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Monday, January 13, 2014

How Courts Evaluate Written Consent Forms

In my previous post, I talked about some of the questions raised by law enforcement use of written consent forms that I have begun to explore in recent research with Kira Suyeishi.  What effect does the use of the consent form have on the interaction between the law enforcement officer and the suspect?  My tentative thinking, based on research in the Miranda context and conversations with officers, is that it's not inherently more difficult to obtain written consent than oral consent.  Moreover, written consent doesn't inherently signal a greater degree of voluntariness than oral consent.

The question, then, is how courts actually analyze consent forms?  In our previous work, we examined every case involving a consent form in published federal appellate decisions from 2005-2009, inclusive.  During that time frame, 148 claims raised the issue of whether a particular instance of consent was sufficient to allow a search consistent with the Forth Amendment.  Of those claims, 104 did not involve a written consent form and 44 did.  Of the claims involving consent forms, 42 arose in criminal cases, and only 2 defendants prevailed (5%).  This is less than the overall percentage of defendants who won on suppression motions raising Fourth Amendment claims during the same time period (10%) and less than the percentage of defendants who won on suppression motions raising consent issues but not involving consent forms (9%).

As we explain in the paper, the numbers are interesting and some might view them as suggestive, but they are too small to draw statistically significant conclusions about the effect of the form on judicial determinations of consent.

Rather, the more interesting story is a qualitative one.  Reading the cases involving consent forms reveals that judges usually treat the existence of a signed consent form as dispositive.  That is, where the defendant signed a form consenting to a search, the judge frequently did not even mention any other facts and circumstances that might contribute to the determination of voluntariness.  When the judge did mention other factors, the judge typically alluded to them in a cursory way, focusing primarily on the signed consent form.

This mode of analysis runs counter to the language of Schneckloth v. Bustamonte (for non-crim-pro folks, the seminal case on consent to search), which held that courts must analyze the "totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the" interaction.  The Court went on to emphasize that "[t]he significant fact about [its previous decisions] is that none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances."  Yet when the defendant has signed a consent form, that factor often seems to be dispositive -- or, at least, it is the only factor the court discusses in its written decision.

Although in this particular project we did not attempt to locate the actual form signed in each case, in future research I'd like to examine whether the exact nature of the form has any effect on the analysis.   As I explained in my previous post, many such forms affirmatively provide information about the right to decline a search that Schneckloth doesn't actually require, and the existence of such affirmative disclosures on a written form might misleadingly reassure judges that the consent was voluntary.

It's quite understandable why judges give considerable weight to consent forms.  Often such forms are the only tangible documentation of the interaction in which consent was obtained.  But I continue to worry that such forms are assigned undue weight, given that a suspect who is coerced into issuing oral consent might be coerced just as easily into signing a form.  This is not to say that the form should receive no weight at all.  As commenters to my previous post observed, the form has the potential to formalize an encounter that might otherwise seem casual and inconsequential to the suspect.  But forms shouldn't be dispositive.  The bare fact that a signed form exists shouldn't preclude examination of the circumstances that led
to the signing of the form.

(Cross-posted at nancyleong.com)

Posted by Nancy Leong on January 13, 2014 at 12:12 PM | Permalink


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Hi ctr -- I think the human subject consent forms are a really interesting comparison (as are consent forms in various other medical contexts). In my previous post I linked to some examples of the police forms (see the fourth and fifth paragraphs for examples from NH, IN, OH, MD, and OR).

The police consent forms are much more straightforward and lacking in boilerplate (and shorter -- I haven't seen one that's more than a page long). I'm not sure how all that ultimately plays out, though, given that the police search situation tends to be more tense and intimidating. I suppose my intuition is that if someone is sufficiently stressed or frightened, he might not be able to read and understand a form regardless whether it's one page or 25. But I'm interested in your thoughts.

Posted by: Nancy Leong | Jan 13, 2014 2:44:29 PM

I'm thinking of the analogy to consent forms used to protect human subjects in research, which are required by IRBs. Are the police forms similarly long and convoluted and filled with boilerplate?

Posted by: ctr | Jan 13, 2014 2:10:21 PM

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