How Can I, as a Forensic Psychologist Serving as a Criminal Court Expert, Deliver Defensible Malingering Assessments Under Adversarial Scrutiny?

Malingering is the intentional fabrication, exaggeration, or feigning of psychological or cognitive symptoms for clear external incentives (e.g., avoiding legal responsibility, obtaining financial compensation, or evading duties), rather than for internal psychological need.

Malingering assessment is the systematic, evidence-based evaluation of whether reported psychological or cognitive symptoms are intentionally exaggerated or fabricated for external gain, using multiple data sources, validated symptom- and performance-validity measures, behavioral observation, records review, and consistency analysis.

As forensic psychologists, we must acknowledge that malingering assessment is often perceived by courts as both powerful and dangerous. Allegations of feigning can influence determinations of competency, criminal responsibility, sentencing, and mitigation, and may be framed by opposing counsel as accusatory or prejudicial.

In adversarial proceedings, malingering opinions are commonly challenged as:

• Biased or aligned with the retaining party: In adversarial proceedings, perceived allegiance can overshadow methodology if evaluators do not explicitly document safeguards against bias.
  • Dr. Alvarez entered the courtroom confident in the neutrality of her evaluation. During cross-examination, however, opposing counsel repeatedly emphasized who had retained her and how often she testified for that side. Her malingering opinion was reframed as advocacy rather than analysis, despite the absence of overt bias in her methods.
• Over-reliant on psychometric scores: Courts scrutinize how data are interpreted, not simply whether standardized measures were used.
  • Dr. Chen’s report highlighted elevated validity scale scores as central to his conclusion of malingering. On the stand, he was asked whether test scores alone could establish intentional deception. As questioning continued, it became clear that the clinical reasoning linking the data to his conclusion had not been sufficiently articulated.
• Insufficiently attentive to alternative explanations: When alternative explanations are not explicitly addressed, malingering conclusions are easily characterized as incomplete or premature.
  • Dr. Patel had reviewed medical and psychiatric records indicating possible neurocognitive impairment, but focused her report on inconsistent symptom presentation. During testimony, she was pressed to explain how alternative explanations, such as medication effects or traumatic brain injury, had been ruled out.
• Culturally insensitive or context-blind: Contextual omissions can undermine credibility, particularly when cultural competence is raised as a professional expectation.
  • Dr. Robinson described the examinee’s guarded demeanor as evidence of non-credible responding. Under cross-examination, he was asked whether cultural norms, prior involvement in the system, or mistrust of authority could account for the presentation. These contextual factors were absent from his written opinion.

Because of this, criminal courts often scrutinize malingering assessments more intensely than other forensic opinions. As forensic psychologists serving as criminal court experts, we must prepare evaluations that withstand questioning aimed at undermining both the science and our credibility. 

Clarifying What Malingering Assessment Does, and Does Not, Evaluate
One of the most common vulnerabilities in malingering testimony arises from how the assessment's purpose is framed. As forensic psychologists, we must be precise and consistent in explaining that a malingering assessment is not an evaluation of truthfulness, guilt, or moral character. Rather, it involves examining the validity of reported symptoms or test performance within a specific forensic context. When this distinction is not clearly articulated, cross-examination can easily reframe the expert’s opinion as an accusation of lying rather than a clinical judgment grounded in assessment science.

In criminal court, it is essential to emphasize that malingering assessment focuses on response style rather than intent, that findings are probabilistic rather than categorical, and that conclusions are context-specific rather than global judgments about an individual’s character. Establishing these boundaries early helps anchor the court’s understanding of the expert’s role and protects the integrity of the assessment when adversarial questioning attempts to collapse nuanced findings into simplistic claims of deception.

Presenting Malingering Findings With Precision and Restraint
Overstatement is one of the most frequent points of failure under adversarial cross-examination. Forensic psychologists must resist equating failed validity indicators with definitive evidence of malingering. In criminal court, defensible testimony requires clearly distinguishing invalid or atypical test performance from intentional feigning, avoiding claims of certainty when the data support only increased likelihood, and being prepared to explain concepts such as false positives, sensitivity, specificity, and the influence of contextual factors.

For example, failure on an embedded validity scale of the Minnesota Multiphasic Personality Inventory–2–Restructured Form (MMPI-2-RF) does not, by itself, establish malingering. Presenting such findings as conclusive invites effective cross-examination and undermines the broader assessment. Defensibility is strengthened when conclusions are carefully measured, alternative explanations are explicitly acknowledged, and the limits of the data are discussed transparently. This disciplined approach signals expertise and preserves credibility in adversarial legal settings.

As forensic psychologists, we must use multiple, empirically supported measures when assessing malingering. Reliance on a single instrument is one of the most common weaknesses exposed under cross-examination.

Defensible malingering assessments typically integrate:

• Performance validity tests (PVTs) such as the Test of Memory Malingering (TOMM) or B Test, particularly in cases involving alleged cognitive impairment
• Symptom validity tests (SVTs) such as the Structured Interview of Reported Symptoms–2 (SIRS-2), Structured Inventory of Malingered Symptomatology (SIMS), or Validity Indicator Profile (VIP)
• Embedded validity indicators from instruments like the Minnesota Multiphasic Personality Inventory–3 (MMPI-3) and the Personality Assessment Inventory (PAI), interpreted within appropriate base-rate and contextual frameworks

As forensic psychologists, we should be prepared to explain not only which measures were used but also why they were selected, what they assess, and their limitations. Courts are less interested in test names than in whether the evaluator understands how these instruments function and how results were interpreted conservatively.

Cultural considerations are not ancillary to malingering assessment; they are central to defensibility. As forensic psychologists, we must anticipate that cross-examination may focus on whether test results reflect feigning or cultural, linguistic, educational, or socioeconomic factors.

Cultural factors may influence:

• Symptom expression and help-seeking behavior: Culturally patterned symptom expression can be misinterpreted as inconsistency or deception when evaluators rely on narrow diagnostic norms.
  • Dr. Morales noted that the defendant described psychological distress primarily through physical complaints (headaches, stomach pain, and fatigue) while minimizing emotional language. During testimony, she was asked whether this presentation reflected exaggeration or a culturally shaped pattern of expressing distress outside Western psychiatric frameworks.
• Understanding of test instructions: Misunderstanding test instructions can produce invalid scores that mimic malingering indicators.
  • Dr. Nguyen observed irregular response patterns on validity measures and interpreted them as non-credible responding. On cross-examination, opposing counsel questioned whether the examinee fully understood the task demands, given language nuance, educational background, and unfamiliar testing formats.
• Familiarity with psychological constructs: Tests assume familiarity with Western psychological concepts that may not be universally shared.
  • Dr. Hassan described the examinee’s difficulty endorsing items related to abstract emotional states, such as “feelings of emptiness” or “loss of identity.” In court, he was asked whether limited exposure to psychological language could explain the response pattern rather than intentional distortion.
• Response styles shaped by mistrust of institutions: Institutional mistrust can shape response styles in ways that resemble defensive or deceptive behavior.
  • Dr. Williams interpreted guardedness and minimal disclosure as evasive behavior. During testimony, counsel raised the examinee’s prior experiences with coercive systems and discrimination, suggesting that mistrust—not malingering—could account for the presentation.

As forensic psychologists, we should explicitly document the examinee’s language proficiency and the language in which testing was conducted, along with the examinee's educational history and literacy level, to ensure that test performance is accurately interpreted. Evaluations should also address relevant cultural norms regarding emotional expression, distress, and illness, as these factors may shape symptom presentation and response styles. In addition, prior experiences with authority figures, legal systems, or other institutional settings should be considered and clearly described, as such experiences can influence trust, engagement, and behavioral presentation during forensic assessment.

Failure to address these factors can lead to allegations that malingering conclusions reflect cultural bias rather than valid assessment. Courts are increasingly attentive to these concerns, particularly in criminal proceedings involving marginalized populations.

Acknowledging cultural factors does not weaken malingering assessments: it strengthens them.

As forensic psychologists, we can integrate cultural considerations into malingering assessment by intentionally selecting measures with evidence of validation across diverse populations whenever possible and by carefully evaluating whether the available norms are appropriate for the individual being assessed.

In cases involving cultural, linguistic, or educational complexity, test scores should be interpreted conservatively, with explicit attention to how these factors may influence response patterns or performance. For example, elevated validity indicators may reflect misunderstanding of test demands, unfamiliarity with psychological constructs, or culturally shaped response styles rather than intentional feigning.

Critically, cultural considerations should not remain implicit; evaluators should clearly document how relevant cultural factors were examined, how alternative explanations were weighed, and why they were ultimately ruled in or out when forming malingering-related conclusions. This transparency strengthens both clinical accuracy and forensic defensibility.

Under cross-examination, the ability to articulate this reasoning demonstrates scientific sophistication and ethical awareness. It also protects the expert from accusations of overreach or insensitivity.

As forensic psychologists serving as criminal court experts, we should anticipate that cross-examination will be structured to portray the malingering assessment as inherently subjective, speculative, or biased. Attorneys often focus less on whether standardized measures were used and more on whether the evaluator can defend the reasoning process that led from data to conclusions.

Preparation, therefore, involves anticipating predictable lines of attack, including questions such as: “Isn’t it true that these tests can be failed for many reasons?” “You can’t actually know whether someone intended to fake symptoms, correct?” or “These tools weren’t designed for individuals from this cultural or educational background, were they?” These questions are not flaws in the science of malingering assessment but features of adversarial inquiry designed to test the evaluator’s conceptual clarity and professional restraint.

Effective preparation requires more than memorizing psychometric properties or validity scale cutoffs. It demands deep familiarity with the empirical literature, comfort in acknowledging uncertainty, and the ability to articulate clinical reasoning in a clear, non-defensive manner. Courts tend to view transparency as a marker of expertise rather than weakness; evaluators who can explain why malingering conclusions are probabilistic, context-dependent, and grounded in converging evidence are often more credible than those who present their opinions with unwarranted certainty.

Credibility in criminal court is cumulative and fragile, shaped not only by what is said on the stand but by the internal consistency of methods, reasoning, and testimony. As forensic psychologists, we have to protect our credibility by using precise, standardized terminology, avoiding advocacy-driven language, and demonstrating neutrality and restraint in both written reports and oral testimony. Equally important is the ability to discuss the strengths and limitations of malingering science openly, showing that conclusions were reached through disciplined methodology rather than rhetorical confidence. When credibility is grounded in careful reasoning and methodological integrity, malingering opinions are far more resilient under cross-examination.

As forensic psychologists serving as criminal court experts, we must approach malingering assessment with heightened rigor, humility, and preparation. These evaluations operate at the intersection of science, law, and adversarial advocacy, making them among the most scrutinized opinions we offer.

Defensible malingering assessments require the careful integration of validated measures, transparent reasoning, and explicit consideration of cultural and contextual factors. When we acknowledge limitations, avoid overstatement, and communicate findings with clarity and restraint, our opinions are more likely to withstand legal scrutiny.

In high-stakes criminal proceedings, credibility is our most valuable asset. When malingering assessments are empirically grounded, culturally informed, and communicated defensibly, they not only survive cross-examination—they reinforce the integrity of forensic psychology itself.

Training

• Criminal Forensic Assessment Certificate
  
• Assessment of Malingering
• LIVE: Assessing Malingering: Foundational Issues and Developments
• AAFP: Cultural Considerations in Forensic Psychology
• AAFP: Malingering in Forensic Evaluations
• MMPI-3 in Malingering Determinations

Blog Posts

• You Can’t Pull a Fast One on the MMPI-2: Detection of Coached Malingering
• Assessing Validity in Fitness to Stand Trial: The Role of Cumulative Binomial Probability
• Capacity to classify feigned symptoms of mental illness and/or cognitive impairment using the Structured Inventory of Malingered Symptomatology
• Complexities of Forensic Evaluations for Immigrants Facing Trauma
  
• Multiple Feigning Strategies Used in Competence (CST) Evaluations - CONCEPT Professional Training
  
• MMP…NGRI – Rare Insight Into the MMPI-2-RF Profiles of Evaluees Deemed Not Guilty By Reason of Insanity
• High Base Rate of Feigning Detected Among Defendants Committed for Competency Restoration