Malingering is the intentional (conscious) fabrication or gross exaggeration of symptoms of mental disorders in order to achieve an identifiable goal. Mental health professionals who conduct forensic evaluations should assess the examinee’s response style, and consider the possibility of malingering, given the external motivation for many examinees to appear impaired. Examinees are motivated to appear impaired for different reasons, depending on where they are in the legal process and setting of the forensic evaluation. For example, pre-trial examinees being evaluated for competency to stand trial and/or criminal responsibility might be motivated to appear impaired because they want to avoid criminal prosecution. In addition, individuals at the post-adjudication phase might be motivated to appear impaired with the motivation to be transferred and remain at a psychiatric hospital rather than at a jail setting. Similarly, those involved in civil litigation might malinger deficits for financial gain and/or to avoid work related responsibilities.
Base Rates of Malingering
Given the above-mentioned considerations, malingering is not uncommon in criminal settings. For example, prevalence of malingering in criminal forensic settings ranges from 3.5 to 56 %. Individuals might feign or malinger any type of symptom of mental illness with psychotic symptoms being the most common. Individuals in criminal forensic settings might also feign or exaggerate neurocognitive deficits. Studies suggest that feigned cognitive impairment in forensic psychiatric settings can range from 13 to 17 percent.
Research suggests that the exaggeration of cognitive impairment is not uncommon amongst individuals with mild brain injury who are seeking financial compensation for their injuries. For example, Binder (1993) found that 33% of individuals with mild brain injury who were seeking financial compensation demonstrated exaggerated cognitive deficits on neuropsychological testing. Results from Larrabee (2000) found that the occurrence of exaggeration amongst mild head injury litigants seeking financial compensation was ten times higher compared to the base rate of actual cognitive deficits in their sample.
Increased Courtroom Scrutiny of Clinical Methods
Many have argued that the methods used by clinicians are being increasingly scrutinized by courts across jurisdictions given the admissibility standards set forth in Frye and Daubert.
Some jurisdictions have adopted the Daubert standards, or an equivalent, in which there might be more courtroom scrutiny in comparison to jurisdictions that use the Frye standard. The Daubert case (Daubert v. Merrell Dow, 509 U.S. 579; 1993) was a case in which plaintiffs alleged that the children’s birth defects had been caused by the mother’s ingestion of Bendectin during pregnancy. The Supreme Court in the Daubert case found that the “general acceptance” test of Frye is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence (FRE). The Supreme Court in the Daubert case determined that any and all scientific testimony or evidence should be relevant and reliable. In determining the relevancy and reliability of scientific evidence, the Supreme Court called for Judges to use their discretion in evaluating whether the methods of the expert are testable and falsifiable, have been subjected to peer review and publication, have a known potential error rate, and are generally accepted within a relevant scientific community.
Given the admissibility standards for expert testimony set forth by Frye and Daubert, clinicians who perform forensic evaluations, in which malingering might be an issue, should pay close attention to the empirical support and relevance of their methods. They should use a malingering test that has been empirically supported, and one that is relevant to the particular examinee. Following these guidelines should be independent of the standards that courts use to consider the admissibility of expert testimony because using empirically validated measures is important in following best clinical practice in the assessment of malingering, and in providing clinicians with normative data for obtaining the most accurate diagnosis. Finally, a large amount of research has been conducted over the past two decades in the area of malingering assessment to help guide clinicians and improve clinical accuracy. Clinicians and attorneys who are involved in criminal and civil forensic evaluations should be familiar with this body of literature.