Probable Cause, Probability, and Hindsight

27 Pages Posted: 23 Nov 2011

See all articles by Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Cornell Law School

Chris Guthrie

Vanderbilt University - Law School

Andrew J. Wistrich

California Central District Court

Multiple version iconThere are 2 versions of this paper

Date Written: December 2011

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 article, we present 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.

Suggested Citation

Rachlinski, Jeffrey John and Guthrie, Chris and Wistrich, Andrew J., Probable Cause, Probability, and Hindsight (December 2011). Journal of Empirical Legal Studies, Vol. 8, pp. 72-98, 2011. Available at SSRN: https://ssrn.com/abstract=1963630 or http://dx.doi.org/10.1111/j.1740-1461.2011.01230.x

Jeffrey John Rachlinski (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-5878 (Phone)
607-255-7193 (Fax)

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)

Andrew J. Wistrich

California Central District Court ( email )

Los Angeles, CA 90012
United States

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