The Hidden Psychology of Constitutional Criminal Procedure

65 Pages Posted: 6 Sep 2015

Date Written: September 4, 2015


There is vast empirical evidence of the difference in men and women’s perceptions of and responses to police authority, their speech patterns and conduct. Yet these differences are rarely reflected in constitutional criminal procedure law, despite many of its rules hinging on a person’s manner of expression or subtleties of behavior. Similar evidence exists for the systematic impact of juvenile status and intellectual disability, but only modest and ad hoc consideration has been given to these factors. The result is that the “reasonable person” is actually implicitly a white male, adult and able-minded. His speech and conduct are treated as normal, and the different speech and conduct of women, juveniles, and the intellectually disabled is not incorporated into the doctrine. Consequently, those individuals have lowered rights under the law. The solution is simple yet profound: courts should account for apparent and relevant subjective characteristics in their reasonable person and totality of the circumstances analyses. Applied consistently, this solution would not only improve equity, but also would bring clarity to the doctrinal chaos that has resulted from the Supreme Court and lower courts’ erratic consideration of subjectivity throughout constitutional criminal procedure law.

Keywords: Constitutional Criminal Procedure, Gender, Juveniles, Mental Disability, Psychology, Consent, Waiver, Miranda, Interrogation, Police, Terry Stops

JEL Classification: K00

Suggested Citation

Cuevas, Jesse-Justin and Jacobi, Tonja, The Hidden Psychology of Constitutional Criminal Procedure (September 4, 2015). Available at SSRN: or

Jesse-Justin Cuevas

U.S. District Court for the Central District of California ( email )

United States

Tonja Jacobi (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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