The Importance of Assessing Malingering in a Forensic Context

Malingering is defined as "the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives." (Introduction to Criminal Forensic Assessment: Malingering). In a forensic setting, malingering is used mainly for two purposes: faking insanity to use the "Not Guilty by Reasons of Insanity" defense, or faking some kind of psychotic illness or mental retardation that would be a mitigating factor for sentencing. Mitigating factors can allow the defendant to receive a much lighter sentence, or to avoid the death penalty. Avoiding the death penalty is one of the most prevalent uses of psychotic illnesses or mental retardation as mitigating factors. It is important to assess the likelihood of malingering in all suspects who undergo any type of evaluation in the forensic setting. Motivation for malingering is high in these situations, and therefore must be examined for all forensic evaluations.

Although there are other uses for malingering, it appears to be most prevalent in forensic settings (Introduction to Criminal Forensic Assessment: Malingering). The strong external incentives are one reason for the prevalence of malingering in forensic evaluations. In a criminal trial, the defendant can be recognized as "NGRI" (Not Guilty by Reasons of Insanity). If a jury concludes that the defendant is NGRI, the defendant is home free. They do not have to serve any time for the crime they committed, because the jury has proclaimed them to be "Not Guilty". Although many who are given a NGRI verdict are committed to psychiatric hospitals, and remain there for a period of time determined by the staff (Wrightsman & Fulero, 2005), most people would prefer a psychiatric hospital to a prison cell. This is one strong incentive for malingering a psychiatric illness in a forensic assessment.

After a criminal has been determined "Guilty" of a serious crime, a sentencing phase is held to determine the punishment for his crime. During this phase, attorneys from the prosecution present aggravating factors (circumstances that make the crime even less acceptable), and attorneys from the defense present mitigating factors (any evidence that the criminal was not fully competent, or that they feel remorse). When cases that are, by law, punishable by the death penalty are presented for sentencing, defense attorneys will examine all possibilities for mitigating factors. Therefore, candidates for the death penalty are subject to rigorous forensic assessments. A common mitigating factor in these death eligible cases is mental retardation. The possibility of avoiding the death sentence by faking mental retardation or a psychotic illness is very attractive, and is therefore a strong motivator for malingering.

Occasionally a convicted felon is caught malingering in an effort to avoid the death penalty. One such case was that of Monty Allen Delk, who was executed February 28, 2002 by lethal injection in Texas (Monty Allen Delk). Delk was one of Texas's most notorious death row inmates, because of his strange behaviors. He paid no attention to his personal hygiene, and said bazaar things when interviewed. The prison psychiatrists and prosecutors in his case said that these actions were an attempt to avoid the death penalty. He was malingering the symptoms of psychotic illnesses. If further assessment had not been done, Delk might have been able to avoid the death penalty by faking these symptoms. However, there was much evidence against him that is similar to the "Cues as to Malingering" in the Introduction to Criminal Forensic Assessment previously mentioned. The first cue listed in this document is "Inconsistency of Symptoms". According to the prosecutors in Delk's case, he was coherent at the time of the trial. It is not likely that Delk would develop these random symptoms as quickly as they appeared. Delk's attorney for his defense claimed that Delk was never able to communicate clearly with him, and stated that, "He speaks in toungues ... word syllables". However, the prosecutors also described him as clever and manipulative, which are also common traits of malingerers.

Another important thing to examine in the case of a possible malingerer is his criminal history. After reviewing Delk's criminal history, it was clear that the prosecution had been correct in assuming that he was clever and manipulative. Delk had a history of burgalarlies and other crimes, and had even admitted to the murder of a man other than the one he was tried for. The sister of Delk's victim probably said it best when she stated, "I think the man's got problems and all, but he was sane when he was found guilty, he was found sane when he murdered my brother" (Monty Allen Delk).

Monty Allen Delk is an example of the importance of catching malingerers. One could only imagine the severity of the consequences for not catching malingering in a dangerous criminal such as Delk. So it is obvious that assessing the possibility of malingering is an important part of forensic assessment, but what tools are available to assess malingering?

The most commonly used assessments of malingering are the MMPI-2, and the SIRS (Structured Interview of Reported Symptoms). Another test, the M-FAST (Miller Forensic Assessment of Symptoms Test) is increasing in popularity. Each type of assessment is valuable for different reasons.

The M-FAST is a brief structured interview for the detection of malingered mental illness. It is a measure of maximal performance. This test is appropriate for use with adults (18+). It's purpose, as stated by the author, is to "provide information regarding the probability that an individual is malingering psychiatric illness." The M-FAST appears to be useful in the initial screening of criminals who might be guilty of malingering. It should not be used as a "final say", because it does not gather enough information. The author suggests that is be used for initial screening, and if an examinee is then thought to be malingering, the SIRS should be administered. The benefit of using the M-FAST for screening is that it is economically and time efficient, whereas the SIRS takes more time and resources.

The MMPI-2 is a personality inventory that is used to assess many things. It has a scale called the "F" scale built in, to assess if the test-taker is "faking bad". The MMPI-2 is ideal because of it's wide usage, and proven reliability and validity. It is suggested that the MMPI-2 be administered to get a sense of the test-taker's style of response, and to then follow with the SIRS if malingering is suspected. (Introduction to Criminal Forensic Assessment: Malingering)

The SIRS is a structured interview in which the examiner asks a specific set of questions to determine the consistency in symptoms reported by the test-taker. The SIRS consists of 8 primary and 5 supplementary scales for the assessment of feigning, including a scale to assess defensiveness. Each scale has a varied content. Items on any particular scale do not reflect any specific mental disorder. The SIRS also has proven reliability and validity, but it is more subjective than the MMPI-2.
Although assessment of malingering can be tricky, the case of Monty Allen Delk serves as an example for why it is necessary. There is limited research on malingering available at this time, but as the field of forensic psychology grows, this research bank can be anticipated to expand as well.

Resources

Broughton, Nicholas and Paul Chesterman. (2001). Malingered Psychosis. The Journal of Forensic Psychology, 12, 407-422.

Hayes, J.S. (1996). The Efficacy of the Structured Interview of Reported Symptoms (SIRS) to Correctly Classify Mentally Retarded Pretrial, Not Guilty by Reason of Insanity and Malingering Defendants. Archives of Clinical Neuropsychology, 11, 399.

Higginson, Sarah. (2003). Malingered Psychosis Among Prisoners: Part 1. Retrieved November 29, 2005.

Introduction to Criminal Forensic Assessment: Malingering. (n.d.). Retrieved October 27, 2005, from http://web.jjay.cuny.edu/~pzapf/classes/PY820/Week%205%20Malingering.htm

Monty Allen Delk. (n.d.). Retrieved November 29, 2005, from http://www.clarkprosecutor.org/html/death/US/delk761.htm

Plake, B. S., Impara, J. C., & Spies, R. A. (Eds.). (2003). The fifteenth mental measurements yearbook. Lincoln, NE: Buros Institute of Mental Measurements

Trowbridge, Brett. (2002). Malingering Exposed. Retrieved November 17, 2005, from http://www.trowbridgefoundation.org/docs/malingering_exposed.htm.

Woolwine, Heather. (2005). Malingering, Faking Mental Illness. Retrieved November 29, 2005, from http://www.musc.edu/catalyst/archive/2005/co6-10mali.html.

Wrightsman, Lawerence S. & Solomon M. Fulero. (2005). Forensic Psychology (Second Edition). Belmont: Thomson Wadsworth.