Tasing the Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, and the Validity of Subsequent Constitutional Rights Waivers

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