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http://ssrn.com/abstract=1877125
 
 

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Probable Cause, Probability, and Hindsight


Jeffrey J. Rachlinski


Cornell Law School

Andrew J. Wistrich


California Central District Court

Chris Guthrie


Vanderbilt University - Law School

July 2, 2011

Vanderbilt Public Law Research Paper No. 11-25
Vanderbilt Law and Economics Research Paper No. 11-38

Abstract:     
When judges assess probable cause, they must do so either in foresight (when determining whether to issue a warrant) or in hindsight (when determining whether to allow the admission of evidence obtained without a search warrant). Although the legal standard for probable cause is the same, and the facts that might support cause are the same, judges who assess probable cause in hindsight invariably know whether a search produced incriminating evidence or not. Research on the hindsight bias suggests that judges will be unable to set aside this knowledge and judge probable cause as if they were working in foresight. In this paper, we present of three experiments in which we asked 900 state and federal judges to make judgments of probable cause either in foresight or in hindsight, in hypothetical cases. Surprisingly, we found that that judges make similar rulings on probable cause in foresight and in hindsight. We also found that hindsight appears to cloud judges’ abilities to assess the likely outcome of the search, but hindsight does not influence their legal judgments.

Number of Pages in PDF File: 27

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Date posted: July 3, 2011  

Suggested Citation

Rachlinski , Jeffrey J. and Wistrich, Andrew J. and Guthrie, Chris, Probable Cause, Probability, and Hindsight (July 2, 2011). Vanderbilt Public Law Research Paper No. 11-25; Vanderbilt Law and Economics Research Paper No. 11-38. Available at SSRN: http://ssrn.com/abstract=1877125 or http://dx.doi.org/10.2139/ssrn.1877125

Contact Information

Jeffrey John Rachlinski (Contact Author)
Cornell Law School ( email )
524 College Ave
Myron Taylor Hall
Ithaca, NY 14853
United States
607-255-5878 (Phone)
607-255-7193 (Fax)
Andrew J. Wistrich
California Central District Court ( email )
Los Angeles, CA 90012
United States
Chris Guthrie
Vanderbilt University - Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-6823 (Phone)
615-322-6631 (Fax)
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