CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, December 4, 2023

Logan on Facial Emotion Reactions and the Fourth Amendment

Wayne A. Logan (Florida State University - College of Law) has posted Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine (77 Buffalo Law Review (forthcoming 2024)) on SSRN. Here is the abstract:
Police officers, like the citizens they serve, often believe that they can accurately and reliably discern emotions from the faces of individuals they encounter on street patrol. An officer, for instance, might interpret a facial expression to infer that an individual is surprised by the officer’s presence, which can serve as a factor justifying a seizure based on reasonable articulable suspicion of criminal activity. Judges, for their part, often defer to the facial emotion recognition (FER) wherewithal of police when assessing the sufficiency of police assertions of reasonable suspicion.

There is a major problem, however, with the accepted wisdom: it lacks empirical support. As a growing body of research shows, human faces are not like emojis or emoticons; not only is the purported connection between particular emotions and facial expressions weak, but facial expressions themselves are variously interpreted. Moreover, FER depends on multiple individualized factors such as the viewer’s age, gender, personality traits, life experiences, and emotional intelligence, and whether the viewer and viewed are of the same racial or ethnic background. Worse yet, conventional experimental studies advanced in support of FER suffer from major methodological problems, undercutting its averred accuracy and reliability.

This essay aims to explode the myth of FER and urges its judicial disregard in the assessment of whether police have reasonable suspicion to detain an individual. The intervention is as timely as it is important. In the immediate term, allowing continued judicial reliance on an empirically unfounded data point raises obvious constitutional concern. Longer term, reliance on FER is problematic because it is now being combined with artificial intelligence technology, soon to likely include roboticized policing and “emotiveillance” efforts more generally. To neutralize these threats, the essay urges that, like similar pseudo-sciences of the past, such as phrenology and physiognomy, FER should be relegated to the dustbin of history, rather than serving as an accepted basis for police seizures, with all the significant personal and social harms they impose.

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