The Right to Refuse and the Obligation to Comply: Challenging the Gamesmanship Model of Criminal Procedure

Abstract

The article aggressively critiques the gamesmanship model of criminal procedure. The model defines rules that place the impetus of protecting rights on defendants, applies those rules so that the loss of rights is understood as the product of defendant-centered decisions rather than police conduct, and concludes that, because the result is the product of the defendant's own choices, the outcome is adequately protective of individual rights.

The article uses as its context the consensual encounter, defined as an interaction between police and an individual in which a reasonable person would feel free to decline the officer's request or terminate the encounter. The courts, by defining the encounter in terms of citizen rather than officer behavior, by applying the standard to deem most encounters consensual, and by blaming the defendant's conduct for the ultimate loss of rights, fully subscribe to the gamesmanship model. The article contrasts this right to refuse jurisprudence, with its focus on the right of individuals to decline police interactions, with statutes and caselaw that suggest an affirmative obligation to comply with police direction.

Ultimately the gamesmanship model has the damaging result of advocating noncooperation with law enforcement as preferred behavior. Creating a model that privileges the refusal to cooperate with police runs the risk of replacing societal norms of cooperation and submission with more dangerous and socially undesirable norms. The article concludes that a standard based on police wrongdoing rather than citizen failure would better accomplish judicial oversight of police conduct in the street encounter.

Keywords: gamesmanship model