(96) One group of scholars determined that both lay persons and expert witnesses tend to significantly overestimate the occurrence of dissociative amnesia and "view dissociative amnesia as the rule and feigned amnesia as the exception." (97) Their literature review, however, led them to conclude that "it would be wise to reverse these probability estimates." (98) Indeed, legal commentators have confidently asserted the impossibility of detecting malingered amnesia for decades.
(100) It has been noted that forensic evaluators, unfortunately, often use interviews with the defendant as the sole source of information for their opinions on whether a claim of amnesia is genuine or malingered. (101) It has been asserted that "[i]t is only on the basis of psychological tests and tasks, that an expert will be able to identify simulators," (102) and thus "experts who at the request of the court have to evaluate a case in which crime-related amnesia is claimed can and should do more than just interview the defendant." (103)
In fact, researchers in several recent studies have attempted to detect the presence of malingered amnesia in clinical and forensic settings, but with varying degrees of success.
(112) The Structured Inventory of Malingered Symptomatology (SIMS) is a questionnaire that consists of seventy-five dichotomous (true-false) items that asks defendants to answer questions about how they experience amnesia.
Because some of the practical concerns have been reduced as better techniques have been developed for detecting malingered amnesia, courts should consider how the problems posed by the amnesic criminal defendant can be better addressed.
Practical difficulties associated with distinguishing genuine from malingered cases of amnesia will continue to challenge the courts, but competence to stand trial is such a fundamental predicate of the right to a fair trial that justice demands that claims of amnesia be heard and evaluated based on an individualized, functional analysis of the impact of any established amnesia on the defendant's competence to stand trial.
Parwatikar et al., The Detection of Malingered Amnesia in Accused Murderers, 13 BULL.