AuthorJohn Matthew Fabian
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
John Matthew Fabian
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
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
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

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