Neuropsychological Malingering Determination: The Illusion of Scientific Lie Detection

Humans believe that other humans lie, especially when stakes are high. Stakes can be very high in a courtroom, from substantial amounts of monetary damages in civil litigation to liberty or life in criminal cases. One of the most frequently disputed issues in U.S. courts is whether litigants are malingering when they allege physical or mental conditions for which they are seeking damages or which would allow them to avoid criminal punishment. Understandably, creating a scientific method to detect lies is very appealing to all persons engaged in lie detection. Neuropsychologists claim that they can use neuropsychological assessment tests (Malingering Tests) to determine if an examinee is malingering. Relying on those tests, neuropsychologists have been offering expert testimony in disputes over litigants’ malingering status increasingly since the 1990s. Courts have generally admitted this expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny (Daubert Standard). <br><br>However, a recent comprehensive examination of the malingering literature shows that the Malingering Tests are not scientifically validated. This Article cautions against the admission of neuropsychological expert testimony under the Daubert Standard in light of these scientific flaws. With its aura of scientific certainty, expert testimony on malingering carries the risk of usurping the jury’s traditional role of assessing the litigants’ credibility. Additionally, admission of experts’ malingering testimony also violates litigants’ Fifth Amendment right against self-incrimination. The Malingering Tests are an invalid shortcut disguised as a scientific solution that over-simplifies the complexities of human behavior. Accepting this shortcut into our courtrooms risks great injustice and undermines the legitimacy of our legal system.