Fact and Fiction in Constitutional Criminal Procedure

42 Pages Posted: 23 Mar 2015 Last revised: 24 Aug 2022

See all articles by Kathryne M. Young

Kathryne M. Young

The George Washington University Law School

Christin Munsch

University of Connecticut

Date Written: 2014


This Article empirically examines questions of rights knowledge and rights assertion in order to better understand the processes that contribute to people's assertions of their Fourth, Fifth, and Sixth Amendment rights. Using quantitative and qualitative results from survey data, we test some of the assumptions about rights knowledge and rights assertion that are embedded in United States Supreme Court opinions. Our findings suggest that not only do people, by and large, not know their rights, but that when they try to figure out which rights they possess, the current procedural regime leads them to perform even worse than chance. Rights knowledge is not correlated with demographic factors such as race, social class, or even prior experience as a subject of criminal investigation.

Furthermore, we find that a sense of personal efficacy in police-citizen interactions, specifically the willingness to assert rights, is positively correlated with social position. That is, people in higher social classes, and who possess more cultural capital, are willing to assert their rights more frequently than people in lower social classes, and who have less social capital. This finding challenges the framework of rights assertion as a decision-making process in which every citizen has, in practice, an opportunity to use the rights she possesses. By assuming that all citizens have the agency necessary to assert their rights, the Court ensconces inequality into criminal procedure doctrine, creating a regime that gives some groups of people greater practical access to their rights. Since rights invocation during police-citizen encounters is one selection mechanism for determining who enters the criminal justice system in the first place, our findings point to a hidden source of inequality in American criminal justice, suggesting new directions for research and policy.

Keywords: rights, criminal procedure, rights consciousness, police, policing, Fourth amendment, Fifth amendment, Sixth amendment, Search and Seizure, criminal justice, class, social class, race, race and crime

Suggested Citation

Young, Kathryne and Munsch, Christin, Fact and Fiction in Constitutional Criminal Procedure (2014). Kathryne M. Young and Christin L. Munsch, "Fact and Fiction in Constitutional Criminal Procedure," 66 South Carolina Law Review 445–490 (2014). , Available at SSRN: https://ssrn.com/abstract=2583472

Kathryne Young (Contact Author)

The George Washington University Law School ( email )

2000 H St NW
Washington, DC

Christin Munsch

University of Connecticut ( email )

Storrs, CT 06269-1063
United States

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