Excerpted From: Antoinette Kavanaugh, Victoria Pietruszka, Danielle Rynczak and Dinisha Blanding, Taking the Next Step in Miranda Evaluations: Considering Racial Trauma and the Impact of Prior Police Contact, 47 Law and Human Behavior 249 (February 2023) (4 Footnotes/References) (Full Document)



In comparison to counterparts, Black pedestrians are stopped more frequently and forced to endure more intrusive stops. A similar racial disparity exists among motorists. Police are more likely to murder a Black motorist than one who is White. Compared with their light-skinned counterparts, darker-skinned Blacks are more likely to be stopped by the police.

Broadly speaking, there are two types of police stops: vicarious and direct. When the police stop you, you experience a direct stop; when you witness or learn about the police stopping someone else, you experience a vicarious stop. Around the globe, people experienced a vicarious police stop when they witnessed George Floyd begging for his life as the police murdered him. The emotional impact of vicarious police contact differs along racial lines. Eichstaedt and colleagues used Gallup poll data to compare the emotional states of nearly 50,000 U.S. citizens before and after Floyd's murder. Overall, they found a roughly 38% increase in anger and sadness following his murder, and the increase was greater in Minnesota, where Floyd's murder took place, than in other states. Further, the magnitude of the emotional response was different for Black Americans, who experienced a statistically significantly larger increase in depression and anxiety symptoms following Floyd's murder, compared with their White counterparts.

The increased emotional distress could be an example of the detrimental consequence of “linked fate.” Linked fate refers to the idea that seeing or learning of race-based discrimination or violence experienced by someone of your racial group increases your distress and concern that you or your loved ones could have been the victim of that act. The increase in emotional distress among Black Americans following Floyd's murder may also be a manifestation of racial trauma. Racial trauma or race-based stress refers to the psychological and emotional distress caused by experiencing or witnessing racial bias, ethnic discrimination, and systems of violence.

In the wake of George Floyd's murder at the hands of police, the American Psychological Association passed a resolution apologizing to people of color (POC) for the organization's role in promoting and perpetuating racism and failing to challenge racism and racial discrimination in the United States. Although this apology is needed and arguably long overdue, it is just the beginning. The next logical step is for forensic clinicians to reevaluate how they conduct evaluations and question whether the studies they rely on accurately reflect the lived experiences of people who are not White.

Using Miranda evaluations as an example, this article aims to help clinicians and, indirectly, researchers, take this critical next step. By focusing on the issue of racial trauma and prior police contacts, we provide guidance on how forensic clinicians can collect data that meaningfully reflect the lived experiences of the people being evaluated while providing courts with valuable information they can use to answer the legal issues at hand. We begin with an overview of the legal underpinnings of Miranda evaluations. This is followed by a discussion of how clinicians are currently instructed to conduct Miranda evaluations. From both a clinical and empirical perspective, the existing Miranda literature does not recognize the concept of racial stress or racial trauma and equates prior police contacts to narrowly defined (but easily counted) indicators, such as age at first arrest, the number of previous arrests, or the number of felony arrests. As Eichstaedt et al. demonstrated, this narrow definition does not reflect the lived experience of police contact and disregards the differential effects of police contacts based on the race of the person experiencing them. After exploring the concept of racial trauma, we provide a more ecologically valid definition of prior police contacts and discuss how to incorporate racial trauma and this ecologically valid definition into Miranda evaluations. Finally, we discuss research and policy recommendations.

Throughout this article, we use the word race as a social construct that groups people based on perceived shared characteristics and not a biologically meaningful concept. We intentionally use the racial category Black instead of African American to remind readers of the historical and contemporary impact of this social construct. For example, the impetus for racial trauma is not that a person identifies as African American, Haitian, or Bahamian but that the perpetrator of the racial discrimination views the person as Black. Similarly, as it pertains to police contact, we use the term Black and not African American to remind the reader of the systemic differential treatment by police based on the officer's perception of a person's race. Additionally, in the context of police contacts, we intentionally use the term Black to remind the reader of the role colorism plays in police contacts. Finally, when reviewing the literature, we use the term Black for consistency and readability and encourage readers to review the referenced literature with this in mind.

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In this section, we apply some of the recommendations made to psychologists and researchers outside of forensic psychology and then offer a policy recommendation directed at law enforcement. Expanding on their suggestions, we recommend that researchers and practitioners work with community partners to develop creative ways to increase the public's understanding of their Miranda rights (including the purpose of these rights, what asserting their rights means, and the consequences of waiving their rights) and how racial trauma and vicarious and direct police contact impact mental health and behavior. Among other things, this will involve seeking input from community partners about how to tailor the message to engage citizens of different ages.

In line with Buchanan et al.  and Galán et al., we recommend that researchers in the area of psychology and law collaborate with community partners at each step of the research process and budget to compensate their community partners. We believe that these collaborations will generate more ecologically valid research. For example, if researchers had conducted focus groups with racially and ethnically diverse community partners (who did and did not have direct experience with the legal system) and asked them to describe their prior experiences with the police, researchers would have a better understanding of the frequency and impact of vicarious and direct police contact for POC. They would also have a better understanding of racial differences in perceptions of the police and would have gained a better understanding of the inherent limits of equating prior police contacts to those contacts that resulted in an arrest or a court referral. Finally, we recommend that with the assistance of community partners, researchers should explore the following topics: (a) how parents' experiences of racialized trauma and vicarious and direct police contact influence what they tell their children about waiving their Miranda rights, (b) the relationship between understanding and appreciating one's Miranda rights and scores on an existing racial discrimination or racial trauma scale, and (c) what within-group variables influence these two topics.

On the basis of the work of the American Psychological Association Task Force on Race and Ethnicity Guidelines in Psychology, as well as the recommendations of Buchanan et al.  and Galán et al., we recommend that forensic researchers familiarize themselves with and apply the concepts of positionality and cultural humility to their work. If researchers do this, they will be less likely to treat racial differences as a noise variable to statistically control for and be more likely to consider the sociocultural factors that promote and maintain racial differences and to examine how those factors influence the larger legal issue at hand. In this vein, we recommend that forensic psychologists use qualitative research methods to amplify the lived experiences of POC.

We recommend that both practitioners and researchers work with police departments to develop policies and procedures that result in information or data that judges could consider in the TOC analysis. For example, forensic psychologists are trained to inform examinees of important concepts, such as the purpose of the evaluation and limits of confidentiality, and ascertain and document the examinees' understanding before conducting the evaluation. Psychologists could work with police to help them develop a similar procedure for documenting the suspect's understanding of their Miranda rights prior to waiving them.

Forensic psychologists should not miss the opportunity to respond when courts signal their desire for information regarding how experiences can shape behavior and psycholegal concepts. Although this article focuses on Miranda evaluations and, by extension, Miranda research, we encourage clinicians and researchers to consider what they can do to increase the ecological validity of all of their work and to ensure it reflects the lived experience of the people who are impacted by their work

Stephane Shepherd served as Action Editor.

Antoinette Kavanaugh (iD) https://orcid.org/0000-0003-2354-8936

Victoria Pietruszka (iD) https://orcid.org/0000-0001-5207-0834

Danielle Rynczak (iD) https://orcid.org/0000-0002-0125-2053

Dinisha Blanding (iD) https://orcid.org/0000-0002-8407-9451

Antoinette Kavanaugh and Victoria Pietruszka are are designated as co-first authors.