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Probable Cause, Probability, and Hindsight
Jeffrey J. Rachlinski
Chris Guthrie
Andrew J. Wistrich

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 paper, we present of 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.

The Fourth Amendment’s prohibition against unreasonable searches and seizures creates a decision-making dilemma for judges.1 It requires that judges supervise police investigations. The centerpiece of the Fourth Amendment’s protection of personal privacy lies in the requirement that is that the police must get permission to conduct such searches by obtaining a warrant from a judge.2 But in the common circumstance in which an exigency prevents a police officer from obtaining a warrant, the judge must assess probable while knowing that the search was successful.3 Decades of research on judgment in hindsight suggest that such judgments will be biased, as people cannot suppress the influence of known outcomes on their judgments— a phenomenon known as


The Fourth...
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