Cardozo Law Review
Abstract
There is extensive empirical evidence establishing the difference in men's and women's speech patterns, conduct, and perceptions of, and responses to, police authority. 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 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 diminished 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's and lower courts' erratic consideration of subjectivity throughout constitutional criminal procedure law.
Disciplines
Criminal Law | Criminal Procedure | Law | Law and Gender
Recommended Citation
Jesse-Justin Cuevas & Tonja Jacobi,
The Hidden Psychology of Constitutional Criminal Procedure,
37
Cardozo L. Rev.
2161
(2016).
Available at:
https://larc.cardozo.yu.edu/clr/vol37/iss6/5