Neuroscience and the Potential Need for a New Bright‐Line Rule Concerning Miranda Waivers After CED Exposure

• Author: Henry F. Fradella
• DOI: http://doi.org/10.1111/1745-9133.12179
• Date: 01 February 2016
• Published date: 01 February 2016

POLICY ESSAY

TASER EXPOSURE AND COGNITIVE

IMPAIRMENT

Neuroscience and the Potential Need for a

New Bright-Line Rule Concerning Miranda

Waivers After CED Exposure

Henry F.Fradella

Arizona State University

The Self-Incrimination Clause of the Fifth Amendment to the U.S. Constitution

guarantees that no person “shall be compelled in any criminal case to be a witness

against himself.” This so-called negative right gained international prominence

as a result of the U.S. Supreme Court’s landmark decision in Miranda v. Arizona (1966).

Miranda recognized that custodial interrogations inherently generate “compelling pressures

which work to undermine the individual’s will to resist and to compel him to speak where

he would not otherwise do so freely” (pp. 467–468). Tosafeguard the privilege against self-

incrimination during custodial interrogations, the Court mandated that law enforcement

officers advise suspects of their rights to remain silent. Miranda also mandated that suspects

be informed that they have the right to have an attorney present during questioning—even if

they could not afford one—effectively creating “aFifth Amendment right to counsel during

pre-indictment custodial interrogation that is distinct from the right to counsel assured by

the Sixth Amendment” (Kuller, 1986: 260).

The Miranda decision specifically stated that after law enforcement personnel warned a

suspect of his or her rights, the suspect “may knowingly and intelligently waive these rights

and agree to answer questions or make a statement. But unless and until such warnings

and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of

interrogation can be used against him” (Miranda, 1966: 479).

The dissenting justices in Miranda feared that the required warnings would severely

impact the ability of police to investigate and solve crimes because if suspects were aware

of their rights, they would not voluntarily choose to waive them. One justice predicted

I thank Richard Leo for his thoughtful insights on this policy essay. Direct correspondence to Henry F. Fradella,

School of Criminology and Criminal Justice, Arizona State University, Mail Code 4420, 411 North Central

Avenue, Suite 600, Phoenix, AZ 85004-0685 (e-mail: Hank.Fradella@asu.edu).

DOI:10.1111/1745-9133.12179 C2015 American Society of Criminology 117

Criminology & Public Policy rVolume 15 rIssue 1