Consent Forms and Consent Formalism

Abstract

Law enforcement officers frequently use written consent forms to obtain permission for searches. Consent forms are pervasive — indeed, more than ninety percent of state police departments use them in at least some circumstances. Moreover, consent forms are popular — traditional advocates for civil liberties, such as the ACLU, have championed their use. Yet even though consent forms are an integral part of our law enforcement culture, virtually no scholarly literature has examined their use.

This Article is the first to provide an in-depth examination of the use of consent forms. Our analysis is founded on two original empirical data sets. The first is a survey of state police department practices in nearly every state, which demonstrates that officers routinely use consent forms. The second is a data set consisting of every published appellate case involving a consent form decided between 2005 and 2009, which reveals that fewer than 5% of defendants prevailed — less than half the rate at which defendants prevail in Fourth Amendment consent cases overall.

With these novel empirical data as our foundation, we draw three conclusions. First, we argue that a signed consent form does not signify that a suspect rendered consent voluntarily. The form does little to improve a suspect’s understanding of her rights, particularly when the suspect is poorly-educated, frightened, or not fluent in English. Second, we argue that consent forms do not prevent coercion. If an officer can use coercion or other psychological tactics to obtain verbal consent, surely she can also do so to obtain a signature on a consent form. And finally, we conclude that consent forms implicitly discourage courts from closely examining whether consent was voluntary because the forms provide the illusion of voluntariness. That is, obtaining a signed consent form effectively insulates law enforcement from later invalidation of the search on voluntariness grounds. In light of these problems, we urge that police departments reexamine their use of consent forms and that courts rethink the way in which they evaluate consent forms.

The Article concludes with four proposals to remedy the problems with consent forms. First, courts should state explicitly that a signed consent form does not automatically indicate that an alleged consent was in fact voluntary. Second, courts should analyze consent forms using a more searching inquiry into voluntariness imported from contract law. Third, rather than advocating the use of consent forms, civil rights organizations should use their resources to educate people about their rights. That way, people need not rely on a consent form to educate them after a situation has already arisen. And finally, these organizations should press law enforcement entities to use audio and video recording equipment to create a more accurate and complete account of an instance of alleged consent.

Appendices to article are available from authors on request.

Keywords: criminal law, criminal procedure, Fourth Amendment, consent, consent forms, search, seizure, voluntariness, coercion