[Todd Zywicki, October 12, 2005 at 9:06am] Trackbacks
Reasonable Suspicion and Mere Hunches:

My colleague Craig Lerner has a brilliant new piece exploring the implications of modern cognitive science for the idea of "hunches" by experienced police officers and the dilemma they present for the modern police system. As he puts it in the Abstract to his new article "Reasonable Suspicion and Mere Hunches":

In Terry v. Ohio, Earl Warren held that police officers could temporarily detain a suspect, provided that they could articulate the "reasonable inferences" for their suspicion, and not merely allude to a "hunch." Since Terry, the American legal system has discounted the "mere" hunches of police officers, requiring them to articulate "specific" and "objective" observations of fact to support their decision to conduct a stop and frisk. The officer's intuitions, gut feelings and sixth sense about a situation are all disallowed.

This dichotomy between facts and intuitions is built on sand. Emotions and intuitions can be reasonable, and reasons are often predicated on emotions. Even as courts have, over the past two generations, grown more dismissive of hunches, there has been a counter-revolution in the cognitive sciences. Emotions and intuitions are not obstacles to reason, but indispensable heuristic devices that allow people to process diffuse, complex information about their environment and make sense of the world. If the legal rules governing police conduct are premised on a mistaken assumption about human cognition, can one craft a doctrine of policing that credits the wisdom of hunches? Can the legal system defer to police officers' intuitions without undermining protections against law enforcement overreaching?

This article argues that, to some extent, judicial skepticism about police hunches can and should be abandoned. As a practical matter, the current legal regime substitutes palliative euphemisms for useful controls on police discretion. When an energetic police officer has a hunch that something is wrong and action is imperative, the officer will simply act. Months will pass before a suppression hearing, and by then it will be a simple matter to reverse-engineer the objective "reasons" for the stop - e.g., "I saw a bulge." The legal system in practice simply rewards those officers who are able and willing to spin their behavior in a way that satisfies judges, while it penalizes those officers who are less verbally facile or who are transparent about their motivations. It would be preferable if politically accountable authorities joined the courts in monitoring police practices. The focus should be less on what police say after the fact and more on what they do - that is, how successful police officers are in catching criminals and how respectful they are of all citizens.

The point will be familiar to readers of Hayek and Polanyi who draw on the notion of tacit knowledge, and in particular, the notion that much knowledge that derives from experience, tradition, and habit is unarticulated knowledge which is no less valuable or important for being unarticulated or unarticulable. As Lerner notes, the recognition that such knowledge exists places a Court in the position of either excluding this valuable knowledge from the adjudication, or forcing experienced police officers to falsely articulate an untrue explanation for what is fundamentally unarticulated knowledge.

Craig has identified a neat puzzle here.

Update:

Doh--I initially forgot to link to the paper. I've corrected it now.

Related Posts (on one page):

  1. Reasonable Suspicion and the Exclusionary Rule:
  2. Reasonable Suspicion and Mere Hunches:
Comments
[Orin Kerr, October 12, 2005 at 11:39am] Trackbacks
Reasonable Suspicion and the Exclusionary Rule: I very much enjoyed reading Craig Lerner's new paper, Reasonable Suspicion and Mere Hunches, linked to earlier today by co-blogger Todd, but I think it overlooks the critical reason why courts have required objective, articulable facts to conduct a Terry stop. As I read Craig's paper, he argues that the requirement of ex ante articulable facts should be dropped, and replaced with an ex post examination of whether the officer's conduct was reasonable based on the entirety of the circumstances. The entirety of the circumstances should factor in whether the officer's behavior was effective in identifying criminal conduct: Specifically, if the police are acting on hunches but catching lots of bad guys, the courts should let them act on hunches.

  The problem with this argument, I think, is that courts regulate Terry stops almost exclusively through the exclusionary rule. This results in a selection bias problem: Of all the Terry stops that the police conduct, the ones that appear in appellate opinions are the the subset in which the stop led to an arrest and conviction. These are the cases in which the suspect was guilty, and the officer was right. Civil cases alleging improper Terry stops are theoretically possible, but almost never brought: qualified immunity makes such cases very hard to win, and damages usually are very low. (Lerner alludes to the possibility of a selection bias on page 72, but only in the course of cautioning the reader as to why we can't conclusively say that officer hunches are almost always right based on a reading of published cases.)

  My sense is that the current law of Terry stops can be explained in large part as a response to this selection bias. Judges require objective evidence rather than "mere hunches" because they realize that they only see the cases in which "mere hunches" proved correct. It's hard to craft a rule on that basis: If you as a judge or Justice only see the subset of successful stops, then you'll have no idea how to apply the law to permit stops that have a high likelihood of success but prohibit stops that have a low likelihood of success. The judges don't get to see any empirical evidence of the unsuccessful stops, as those cases don't normally lead to litigation. This context makes it quite hard for judges to perform the kind of ex post reasonableness analysis that Lerner seeks, and I think may explain why current law sticks to the requirement of objective and articulable facts ex ante. It's not an ideal solution, but it's probably better than the realistic alternatives.

  That's my tentative reaction, at least. I just skimmed the piece, so it's quite possible that I'm missing something important. And as Todd says, it's a very thought-provoking paper.

  UDPATE: I wonder what Justice Lammers thinks of Lerner's proposal.

Related Posts (on one page):

  1. Reasonable Suspicion and the Exclusionary Rule:
  2. Reasonable Suspicion and Mere Hunches:
Comments