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Probable Cause, Probability, and Hindsight
Author(s) -
Rachlinski Jeffrey J.,
Guthrie Chris,
Wistrich Andrew J.
Publication year - 2011
Publication title -
journal of empirical legal studies
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.529
H-Index - 24
eISSN - 1740-1461
pISSN - 1740-1453
DOI - 10.1111/j.1740-1461.2011.01230.x
Subject(s) - hindsight bias , futures studies , warrant , debiasing , psychology , skepticism , actuarial science , social psychology , economics , epistemology , statistics , philosophy , mathematics , financial economics
When judges assess probable cause, they must do so either in foresight (when determining whether to issue a warrant) or in hindsight (when determining whether to allow the admission of evidence obtained without a search warrant). Although the legal standard for probable cause is the same, and the facts that might support cause are the same, judges who assess probable cause in hindsight invariably know whether a search produced incriminating evidence or not. Research on the hindsight bias suggests that judges will be unable to set aside this knowledge and judge probable cause as if they were working in foresight. In this article, we present three experiments in which we asked 900 state and federal judges to make judgments of probable cause either in foresight or in hindsight, in hypothetical cases. Surprisingly, we found that that judges make similar rulings on probable cause in foresight and in hindsight. We also found that hindsight appears to cloud judges' abilities to assess the likely outcome of the search, but hindsight does not influence their legal judgments.