ABSTRACT
A criminal defendant’s history of mental illness has, for all practical purposes, become a doubleedged sword for criminal defense attorneys. On one hand, psychiatric defenses, such as insanity and diminished capacity, are available in a limited number of cases, and mental illness may tend to mitigate punishment at sentencing. On the other hand, however, a criminal defendant’s claim of mental illness can sometimes be used to portray him as antisocial, dangerous, and violent. It also sets up a possible characterization by prosecution experts as a malingerer-one who fakes or exaggerates psychiatric or cognitive symptoms in order to gain some type of benefit in the system. This label is particularly problematic for a defendant because it not only challenges the existence of the claimed mental illness itself, but it also interjects purposeful deceit on his part as well. In this chapter, I will focus on a recent client of mine charged in 2003 with two murders committed two months apart in separate counties. Mental health issues, including a claim by a prosecution expert that the defendant was a malingerer, played an integral role in the resolution of the cases.
