Consentual Language

Janice Nadler, Northwestern University School of Law and American Bar Foundation, and J. D. Trout, Loyola University of Chicago, have published "The Language of Consent in Police Encounters," in Oxford Handbook of Linguistics and Law (L. Solan and P. Tiersma eds.; Oxford University Press, forthcoming). Here is the abstract.

In this chapter, we examine the nature of conversations in citizen-police encounters in which police seek to conduct a search based on the citizen’s consent. We argue that when police officers ask a person if they can search, citizens often feel enormous pressure to say yes. But judges routinely ignore these pressures, choosing instead to spotlight the politeness and restraint of the officers’ language and demeanor. Courts often analyze the language of police encounters as if the conversation has an obvious, context-free meaning. The pragmatic features of language influence behavior, but courts routinely ignore or deny this fact. Instead, current Fourth Amendment jurisprudence assumes that the authority of armed police officers simply vanishes when they pose their desire to search as a question. We discuss empirical evidence suggesting that people are afraid to decline police officer requests to search, and conclude by discussing the social and psychological cost of the widespread use of consent searches.

Download the chapter from SSRN here.