Malingering

• Author: John Matthew Fabian
• Pages: 57-78

57

Chapter

All too often, criminal defense lawyers hear that our clients with mental dis-

abilities are “faking it” or malingering. Indeed, it would be more accurate to

say that our clients are doing just the opposite; that they are masking their

disability. For instance, a client who grew up with an intellectual disability

may have been laughed at by kids at school and thus, he tries to appear

as streetwise as possible. Similarly, a client with a mental illness may have

sufficient appreciation of the stigma against mental illness and the last thing

she wants to be known as is “crazy.”

Criminal defense lawyers must understand the myths and realities of

malingering. In this chapter, Dr. John Fabian explains that experts have a

variety of ways to detect malingering including psychological testing. It is dif-

ficult for a client to malinger over a period of time, and thorough interviewing

as well as deep review of collateral sources is vital. But assessing malinger-

ing is complex and nuanced, and may be influenced by many factors includ-

ing the context of the interview, the potential consequences of conviction,

and the interplay of various mental disabilities and behavioral characteristics.

• • •

The Diagnostic and Statistical Manual of Mental Disorders, 5th edition

(DSM-5) defines malingering as the intentional production of false or

grossly exaggerated physical or psychological problems. The reason this

term is important within criminal forensic, psychological, psychiatric, and

neuropsychological contexts is that criminal defendants have a personal

stake in the outcome of their legal proceedings. One of the factors that

Malingering

John Matthew Fabian

5

58 • Representing People with Mental Disabilities

would be a motivator is the desire to evade criminal prosecution by inten-

tionally fabricating psychological/psychiatric and neuropsychological/

neurological symptoms and impairments. The focus of this chapter will

be to provide an analysis of the definition, epidemiology, and assessment

of malingering in criminal forensic psychological and neuropsychological

assessment.

Criminal forensic assessments by psychiatrists focus primarily on clin-

ical interviews as well as review of collateral information such as police

reports, victim and witness statements, and even interviewing collateral

informants such as the defendant’s family members, other witnesses,

and so on. Forensic psychologists emphasize the same type of interviewing

assessment techniques, but also engage in formal psychological assessment

including testing that will examine specific psychiatric symptoms such as

schizophrenia or depression and other mental illnesses, psychological func-

tioning, as well as the validity of symptom self-report. The forensic psy-

chologist may also utilize other types of instruments described below that

have focused formally on the assessment of malingered psychopathology.

By contrast, the forensic neuropsychologist may also administer psycho-

logical testing as noted above, but he or she may examine the defendant

with neuropsychological tests that assess brain and neurocognitive func-

tioning, as well as analyze whether the examinee is putting forth good

effort. Many offenders have both mental illness and neurocognitive brain

dysfunction, and the expert witness and especially the neuropsycholo-

gist, should examine for both malingering of mental illness and cognitive

deficits.

Base Rates of Malingering

Forensic settings display higher base rates of malingering than clinical

ones. A base rate is the probability of a particular outcome such as malin-

gering, to occur within a particular population such as criminal defen-

dants. To demonstrate the prevalence of malingering in forensic settings, a

study reported that 33,531 cases seen by members of the American Board

of Clinical Neuropsychology during a one year period estimated probable

malingering symptom exaggeration at 30 percent disability evaluations,

29 percent personal injury evaluations, 19 percent criminal evaluations,

and 8 percent of medical cases. Germane to this chapter, the prevalence