How Competency Examiners Should (and often don't) Assess for Malignering and Poor Effort.
"There may be great fraud in this matter... (the judge) may do well to inquire... whether it (incompetence) be real or counterfeit." (Hale, 1736) (1)
THE POSSIBILITY OF FAKING during legal proceedings has been recognized since ancient times. While forensic psychlogists were among the first mental health professionals to investigate malingering, lately, the sister discipline of neuropsychology has been much more active and has produced hundreds of publications in the past 20 years. One influential study concluded that whenever siutations provide incentives for faking, roughly 40% of examinees will do so or present with poor effort to the extent that their presentation during the evaluation is not a reliable guide to their actual abilities. (2)
A recent survey of examiners across the US estimated that 24% of defendants referred for competency assessments were feinging, and a further 10% were not presenting validly in other ways. (3) Feigning is a general term that means "faking bad" without specifying a motive. Malingering is the intentional production or gross exaggeration of symptoms for a tangible benefit. There are a number of other conditions that also imply invalid responding: Factitious disorder is a condition in which a person intentionally fakes a disorder for the purpose of gaining attention and special treatment from treatment providers. It cannot be diagnosed if there are significant other benefits to the behavior, (4) as there almost always are in a criminal case or in jail. Somatoform disorders are conditions in which the patient complains of bodily dysfunction or pains that cannot be medically explained. It is believed that such reports are not deliberately inaccurate. It may simply be that some people are particularly sensitive to minor bodily sensations, over-interpret such experiences, or to complain about them more others. Conversion disorders usually involves complaints of paralysis or cognitive dysfunction, such as amnesia, that cannot be medically explained. Such patients were also referred to as displaying hysterical paralysis or blindness. Pioneers such as Charcot and Freud interpreted their behavior as unconsciously determined. They noted that such patients often seemed oddly unconcerned about their sudden inability to, for example, use their left arm, and observed that these symptoms often functioned to excuse the patient from distasteful social obligations. This sounds a lot like malingering, and this is how such behavior was interpreted prior to the age of psychoanalysis. Charcot himself wrote, "Malingering is to be found in every phase of hysteria." (5) Recent authors question the existence of unconscious motivation in such presentations. (6)
While many CST examinees appear to malinger, lack of full cooperation, without a clear motive and deliberate intent to perform badly, is also a major concern. Many of the tests and procedures psychologists use assume full engagement and effort on the part of the test-taker. It is no more difficult to low-ball an IQ test than for someone to do fewer push-ups than their maximum. There is increasing evidence that assuming a test taker will perform to the best of their ability is naive and unfounded: Poor effort has been found in groups of subjects, such as college volunteers (7) and children tested in school, (8) that were not thought to be at risk for underperformance. Such examinees don't have any clear motivation to perform badly, but neither are they especially motivated to do their best.
All of the above response styles potentially spoil the assessment. I refer to them by the broad term negative response bias, which make no assumption about the motivation for the behavior. The crucial issue is given any evidence of less than full cooperation and honesty, one cannot put much weight on defendant's presentation during the evaluation. Collateral sources will be required to validly assess the defendant's actual cognitive, psychiatric, and functional status.
As a court-appointed expert, I often encountered defense-obtained evaluations that provided second opinions on defendants I opined had feigned. It was not uncommon for the defense examiners to ignore the data from my investigation and attempt to approach the defendant "with a clean slate." Another examiner would routinely testify that he "saw no evidence of malingering" in cases a previous examiner concluded this was the case, offering no facts or observations in support of his opinion. Prosecutors could reasonably conclude that such examiners simply write down whatever the defendant tells them and testify as if this was a meaningful assessment.
Although it may be hard to tell from such reports, there are professional standards that do guide such practices. Unfortunately, the two most prominent guidelines, the American Psychological Association Code of Ethics (APA, 2002/2010/2016) (9) and the Association for the Advancement of Psychiatry and Law's practice guidelines (2007), (10) do not provide strong recommendations on assessment of feigning. The Specialty Guidelines for Forensic Psychologists" contains firmer language, although recommendations about the need to assess for feigning are merely implicit.
Several neuropsychology professional societies have issued position statements stating that assessment of an examinee's effort on cognitive testing (which includes assessment of intelligence) is medically necessary in ALL such assessments, not merely those that are conducted for psycholegal purposes. (12) These followed accumulating evidence that an examinee's motivation and effort during testing has a much larger effect on the test scores obtained than brain damage does. (13) As it turns out, mild brain injuries, by far the most common, have no significant effects on cognition three months after injury. (14) A mild traumatic brain injury (mTBI) is one that results in less than 30 minutes of unconsciousness, with no abnormality on CT or MRI brain scans, and no complication in the recovery (such as bleeding into the brain). (15)
Some highly influential and well-known authors have provided very clear directives to assess feigning in forensic exams in general and competency to stand trial (CST) exams in particular. In their classic text Psychological Evaluations for the Court, Melton et al. (1997, p. 54) wrote, "Given the significant potential for deception and implications for the validity of their findings, mental health professional should develop a low threshold for suspecting deceptive responding." (16) In the Oxford Best Practices series book on assessing CST, the authors state, "Malingering must always be considered by any evaluator working within the forensic context" (p. 124). (17) Thomas Grisso, in his 1988 book on competency assessment, wrote: "Malingering must be considered whenever a pre-trial competency evaluation produces signs of psychotic or organic disorders, mental retardation, deficits in competency abilities, or special states like amnesia" (p. 35). (18) This statement remains in force for defendants who have a legitimate mental condition, because even examinees with schizophrenia, (19) serious head injury, (20) and intellectual disability (21) can exaggerate their disabilities. In fact, they are best-situated to do so: Defendants with no such history cannot support their claims and will usually lack knowledge of how to credibly portray the condition.
As demonstrated above, there is explicit endorsement from authoritative authors regarding the need to assess for possible feigning or poor cooperation in CST exams. There is also strong support from statistical surveys to support a high index of suspicion. A recent meta-analysis of 59 studies reported that an average of 27.5% of defendants referred for competency examination were found incompetent. (22) This can be compared with the proportion of defendants estimated to be feigning (24.1%) or uncooperative (8.3%) in a recent survey of competency to stand trial (CST) examiners. (23) From these numbers, it is apparent that a defendant who presents as impaired is about equally likely to be feigning or uncooperative as to be legitimately incompetent. For this reason, I argue that validity assessment is the primary diagnostic task in CST assessments, and a primary competency of CST examiners.
Technically, Grisso's recommendation above to assess every defendant that presents with a mental or psychiatric impairment for feigning is overly-inclusive: If a defendant presents with evidence of a mental disorder but without deficits in competence to stand trial, there may be no need to assess for feigning. For example, if a defendant presents as rational but reports hearing voices only at night--who cares? Court hearings are during the day. Mental illness or deficit should very rarely be equated with incompetency: There are only a few diagnoses that strongly imply impairment to the point of incompetence, such as delirium or severe dementia or intellectual disability. A diagnosis of moderate intellectual disability, if accurate, suggests probable incompetency, while schizophrenia and Bipolar disorder do not: About 50% of defendants with such diagnoses are found competent. (24)
For intellectually disabled (ID) defendants, prior IQ scores can provide guidance regarding CST status: ID defendants found competent have an average IQ of 63.7 across studies, whereas those found incompetent have an average IQ of 56.9. Scores of 65 and above suggest competence, absent other issues, while valid IQ scores below 60 increasingly suggest incompetence. As IQ scores dip to 55 and below, there is a low likelihood of competence or the capacity of being educated into competence. (25)
Feigning can take many forms, some of which have not been previously emphasized in the professional literature. (26) These are shown in Table 1.
These various presentations can present in multiple combinations. Unsophisticated defendants often fake multiple issues and conditions, including psychosis, amnesia for the crime, intellectual limitations, and ignorance of the court system. More sophisticated malingerers will often portray a more specific condition, such as dementia or severe depression. One such defendant passed two validity tests and had a credible treatment history of depression, but was shown to have defended himself in another legal matter during the time he was allegedly incompetent.
There is a myth among less sophisticated examiners that malingers are a pretty dull lot and easy to catch. This may be true of the feigners they have caught, but this may be a small fraction of those they encountered. As in most endeavors, it is a mistake to underestimate one's opponent.
MEANS OF ASSESSING NEGATIVE RESPONSE BIAS
Some examinees will give such dramatic or implausible answers in the interview that one should immediately question their motivation. For example, a few defendants will claim not to know their age, birthdate, the colors in the American flag, or the role of their lawyer. They may report hearing voices all the time and that they have done so all their lives. Such answers are red flags, absent a compelling explanation (e.g., a defendant is an immigrant from a country in which birth records were lost). However, most examinees will be more subtle. There are a few behavioral clues to feigning that have been supported in multiple studies, as shown in Table 2.
Validity testing refers to instruments and procedures designed to assess whether the examinee is presenting in a reliable, valid manner. There are two basic types of validity tests: Those that rely on the examinee's answers when asked about symptoms and problems, and those that rely on examinee's performance on motor, cognitive or knowledge tasks.
SYMPTOM REPORT TESTS
Many readers may already be familiar with the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), (27) which is a 567-item true-false questionnaire about psychiatric symptoms. There is also a newer version, the MMPI-2-Restructured Form (MMPI-2-RF), (28) which is over 200 items shorter and contains other changes from the prior version. Both MMPI-2 editions are bristling with response style scales that detect inconsistent responding, over-reporting, exaggeration, and defensivcness.
On both tests, the first order of business is to determine if the examinee responded consistently and meaningfully. This is assessed through the consistency scales. Most scores on the MMPI and other similar tests are expressed as T scores, which have an average of 50 in the general population. A score of 70 is quite high, typically at about the 98th percentile, while 80 is >99th percentile. Scores above 80 on the consistency scales invalidate the rest of the test.
On the MMPI-2, the primary "fake bad" scales of interest are the Infrequency scale, often labeled simply "F," and the Infrequency Psychopathology scale. The F scale is composed of items that are rarely answered in the scored direction by people without psychiatric problems. They include reporting odd beliefs, behaviors, and experiences. Very high scores (T score > 120) invalidate the rest of the test. Because psychiatric patients tend to endorse more of these items than "normals," another scale was subsequently developed to better distinguish true from exaggerated psychiatric symptoms. It is referred to as the Psychopathology Infrequency scale, often denoted as "Fp." It is not much elevated by any known mental illness, and scores > 100 are strong evidence of feigning or exaggeration. The MMPI-2 has a half dozen more response style scales, although they are not all scored by the primary vender.
On the MMPI-2-RF, there are five scales devoted to over-reporting in three distinct domains: Psychiatric symptoms, bodily and neurological complaints (e.g., pains, feelings of weakness, dizziness, blackouts), and cognitive complaints (reports of poor concentration and memory; see Table 3). The Infrequency and Psychopathology Infrequency scales were refined and carried over to the MMPI-2-RF, and are distinguished from their MMPI-2 counterparts by appending "-r" to their labels (e.g.: F-r). All the scales in Table 3 are scored by the official vendor, so the MMPI-2-RF assesses a broader range of exaggerated presentations.
Lawyers should be aware that all these scores exist and may have been considered by the examiner, even if they do not appear in the written report. Psychologists may be reluctant to include them for various reasons, and even if contacted by an attorney, may decline to release them without a release from the examinee. They may be more agreeable to releasing them to a psychologist designated by the prosecutor. This can lead to discovery of scores that were not interpreted in the standard manner or over-interpreted. For example, although cutoff scores are given for validity scales to indicate probable exaggeration, they are quite conservative. Suppose an examinee obtained high scores on multiple validity scales, but none quite exceeded the cutoff score? While a conscientious examiner might be cautious in describing the meaning of this data, a conclusion of "no evidence of feigning or exaggeration" would not be accurate.
A competitor of the MMPI-2/RF is the Personality Assessment Inventory, (29) which is 344 items long but its items are answered on a four-point scale, from False, not at all true to Very True. The PAI also has three strong validity indices shown in Table 4.
The Negative Distortion Scale is new and has been shown to be superior to the two more established indices in three recent studies, (30) but is not scored by the publisher/vendor.
A final self-report validity test is the Structured Inventory of Malingered Symptoms, (31) a 75-item self-report inventory. Billed and researched primarily as a screening test, very high scores (e.g. > 40) can nonetheless serve as evidence of feigning, both regarding traditional mental illness symptoms and cognitive issues such as memory complaints.
All these inventories are less frequently used by examiners outside of state hospitals, as the examinee must be supervised and the MMPI and PAI require from 45 minutes to over two hours to complete. Self-report tests should NEVER be given to the examinee to take home or to complete without supervision. An examiner that does so violates ethical proscriptions regarding test use and maintaining test security. (32)
Examiners who do not work in a hospital setting will usually employ one of several structured interviews. These resemble tests like the MMPI-2, but the items are read to the examinee and the examiner records and scores each response, and some observations are also recorded and scored. The Structured Inventory of Reported Symptoms (SIRS)" was introduced in 1992 and quickly became identified as the gold standard of malingering measures after initial, very promising results in forensic samples. Using standardized scoring and interpretive rules, it is able to identify about half of feigners with a fairly low false positive rate (about 5%). (34) It was recently updated and revised (35) after findings that it was prone to false positive errors in some samples, such as examinees with intellectual disabilities or dissociative disorders. Dissociative disorder are conditions that lack the normal continuity of memory and experience, as reported in patients with multiple personality disorder. New interpretive rules and categories were added, which did reduce false positives in problematic groups, but also significantly reduced sensitivity--the ability to successfully detect feigning. (36) Combined with some other problems, (37) the SIRS-2 has not achieved the gold standard status claimed by and often granted its predecessor. Still, it provides solid evidence of feigning and is the recommended instrument for intellectually disabled and dissociative patients suspected of feigning or exaggerating psychiatric symptoms. (38)
The Miller Forensic Assessment of Symptom Test (M-FAST) (39) is marketed as a screening test, quite possibly to avoid direct competition with the SIRS, with whom it shares the same publisher. As a screening test, its role would be to identify possible feigners for further evaluation. However, several authors pointed out that by simply using a higher cutoff score (e.g., >11), the M-FAST can provide substantial evidence of over-reporting/exaggeration. (40) It is roughly one seventh the length of the SIRS/SIRS-2, is much quicker to score (1 minute vs. 20), and thus offers a huge advantage in terms of time efficiency. This is an important consideration, as CST exams are often poorly compensated.
PERFORMANCE VALIDITY TESTS (PVTS)
These tests require the examinee to "do" something, such as remember pictures or words, then provide answers that are objectively right or wrong. Memory testing is a common approach. There is a considerable range of tests available in this domain, so I will discuss the most common, and summarize others in Table 4.
One of the earliest, quickest, and most commonly used performance validity tests (PVT) is the Rey 15 Item Test. It takes about one minute and is presented a memory task. It is actually quite easy, so most examinees can correctly recall at least 8 of the 15 items. However, very low functioning examinees, such as with intellectual disabilities, severe head injuries, or dementia may fail. (41) Similarly, because it is quite easy, some examinees may either perceive it as a validity test or pass it even though they exert little effort. The Rey has been cited as a test that could be unethically used as evidence of good effort by biased witnesses: (42) Because of its low sensitivity, passing it is not evidence that the person performed to the best of their ability.
The Test of Memory Malingering is probably the most widely used PVT in CST exams at the present. (43) It consists of several booklets of line drawings, all of common objects. The examinee is shown the pictures and then tested for their memory. In the most-researched version of the test, the examinee is shown the pictures twice and then tested for recall immediately after each presentation. The most common criterion is a score below 45 correct on Trial 2. Recent research suggests this is an overly conservative criterion for most examinees, and that a considerably higher cut off score might strike a better balance of sensitivity and specificity. (44) As is, the TOMM is less sensitive (less likely to detect feigning) than several other modern PVTs, (45) and because it is so widely used, there is a risk that it has been compromised through internet articles and frequent exposure to defendants. Some repeat offenders may have seen their competency reports in which TOMM results were used to conclude they were faking, and are not likely to be fooled again. For these reasons, passing a TOMM is often not strong evidence of genuine responding.
Examinees with severe cognitive impairment may legitimately obtain scores below the TOMM cutoff scores. Recommended cutoff scores for examinees with intellectual disabilities have varied widely (from <35 to <45), (46) which is problematic. Unlike some recently developed PVTs, the TOMM does not have any internal validity checks to distinguish very low ability for poor effort: Either can produce failing scores and they cannot be reliably distinguished in most cases.
However, it is possible to score so low on the TOMM, and many other such tests, that deficient ability alone can be ruled out. Many PVTs (although not the Rey 15 Item Test) require the test-taker to choose among two response options. For a 50-item test with two possible answers per question, even someone with no memory or mental capacity of any sort (other than to be able to point to their choice) should get approximately 25 correct just by guessing. Scores that are significantly below 25 suggest the person knew the correct answer and intentionally chose the wrong one. This is the strongest evidence of malingering that a test can provide. Unfortunately, few feigners will score below chance. (47)
Most PVTs reach their limits with intellectually disabled defendants or those who are demented. Such test-takers may lack the mental capacity to complete even very easy cognitive tasks, and most PVTs cannot distinguish very poor ability from poor effort. However, several PVTs from the neuropsychological literature can in some cases. (48) These include the Word Memory Test, (49) the Medical Symptom Validity Test, (50) and the Non-Verbal Medical Symptoms Validity Test. (51) They work by comparing the examinee's performance on tasks that vary in difficulty--some that are very easy, and some that appear easy but are actually harder than they look. Examinees with very compromised abilities should score best on the easiest tasks, worse on the harder ones. Malingerers often do not.
THE INVENTORY OF LEGAL KNOWLEDGE (ILK) (52)
The ILK is a recently published validity test that attempts to assess if the examinee is falsely portraying ignorance of the court system--a common strategy. Despite its recent arrival, it had already achieved widespread use by December 2012. (53) The ILK consists of 61 true-false question about the court system, and it is reported to correlate substantially with other PVTs such as the TOMM. (54) However, the ILK is vulnerable to high false positives among intellectually disabled examinees (55) and those that are truly incompetent. (56) The manual reported that among a small sample of 17 incompetent defendants, 82% scored below the recommended cutoff score of 46. (57) Thus, the ILK alone cannot adequately distinguish between real and feigned incompetence, unless the score is significantly below chance, which is a major limitation.
Tests have taken center stage in assessing negative response bias. However, their effectiveness relies largely on two factors: That they are not perceived to be malingering tests, and that their rationale and scoring rules are not known to the examinee. Psychologists are expected to list tests used in their assessment, and there is information available on the internet about validity tests. Further, attorneys may coach clients undergoing CST assessment about validity tests and how to respond to them. (58) Because of this, and their ethical obligation to preserve test security, psychologists should resist disclosure of test manuals to non-psychologists. Instead, disclosure to a psychologist retained by the defense attorney is preferable. If a court rules that test materials be turned over to the defense, an order that requires return of the materials at the end of the case, and forbids reproduction or distribution, should be sought.
CST examiners usually have access to the police report and often, the defendant's criminal history. If the defendant has a psychiatric history, the examiner will want to review at least the most recent records. If the defendant presents as intellectually compromised, school records can be sought, although these are usually not retained by school districts after seven years.
The range of potential sources is very broad, and might include family members, treatment providers, jail staff, the arresting officer, probation or parole officers, and prior evaluations. If a defendant is in custody, it is often desirable to speak to jail security staff, as they observe the defendants over many hours and occasions. In contrast, meetings with a nurse or physician at the jail may be brief, infrequent, and an opportunity for the defendant to falsely present a MH issue. In US v. Gigante, (59) observations by a corrections officer and nurse were apparently more credible to the judge than some very respected professionals' opinions.
Prior evaluations, particularly by government agencies like the Social Security Administration and Veterans Administration, may be given substantial credibility. Often, they should not: The Social Security Administration has resisted the use of validity measures, usually does not pay for examiners to administer them, and has described their use "not programmatically useful," (60) despite evidence of frequent feigning in their clients. (61) Even administrative law judges have reported feeling pressured to approve claims. (63) Veterans Administration evaluations are "uniquely proclaimant" and pressures discouraging validity assessment among disability claimants have been published, (64) despite high failure rates on validity tests and evidence of malingering. (65) While many VA disability examiners do use response style measures, congress recently allocated $5.8 billion to private evaluation companies that rarely if ever address the possibility of malingering. Thus, representation or even proof that a defendant is considered disabled by the SSA or VA is not compelling proof of a disabling condition. Further, even legitimate inability to work should not be equated with incapacity to stand trial.
Most mental health treatment providers cannot be relied on to distinguish real from exaggerated presentations. This is simply not their role and most lack adequate training or motivation to do so. In fact, diagnosing a patient as malingering (which is very rare) will likely bring the provider nothing but trouble, including possible complaints to the agency administration and to the state professional board, threats, and loss of income when the patient seeks future treatment elsewhere. One recent study found 42.4% of mental health patients reported having agendas for their MH treatment beyond getting better, while only 9.5% informed their providers of these issues. (66) Finally, even if prior examiners or treatment providers addressed response style, the thoroughness and competence of this effort should be carefully considered and not assumed: Few mental health clinicians are competent in this area.
Mental Health and Veterans Courts have been created to deal with the special needs of these defendants. Because these settings may lead to more favorable treatment than a general criminal court, the possibility of feigning must be considered. While veterans with combat experience do appear to be at greater risk for subsequent legal problems, one should not assume this a result of PTSD. While most veterans have a clean legal history, a substantial number report having gotten in trouble in school for fighting. Soldiers that seek or are selected for infantry and other combat roles may have a higher basal level of aggression than others even prior to any specialized training and combat. Further, episodes of violence may be triggered by use of alcohol, not PTSD-related symptoms, as is the case for many crimes.
Defendants frequently claim amnesia for the offense. (67) Even legitimate amnesia is not an automatic bar to competence, (68) and often, amnesia is offered as an attempt to reduce responsibility. The most plausible cause for legitimate amnesia during a crime, based on sheer numbers, is heavy use of alcohol or alcohol combined with depressant or sleep-inducing drugs. Confusion following an epileptic seizure is also a plausible cause. (69) Alcohol use is frequently involved in crimes, (70) and it has been estimated that amnesia during a crime is roughly five million times more likely due to alcohol intoxication than to a sleep disorder. (71) While blackouts are usually associated with very high BACs (e.g., .30%), (72) some authors have reported them at BACs as low as .07%. (73) While one might assume that claims of alcohol-induced blackouts could be corroborated by observations of intoxication, some people, presumably chronic alcoholics, can reach very high BACs (e.g., .30) without showing typical signs of intoxication. (74) Blackouts are not uncommon among alcoholics and even samples of students. Most are "partial," in that some memories are encoded and recoverable, while those with a total lack of recall occur about one-third as often. (71)
Amnesia due to dissociation, anger, or other psychological processes is highly controversial, with some authors giving such claims credence, (76) and many others asserting that nearly all amnesia claims pertaining to crimes are feigned. (77) Although such patients diagnosed with dissociative conditions, like multiple personality disorder, often claim to have no memory for events experienced in other personality states, experimental studies show normal levels of memory transfer, retention, and interference with similar material to be remembered. (78) One such defendant I evaluated claimed to have a dissociative disorder and no recollection for the offense. However, she signed papers in her own name, in her regular penmanship, at the time of her arrest, seemingly contradicting her claim.
Often collateral data, such as police reports and videos of the crime scene, can be important in disputing such claims. Validity tests, as described above, can also contribute. Finally, psychologists have developed a method to objectively assess for feigned amnesia of a crime. (79) Briefly, a two-choice alternative knowledge test is created about the crime. Details of the crime should be culled from the police-report and other sources. These should be details the defendant would have noticed but claims not to know. The items should be equally plausible to a naive test-taker, such as, "What weapon did the robber use--a gun or a knife?" A test-taker that scores significantly below chance reveals knowledge of the crime. Conversely, because the procedure has modest sensitivity (typically less than 50%), (80) passing such a test does not rule out feigning.
Bias in expert witnesses has long been recognized by legal professionals and more recently, investigators of forensic practice. (81) Murrie and colleagues (82) found across 60 clinicians who conducted a combined total of more than 7,000 CST evaluations, different examiners found widely differing numbers of their examinees incompetent: The figures ranged from 0 to 62%! Recently, over 100 psychologists and psychiatrists were randomly assigned and paid as consultants to score of a measure of dangerousness. Even though they met only 15 minutes with the presumed referring attorney, scores produced on the risk assessment measure depended on whether the examiner thought they were hired by the defense or prosecution, and some of the effects observed were quite large." (83)
While the Specialty Guideline for Forensic Psychologists are a bit oblique on the need to assess for feigning, they are clearer regarding issues of bias and distinguishing between facts, inferences, and conclusions:
1.02 Impartiality and Fairness
Forensic practitioners strive for accuracy, impartiality, fairness, and independence. Forensic practitioners recognize the adversarial nature of the legal system and strive to treat all participants and weigh all data, opinions, and rival hypotheses impartially
"Rival hypotheses" means alternative ways of perceiving or interpreting the evidence, such as a defendant reporting he hears voices. Several hypotheses might be considered: 1) That the person is schizophrenic, 2) that the person is withdrawing from alcohol or drugs, or 3) the person is feigning.
9.01 Use of Appropriate Methods
Forensic practitioners seek to maintain integrity by examining the issue or problem at hand from all reasonable perspectives and seek information that will differentially test plausible rival hypotheses.
9.02 Use of Multiple Sources of Information
Forensic practitioners ordinarily avoid relying solely on one source of data, and corroborate important data whenever feasible... When relying upon data that have not been corroborated, forensic practitioners seek to make known the uncorroborated status of the data, any associated strengths and limitations, and the reasons for relying upon the data.
11.02: Differentiating Observations, Inferences, and Conclusions
In their communications, forensic practitioners strive to distinguish observations, inferences, and conclusions. Forensic practitioners are encouraged to explain the relationship between their expert opinions and the legal issues and facts of the case at hand.
Because they are presented as aspirational guidelines, not minimal standards of practice, cross examination may wish to first establish that the expert regards him/herself as a well-credentialed forensic psychologist that practices at the highest level of the profession.
Reports often contain many clues about examiner bias. Some of these include:
* Use of the defendant's first name (for adults) rather than a more formal appellation (e.g., Mr. Smith); sympathetic reporting of life events.
* Reporting the defendant's (or other friendly sources') answers about personal history, perceptions, and feelings as if they are facts. (E.g., "Ms. X was born in Ann Arbor, MI and sexually abused by her father from the ages of 5 through 12.")
* Failure to comment on and fairly consider contradictions between the defendant's accounts and other sources.
* Accepting and reporting the defendant's demeanor and performance at face value and as representative. An examinee might project a very different persona during the evaluation than in other settings. I often observed defendants swagger into my office building, then act like a helpless, mistreated puppy during the exam. Such non-verbal behaviors can have a powerful influence on judgments, like competency, that they have no bearing on. (84)
* Intermixing observations, facts, and inferences in the body of the report. A frequent example is, "Mr. Jones was unable to describe what a plea bargain is and was not able to benefit from tutoring. "This is a conclusion, as it provide an interpretation of what was actually observed: Mr. Jones not answering the question. Another variant: "Mr. Jones acknowledged hearing voices and thoughts of suicide."The word "acknowledged" is loaded with additional meanings and suggests the author believes the account. For this reason, I stick to very neutral words such as "reported" and "said" that do not editorialize.
* Relying on subjective assessments of truthfulness or good effort. There is at best conflicting evidence that psychologists can detect feigning or poor effort without the aid of tests and collateral data. (85) A recent survey of neuropsychologists found the over-whelming majority believed validity testing is more accurate than subjective impressions about effort expended in an exam. (86)
* Failure to seek or obtain collateral data, such as offense reports, psychiatric records, or speak with persons familiar with the defendant--especially those that may contradict the defendant's account or show him or her in a different light. Relying on family members and selective medical records or sources provided by the defense attorney are common.
* Failure to consider or sufficient assess the possibility of malingering or poor effort. As described earlier, highly respected authors have stated such assessments are necessary since at least 1988.
* Use of weak or inappropriate validity tests, or discounting the significance of those that are failed. Because many validity tests have set cutoff scores to minimize false positive errors, they sacrifice the ability to catch those that are feigning. To compensate for the stringent cutoff scores, multiple validity tests should typically be used. (87) Sometimes examiners employ validity tests, but rationalize failures as due to depression, fatigue, or pain, none of which are plausible explanations. (88)
* Failure to weigh the importance of validity tests failed in a previous evaluation.
* Misrepresenting the meaning of a passed validity test. Passing a validity test with low sensitivity is not meaningful, and much less informative than failing the same test.
* Equating the presence of a legitimate mental condition with genuine presentation during the exam. These are two, entirely separate issues. A person with a mental condition can present genuinely or not, as can one without a mental condition. The presence of a legitimate mental condition tells you nothing about whether the examinee presented genuinely.
* Allowing the defense attorney or others to remain in the room during testing. Doing so violates two important principles: Maintaining standardization of test administration (APA Ethical Code 9.02) and protecting test security (APA Ethical Code 9.II). (89) No tests has been standardized with the examinee's attorney looking over their shoulder.
* Offering facile and unsupportable explanations for apparent malingering. One defendant I examined was subsequently examined by a defense psychologist, who reported the defendant spoke incoherently throughout a nearly three-hour interview. Phone calls recorded from the jail revealed him speaking in a completely lucid and rational manner in lengthy conversations with family the week before and after the psychologist's interview. During testimony, the psychologist opined the discrepancy could be due to the defendant's comfort in talking with family vs. the psychologist.
WHAT'S A PROSECUTOR TO DO?
Prosecutors should be aware of systemic problems that contribute to poor CST assessments. Quality CST exams arc facilitated when examiners are court-appointment and have adequate time and resources to complete their work. Unfortunately, the fee for a CST evaluation, conducted by a certified CST examiner, is as low as $170 in some locales. (90) Examiners often rely on defense attorneys to supply school or medical records, which may be redacted or thinned before being passed on. Even state examiners may have difficulty accessing corrections staff and recorded phone calls, and a defense-retained examiner has little chance of doing so. To the extent that prosecutors can do so and provide such data to examiners, these important sources are more likely to be used. Similarly, court orders that direct the defendant to identify any facilities where psychiatric treatment was obtained (or schools for defendants presenting as intellectually disabled), and direct those facilities to release records to the examiner, are preferable to relying on the defense attorney.
Prosecutors can also improve the quality of CST reports by holding examiners to the standards set out in this article. The available evidence suggests judges have difficulty appraising the relative quality of conflicting reports, and when faced with conflicting professional opinions, overwhelmingly side with the majority (91) Since examiners often avoid critiquing a colleague's report, prosecutors might consider hiring a separate expert to do so.
BY STEVE RUBENZER, PH.D., ABPP
Steve Rubenzer, Ph.D., ABPP is board certified in Forensic Psychology and has conducted nearly 3800 CST exams on cases ranging from trespassing to the highest profile capital murder. He is author of the upcoming book Assessing Negative Response Style in Competency to Stand Trial Evaluations by Oxford University Press. He offers reviews, consultation, second opinions, and testimony regarding CST evaluations, particularly whether issues of feigning or poor effort have been adequately addressed. He can be reached at CSTReviews.expert, email@example.com, or 281-814-7743.
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Table 1 Types of Invalid Responding in CST Evaluations Feigned Presentation Mean Feigned ignorance of the court system 17.2% Feigned amnesia for offense 14.6% Feigned or exaggerated intellectual limitations 14.5% Feigned memory problems (NOT amnesia for offense) 12.8% Feigned hallucinations 10.5% Feigned depression 10.2% Feigned anxiety or PTSD 8.2% Feigned demeanor (a) 7.5% Feigned paranoia 6.7% Feigned/exaggerated medical issues (b) 4.3% Feigned agitation/mania 2.3% Feigned disorganized speech 1.7% Other feigned presentation (not listed above) 1.6% ANY kind of feigning (all previous styles) 24.1% Factitious disorder 1.2% Somatoform or conversion disorder 1.9% Lack of cooperation WITHOUT malingering, factitious or somatoform d/o 8.7% Notes. (a) E.g., helplessness, vulnerability, child-like demeanor, speech impediment (b) E.g., unneeded cane, wheelchair, oxygen tank, etc. Reproduced from Assessing Negative Response Bias in Competency to Stand Trial Evaluations (2018) with permission of Oxford Univerity Press Table 2 Behavioral Indicators of Feigning * Endorses bogus/unusual symptoms * Positive but no negative symptoms (a) * Unusual combinations of symptoms * Very slow performance * Inconsistent performance on similar tasks (b) * Exaggerated behavior (c) * Fails very easy items * Gives improbable answers Notes. (a) "Positive symptoms" include hearing voices and delusions, while negative symptoms are problems with initiative and emotional reactivity. (b) For example, an examinee may perform poorly on a formal test of attention or memory, but not show such deficits during the interview. (c) Some malingerers grossly over-act, such as ducking and cowering from alleged hallucinations. Table 3 MMPI-2-RF Fake Bad Validity Index Cutoff Scores Index Domain(s) of Over-Reporting Infrequency (F-r) Unusual experiences Infrequency Psychopathology (Fp-r) Symptoms rare among psychiatric patients Infrequency Somatic (Fs) Unusual bodily and neurological symptoms Symptom Validity Scale (SVS/FBS-r) Unusual bodily, neurological, and cognitive symptoms Response Bias Scale (RBS) Unusual cognitive symptoms Index Interpretive Rule Infrequency (F-r) [greater than or equal to] 120 79-119 Infrequency Psychopathology (Fp-r) [greater than or equal to] 100 70-99 Infrequency Somatic (Fs) [greater than or equal to] 100 80-99 Symptom Validity Scale (SVS/FBS-r) [greater than or equal to] 100 80-99 Response Bias Scale (RBS) [greater than or equal to] 100 Index Interpretation(s) Infrequency (F-r) Invalid Possible over-reporting Infrequency Psychopathology (Fp-r) Invalid Possible over-reporting Infrequency Somatic (Fs) Scores on somatic scales may be invalid Possible over-reporting on somatic scales Symptom Validity Scale (SVS/FBS-r) Some scales may be invalid Possible over-reporting on some scales Response Bias Scale (RBS) Note. All scores listed are T scores, which have an popluation average of 50. Table 4 Validity Scales on the Personality Assessment Inventory Scale Content Negative Impression Management (PIM) Unusual symptoms Malingering Index (Ml) Unusual combinations of symptoms Negative Distortion Scale (NDS) Symptoms rarely endorsed by psychiatric patients Scale Cut off Score Negative Impression Management (PIM) [greater than or equal to] 77 [greater than or equal to] 100 Malingering Index (Ml) [greater than or equal to] 3 [greater than or equal to] 4 Negative Distortion Scale (NDS) [greater than or equal to] 19 Scale Interpretation Negative Impression Management (PIM) Probable exaggeration Definite exaggeration Malingering Index (Ml) Probable exaggeration Definite exaggeration Negative Distortion Scale (NDS) Very likely exaggeration Note. All scores listed are T scores, which have an popluation average of 50. Table 5 Some PVTs That May be Used in CST Exams Test Description Rey 15 Item Test Subject is shown 15 numbers, letters, and designs; then asked to write them TOMM Subject is shown 50 pictures and asked to identify those that were seen Dot Counting Test Subject counts groups of dots, either scattered randomly or in orderly groups Reliable Digit Span Subject attempts to remember strings of digits, saying them back to the examiner or in reverse order Validity Indicator Profile Forced choice vocabulary test (Verbal subtest) Validity Indicator Profile Forced choice puzzle solving test (Nonverbal subtest) Word Memory Test Multifaceted memory test (verbal) Medical Symptom Multifaceted memory test (verbal) Validity Test Nonverbal Medical Multifaceted memory test for pictures Symptoms Validity Test Test Strengths Rey 15 Item Test Very fast, free; Good validity if true cognitive impairment can be ruled out TOMM Well-researched, widely accepted Dot Counting Test Inexpensive, brief Reliable Digit Span Free, brief Validity Indicator Profile Assesses an aspect of intelligence; uses (Verbal subtest) subject's own performance as index of effort Validity Indicator Profile Same as above (Nonverbal subtest) Word Memory Test Highly sensitive, internal validity checks; suitable for mild ID; yields useful memory scores Medical Symptom Internal validity checks; suitable for Validity Test mild ID; yields useful memory scores; brief Nonverbal Medical Outstanding internal validity checks; Symptoms Validity Test suitable for mild ID; yields useful memory scores; brief Test Weaknesses Rey 15 Item Test Too hard for cognitively impaired, limited sensitivity TOMM Limited sensitivity, widely exposed; truly impaired may fail Dot Counting Test Low sensitivity, too hard for some examinees Reliable Digit Span Low sensitivity, too hard for some examinees Validity Indicator Profile Expensive, too hard for some examinees (Verbal subtest) Validity Indicator Profile Expensive, too hard for some examinees; (Nonverbal subtest) mentally demanding Word Memory Test Relatively long Medical Symptom May be transparent as a validity test to Validity Test brighter examinees Nonverbal Medical Relatively little data in psychiatric and Symptoms Validity Test ID samples; not widely used by CST examiners
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|Publication:||Prosecutor, Journal of the National District Attorneys Association|
|Date:||Nov 1, 2017|
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