Rights Consciousness in Criminal Procedure: A Theoretical and Empirical Inquiry

Abstract

This article’s overarching purpose is to serve as an initial theoretical and empirical step in applying rights consciousness inquiry to the criminal procedure context. First, building on previous work within the legal consciousness and rights consciousness traditions, I discuss the ways in which attention to criminal procedure can inform our understanding of rights consciousness and enumerate differences between the way rights consciousness approaches civil law and the ways it might approach criminal law. Additionally, I suggest that understanding the relationship between people’s subjective impressions of procedures and procedures’ legal and moral validity offers a novel means of studying procedure that I term "procedural rights consciousness." In the second part of the article, I report results of two studies designed as first empirical steps in applying rights consciousness as the first part suggests. My findings indicate that not only do people lack knowledge about their rights in criminal investigations but they also think about these rights in patterned ways that reflect a method of understanding law characterized by "lay jurisprudence" reasoning, in which culturally prevalent "tenets" are applied to specific situations. This mechanism often leads people to erroneous conclusions about the rights they possess. The final part of the article sets out an agenda for further rights consciousness research.

Keywords: criminal procedure, rights, rights knowledge, rights assertion, rights consciousness, police