Thursday, January 3, 2013
Mary Bowman (Seattle University School of Law) has posted Full Disclosure: Cognitive Science, Informants, and Search Warrant Scrutiny on SSRN. Here is the abstract:
This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate courts. These biases create room for informant falsehoods to go unchecked, with a likely disproportionate effect on minority communities.To address these effects, the article proposes a number of interconnected solutions, all revolving around the idea of full disclosure. The article proposes that police officers, magistrates, and judges all receive education about cognitive biases generally and the value of meaningful judicial review of warrants for combatting these biases. To facilitate this review, police should use a checklist when preparing search warrant applications to help them identify and disclose all relevant information. The article then suggests changes for judicial review of challenges to the accuracy and completeness of search warrant information. These revised standards should incentivize providing full disclosure and to ensure meaningful post-search review of magistrates’ decisions.