Willing Suspects and Docile Defendants: The Contradictory Role of Consent in Criminal Procedure

Abstract

“Consent” is ubiquitous in our criminal justice system. Its centrality highlights the ironic disjuncture between constitutional principle and the day-to-day practice of criminal justice. The Constitution imposes strict restrictions on the State’s ability to investigate and prosecute crimes – the warrant requirement and right to jury trial are examples. But, our criminal justice system depends on individuals “consensually” relinquishing those very protections every day. The Supreme Court has encouraged this dependence by deeming an individual’s consent valid even when the State pressures her to give it. The police regularly rely on individuals consenting to searches when there is no probable cause. Suspects routinely confess to crimes when it is not in their interests to do so. And defendants routinely plead to charges that would not yield conviction following trial. This article uses political theory to account for consent’s centrality in our criminal justice system and to challenge the Court’s broad interpretation of the concept in the search, confession, and plea contexts. The Court has inappropriately relied on a kind of “fictional consent” in criminal procedure. This not only produces unfair results in individual cases, it threatens the democratic legitimacy of our criminal justice system. Bringing constitutional principle and criminal justice practice into greater harmony will require more stringent rules of consent than we currently have. The article advances a framework for reform.

Keywords: Criminal procedure, consent, search, seizure, plea bargain, political theory