Psychological Assessment of Voluntary Consent

Cornell University, Ithaca NY

Investigators

Abstract

The Fourth Amendment to the U.S. Constitution aims to protect the public from unreasonable search and seizure by requiring authorities to have probable cause before conducting a search. However, the vast majority of police searches today are authorized by citizens' voluntary consent. Consent searches do not require probable cause, which means that an individual can be singled out based on an officer's hunch, or for no reason at all. The legality of these consent searches rests on the "voluntariness test," an assessment of whether a reasonable person would feel free to refuse the officer's request or walk away. This test requires third-party decision-makers to engage in a perspective-taking task. They must determine how it would feel to be approached by a police officer and confronted with a search request. A key insight from social psychology is that people tend to perform such tasks poorly. In particular, people underappreciate the role of situational pressure and feelings of discomfort when judging others' behavior. This insight suggests that outside observers may not fully recognize the distress citizens are likely to experience when considering the prospect of saying "no" to a police officer. In a series of experiments, the current research will assess whether these perspective-taking errors cause outside observers to systematically overestimate how free a reasonable person would feel to refuse a search request, and, accordingly, whether the voluntariness test is biased against citizens who have consented to a search. This research will introduce and validate a new experimental paradigm through which to examine the psychological task of assessing voluntariness. In this paradigm, one group of participants will be asked an intrusive and consequential search request, while another group of participants predicts how a reasonable person would respond to this request. It is hypothesized that participants in the "prediction" condition will underestimate compliance rates, despite having access to all the same information as participants in the "actual search" condition. In pilot studies, this paradigm generated large differences between predicted and observed compliance, indicating its promise for addressing long-standing questions related to the perceived and actual voluntariness of consent search. In addition to testing for main effects, the current research will test for moderation by features of the search request that might reduce the gap between perceived and actual voluntariness. Notifying participants that they could refuse a search without penalty, a frequently proposed solution by critics of consent search sometimes referred to as "Miranda-for-search," was not found to be effective at reducing this gap in pilot studies. Thus, the current research will explore alternative possible solutions, such as seeking written consent. Identifying features of the search request that effectively decrease the gap between perceived and actual voluntariness is essential for developing empirically supported policy recommendations related to changes to the law and/or to the practices used by law enforcement agents to obtain consent from citizens. This award reflects NSF's statutory mission and has been deemed worthy of support through evaluation using the Foundation's intellectual merit and broader impacts review criteria.