Competency to Stand Trial: Effort v. Malingering

Imagine you are interviewing a 17-year-old young man about his knowledge of court proceedings. The young man is unable to explain the role of the judge and cannot describe the charges against him. He appears to have average intelligence, which makes his responses even more perplexing to you. He suddenly turns his head to look at the wall and informs you that he hears someone else speaking, but you assure him this is not the case. His medical records reveal several psychiatric diagnoses throughout his life. Your opinion: Competent or not competent to stand trial? Is he malingering? Is he even trying?

The critical task for psychologists in these situations is determining whether the individual is malingering or not putting forth adequate effort. The former is a deliberate and intentional misrepresentation of oneself that is driven by secondary gain while the latter is sometimes intentional, but lacks purposefulness.

Psychologists alert you to inadequate effort in the behavioral observations section of the competency to stand trial evaluation. They will depict an individual going through the motions of the evaluation without concern for their performance. Descriptions of behaviors will include phrases such as poor motivation, minimal effort, low tolerance for frustration, or refusing to respond to questions. Consequently, the psychologist will likely conclude that the evaluation was an unreliable assessment of the individual’s current level of court knowledge and ability to consult with counsel.

An individual who is malingering during the evaluation may deny having basic court knowledge, intentionally respond to questions incorrectly, or feign a mental health disorder that would preclude them from functioning in the court process as well as attaining competency in the future. Psychologists have several tools for assessing each of these scenarios.

Psychologists can review school and medical records for inconsistencies in functioning, administer specific tests to assess malingering, and conduct cognitive testing when an individual is believed to be intentionally misrepresenting their level of court knowledge. For example, The Test of Memory Malingering (TOMM) distinguishes malingering from memory impairments while the Inventory of Legal Knowledge (ILK) assesses whether an individual is feigning their knowledge of the legal system. Furthermore, cognitive tests such as the Wechsler Adult Intelligence Scale-Forth Edition (WAIS-4) provide information regarding the individual’s level of cognitive functioning in regards to general knowledge, abstract problem-solving, working memory, and speed of processing information.

Clinical interviews used in conjunction with psychological testing are tremendously valuable when there are concerns of feigned behaviors. For instance, individuals malingering mental health symptoms often demonstrate blatant behaviors characteristic of a disorder while often missing subtle behaviors, which are observed by psychologists during the clinical interview. Furthermore, structured interviews such as The Structured Interview for Reported Symptoms, 2nd Edition (SIRS-2) assess the genuineness of an individual’s responses as well as inconsistencies in self-reported mental health symptoms. Personality measures, such as the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) also provide information on the individual’s response pattern. The MMPI-2’s validity scores have the most empirical support for use in assessing malingering behavior.

Although psychologists provide opinions regarding competency-to-stand-trial based on the impact of developmental/cognitive or mental health diagnosis, clinical judgment and psychological assessment is also necessary when malingering is under question. When you read through the report, pay close attention to whether the psychologist painted a vivid picture of how the individual presented during the evaluation. Also, check the lists of administered tests as administration of the TOMM, ILK, or SIRS-2 suggests that the psychologist may have been concerned if the individual was responding truthfully. If personality testing was administered and found to be unreliable, make sure the psychologist elaborated on the reasons for this response pattern, such as random responding or presenting oneself unfavorably. Finally, remember the threshold for malingering is exceptionally high in competency to stand trial evaluations with only 10% of adults found to be malingering during evaluations.