Stephen G. Cobb - Florida Criminal Defense Lawyer

Can People Fake A Mental Health Diagnosis To Avoid Punishment?


Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

That’s one of the biggest fears. This is a key difference when discussing crime and treatment with the legal community versus the treatment community. Now let’s take a real careful look at that. Within the treatment community there’s a concern for the patient. The goal is to help the patient get better. When a forensic examiner is looking at an individual, there’s not this feeling that they’re here to help them. It’s on a basis of suspicion: that you’re guilty of a crime, and we’re here to see if you should be hurt more or not. Right away you don’t have a whole lot of trust, and there is this view that there’s a fear of malingering, that someone’s faking more serious symptoms in order to get a more favorable outcome, which dominates the thinking of the prosecution and their whole modus operandi. When they’re dealing with this type of defense, they laser in on the malingering, and actually try and prove that the person doesn’t really have a problem.

That’s where the brain imaging comes in. In an ongoing crime and treatment case, for example, traveling to meet a minor sex offense, I see a 38-year-old guy, who has never been in trouble in his life, was a model soldier deployed to Iraq twice then deployed to Afghanistan and saw the type of combat that he can’t even tell me about or he’ll have to kill me. This person comes back to the United States, is here less than 30 days, and the next thing you know he’s been chatting with a law enforcement officer, posing as a 13- or 14-year-old girl, and they are arranging to meet for sexual purposes.

On the surface of that, you hear that, and you think, “How awful,” and the public’s immediate kneejerk reaction is quite often to put him in prison forever. I’m the guy who sits there and asks, “Really, how much do you want your taxes to go up?” When I’m talking to people, they get very frustrated by these things because they don’t know what they don’t know, and this is where the education function is critically important. The images do that because, if somebody is trying to fake a broken bone, an x-ray will bust them. You’re not going to find an expert appointed by the defense, an expert appointed by the prosecution and an expert appointed by the court to break any ties, sitting there with different opinions on whether or not a femur has a fracture. The image is going to answer it, and their reputation is going to be on the line. Does the femur have a fracture or not? Yes or no? That eliminates malingering in the example of a bone injury.

SPECT, which stands for Single Photon Emission Computed Tomography, and F-MRI, Frequency and Magnetic Resonance Imaging, as well as other technologies that are frankly even more compelling and exciting, which will be coming down the pipeline in the next few years, tell us clearly whether someone has a brain abnormality or not. If we know, for example, that healthy, normal people had certain patterns that are observed when imaging of the surface of the brain is done, and they have certain patterns of blood flow relative to other parts of the brain when the deep brain images are done, we get a baseline for what a healthy, normal set of brain images looks like. We can further break that down to age and gender.

A five-year-old’s brain is not going to look the same as a 50-year-old’s brain. So you have to have enough normative studies to figure out what a healthy, normal brain looks like, and that’s been done. So we’re able to take these individuals; and when that fear of malingering comes in, I just simply reply to the prosecutor, “Who is your expert who’s going to look at these brain images and say that they don’t say what every expert in the country would agree that they say?” And that eliminates the malingering issue right off the bat. Does this mean that based upon this person’s mental health symptoms, you know they aren’t conflating their symptoms or trying to milk them? No.

People with brain disorders can be extremely easy to deal with because it flies under the radar and they have such a good handle on it, or at the opposite end of the spectrum, they can be what we in the legal profession very candidly call a stabbing pain in the ass. Frankly, I’ve dealt with more of the latter than I have with the former. Yet at the end of the day I know that what’s driving that behavior is that person has an abnormal brain scan, and their brain is not functioning correctly. So it is well past time that we get over this fear of malingering and just assume that many of the people that are going to be dealt with in the criminal justice system are going to stab. The stabbing is going to be where the sun doesn’t shine, and we need to have effective mechanisms that correct that behavior over a period of time.

This isn’t about being soft on crime. This isn’t about being hard on crime. This isn’t even about solving crime because crime is actually fairly easy to solve. Television makes it seem like it’s the hardest thing in the world with all these shows about forensic experts and crime scene investigations. That stuff’s actually not that interesting, even for the people who do it. We need to be focused on solving the problem of crime one person at a time. If the government’s not going to put the money on the front end, which is really where it needs to go, then I’m going to fight the correct, moral and proper fight when people are falsely accused, but at the same time we are not the conductors on the railroad to state prison, which is where we are housing people who are mentally ill. In the vast majority of cases, these people can be effectively diagnosed, treated and re-integrated into our society as productive taxpayers instead of a continuous financial drain.

Florida is financially hemorrhaging from the cost of our criminal justice system for political reasons and because we send every village idiot to Tallahassee. What we’ve effectively done is grabbed a few cans of gasoline, poured it on every bit of money that we have and lit it on fire. This has to end.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

For more information on Faking Mental Health Diagnoses, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 466-1522 today.

Stephen G. Cobb, Esq.

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