the fault of the courts, not of the warning, in my view.
Posted by: Eric Miller | Jan 11, 2014 5:40:14 PM
Also, do we have data on literacy rates among those arrested, and reading level of the forms?
Posted by: Paul Gowder | Jan 11, 2014 6:03:55 PM
Thanks to those who made relevant comments. My Internet connection appears to be a little bit shaky right now, so I'm going to respond piecemeal -- apologies in advance for multiple postings.
@Orin, it seems to me that you are assuming something I'm not, which is that the form necessarily provides a better objective record of what happened than the officer's and suspect's testimony alone. I might reframe the issue like this: if someone doesn't feel that she can orally decline to consent to a search, then why would she feel that she could decline to sign a form? More specifically, if a suspect is frightened, intimidated, not well educated, doesn't understand what's going on, etc., and for some or all of those reasons would end up giving oral consent that isn't truly voluntary, then my intuition is that the suspect would probably also end up giving written consent that isn't truly voluntary. In that situation I don't see why we would treat the form as a better record of the situation.
I think you're clearly right that in situations where the suspect did give voluntary consent, but (for example) later changed his story and claimed he didn't, the form does provide a better record. I suppose I'm just skeptical that the form inherently provides a better objective picture of what happens.
One of the interventions that Kira and I suggest in our article (and that other folks have written about in much more detail) is that consent to search should be videorecorded. I think this probably would provide better objective evidence of what happened more or less across the board.
Posted by: Nancy Leong | Jan 12, 2014 9:34:58 AM
@Eric, I agree almost entirely with your analysis of Schneckloth. I do think the case could have been interpreted in a far more rights-protective way: the Court says the analysis of voluntariness can include "the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation." Such an analysis could, in theory, include all of the factors I mention in my response to Orin and many more. (For those new to the topic, Marcy Strauss has a good article on this subject, abstract here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=287682).) The problem is that courts almost never look at all those factors even though Schneckloth explicitly authorizes it. And consent forms make things worse by dominating courts' analysis whenever there's a signed one -- I'll talk about this in my next post.
@Paul, I don't know of any such data, but I would be really interested to see it if it exists. I would also be interested to know whether there is any relationship, in either direction, between officers' decision to use a written form and the education level of the suspect. In other words, does the suspect's level of education, literacy, or perceived intelligence influence the officer's decision to obtain consent orally or in writing?
Posted by: Nancy Leong | Jan 12, 2014 10:04:37 AM
Nancy, I think a consent form makes a difference -- even assuming we are confident the officers will testiufy with perfect memory and perfect accuracy -- because the police regularly phrase oral requests for consent in ways that will lead some people to be unaware of the fact that they're even consenting to anything. An officer might say something like, "You don't mind if I search your car, now, do you?" That kind of phrasing is often used just as a statement rather than a question, and a person might not realize that it's really a request to waive a right. When a person responds, "no, I don't mind," they can think they're just telling the officer that they're not mad at the officer; they don't know it's a moment that they are waiving a right. A written consent form makes clear that it's a moment at which a legal right is being waived: It usually lays out the right, explains that it is being waived, and often indicates the scope of the waiver.
Posted by: Orin Kerr | Jan 12, 2014 7:19:51 PM
FYI, I unilaterally deleted the irrelevant comments and will do so in the future. Let's keep the conversation on the merits please.
Posted by: Dan Markel | Jan 12, 2014 9:34:19 PM
Fwiw, Orin's explanation is the one that is used to justify written consents to conflicts of interest:
"Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing." (MR 1.7)
Posted by: anon | Jan 13, 2014 1:05:40 PM