Wednesday, January 15, 2020
Andreas Kuersten (Georgetown University - Center for Clinical Bioethics) has posted Tasing the Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, and the Validity of Subsequent Constitutional Rights Waivers (William & Mary Bill of Rights Journal, Forthcoming) on SSRN. Here is the abstract:
Conducted electrical weapons (CEWs) — the most famous and widely used of which are offered under the TASER brand — are ubiquitous tools of law enforcement, carried by the vast majority of law enforcement officers and routinely deployed. These devices subdue targets by coursing electric current through their bodies, thereby causing individuals to collapse as their muscles involuntarily contract. Yet this method of operation has raised concerns—voiced by researchers, advocates, and criminal defendants alike — that CEWs influence cognitive capacity in addition to muscle function as electric current potentially transits through the brain via the central nervous system. In the context of an arrest, this implicates criminal suspects’ ability to understand Miranda warnings given by officers and to competently waive their constitutional rights against self-incrimination and to counsel. Some have gone so far as to recommend a mandated delay between when suspects are tased and when officers may administer Miranda warnings in order to protect individuals’ rights. Intimate understandings of the law of Miranda v. Arizona and the true effects of CEWs on cognitive capacity are critical for determining the prudence of this recommendation, and have broader implications for the criminal justice system.
This Article is the first to conduct a thorough survey and analysis of the law of Miranda with regard to how courts determine whether individuals’ waivers of their constitutional rights following Miranda warnings are knowing, intelligent, and voluntary. Ultimately, cognitive capacity is an important factor, but, in examining this faculty, courts generally rely most heavily on subjective indicia of mental acuity manifested at the time Miranda warnings were administered — e.g., reasoning ability, tone, bodily movements, and temperament. Objective indicia of mental acuity — i.e., those shown through empirical research to signal cognitive ability, such as age, education, intelligence, and blood alcohol content — are routinely treated as less valuable than subjective indicia, particularly when the two are in opposition. This presents a high bar for empirical research on the cognitive effects of CEWs to scale in order to meaningfully influence court determinations of the legitimacy of rights waivers.
This Article is also the first to conduct a comprehensive survey and examination of the literature addressing the cognitive effects of CEWs and compare these effects to those of other forceful arrest methods. Studies reveal that, rather than having a unique effect on cognition through some interaction between electric current and the brain, CEWs actually appear to impact mental faculties through a general stress effect, which other forceful methods of arrest have as well — e.g., physical altercation, police dog attack, and pepper spray. Therefore, an exceptional rule requiring a delay in administering Miranda warnings to suspects subject to CEWs does not seem appropriate. Nevertheless, the literature does show forceful arrest methods meaningfully affecting individual mental acuity. While more research is necessary to more finely deduce the extent of these impacts, they appear to be such that courts should consider a forceful arrest close enough in time to the administration of a Miranda warning to be a negative factor in assessing defendants’ competence to waive their rights, similar to evidence indicating low intelligence or intoxication at the time of waiver.