The Illusion of Consent in Criminal Law

An excellent law review article was just published on “consent” in criminal law:  Kate Weisburd, “Criminal Procedure Without Consent,” 113  Cal.L.Rev. 697 (2025). The author would severely limit (if not eliminate) consent in criminal investigations, law and procedure.  Her thesis is based on the disparity in bargaining positions (between the individual – particularly those of color – and the police, prosecutors and courts) and the lack of real benefit to the person giving consent.  She suggests that there be a presumption of coercion and that the government agents not be allowed to obtain consent for intrusions that are not otherwise within their power to constitutionally require.

The body of the article explores the nuances of consent cases and policies.  This is something that is often glossed over in litigated cases.  Criminal practitioners routinely confront the fiction of the government justifying an otherwise unconstitutional intrusion with a claim of consent.  As we have argued many times, in reality “consent” is not free and voluntary in any meaningful way.  We have also compared the language (or non-language) that has been found to amount to consent to government intrusion with the strict requirements of specific language to invoke the right to remain silent or to counsel.  

The article did not mention the 2024 California Supreme Court decision (especially the majority “concurrence”) in People v. Flores (2024) 15 Cal.5th 1032 which quite forcefully discussed the reality of police encounters, particularly with people of color.  This article should be read in conjunction with Justice Evans’ opinion in Flores to inspire even more critical thinking about individual encounters that allegedly produce consent.