POST-TASER™ CONFESSION: IS A WAIVER KNOWING AND VOLUNTARY?
by Jack Ryan, Attorney
©2016 Jack Ryan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
A study conducted by Drexel University and Arizona State University has reached a conclusion that officers should wait an hour after a TASER™ deployment before Mirandizing a suspect in order to give the suspect a recovery period in order to ensure that their waiver of rights is knowing and voluntary. [i]
A summary of the study reported:
“New research from a first-of-its-kind human study by Drexel University and Arizona State University reveals that the burst of electricity from a stun gun can impair a person’s ability to remember and process information. In a randomized control trial, participants were subjected to Taser shocks and tested for cognitive impairment. Some showed short-term declines in cognitive functioning comparable to dementia, raising serious questions about the ability of police suspects to understand their rights at the point of arrest. [ii]“
The summary described the method of the study that used four groups of individuals. A group of 37 participants did nothing prior to be being tested for levels of understanding; 32 people hit a punching bag to simulate the “heightened physical state one might expect in a tense police encounter”; 35 participants did no activity but received a 5-second deployment before being tested and 38 struck the punching bag and received the five second deployment before testing.
The participants’ ability to mentally understand was tested prior to participation, immediately after the deployments, an hour later, and then a week later and then scored based on their level of cognitive ability.
According to the study, the subjects who had been subjected to the TASER™ deployment had a temporary but significant disruption in their ability to understand, indicating that based on the scoring of the tests, the subjects’ disruption was comparable to that of a 79-year-old. The study also noted that some of the individuals also suffered a detrimental impact on the ability to concentrate; anxiety, and a feeling of being overwhelmed.
The researchers noted that the test subjects were healthy young adults who were sober and accustomed to test taking. It should also be noted that the subjects who were subjected to TASER™ received the probe mode through the attachment of alligator clips with one on their shoulder and one on their lower back.
The researchers concluded: “The findings from this study suggest that people who have been shocked with a TASER™ may be unable to understand and rationally act upon his or her legal rights, and may be more likely to waive their Miranda rights directly after TASER™ exposure or to give inaccurate information to investigators. These decisions can have profound impact on an eventual judicial finding of guilt or innocence.”
As a result the researchers are suggesting that officers wait 60 minutes after deployment before Mirandizing a suspect.
- Without taking a position on the validity of this new study-it would be suggested that officers allow a suspect sufficient time to recover from the TASER™ deployment before attempting to Mirandize and question the suspect.
- The burden to show that a waiver of 5th Amendment rights was knowing and voluntary rests with law enforcement/prosecution. Thus, unless there is some articulable necessity to start questioning the subject, officers should consider waiting 60 minutes before questioning. (Note-it is recognized that in a DUI case where the process includes state rights, waiting may not be an option).
- Officers should document the time between the TASER™ deployment and the reading of Miranda. As always, documentation should indicate whether the TASER™ was used in the drive-stun or probe mode.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] TASER® Exposure and Cognitive Impairment Implications for Valid Miranda Waivers and the Timing of Police Custodial Interrogation, Robert Kane and Michael White 2015 American Society of Criminology, Criminology and Public Policy Volume 15 Issue 1 (2015).