How Forensic Evaluators Handle Uncooperative or Guarded Defendants

Written By David Lombard
A checklist on a desk, representing a structured forensic evaluation process.

David Lombard, PhD | Licensed Psychologist | 30+ Years of Clinical and Forensic Experience

Attorneys sometimes call ahead of a competency evaluation, a little worried, to say that their client will not talk. The defendant may be silent, evasive, hostile, or simply frightened. It is a reasonable thing to worry about, and it is also more common than most people expect.

A defendant facing a competency evaluation is often facing one of the more disorienting moments of a difficult year. Some are living with untreated mental illness. Some have been told, correctly, that anything they say could matter to their case. Some have had bad experiences with authority and expect this to be another one. Guardedness, in other words, is frequently a reasonable human response, not a character flaw or a sign of guilt.

An experienced evaluator does not treat silence or wariness as an obstacle to route around. It is information, and it is handled carefully, within the bounds the law sets for this kind of exam. This article walks through how that process works, what the evaluator relies on when a defendant will not say much, and what attorneys can do to help it go as well as it can.

What Guardedness Looks Like, and Why It Happens

"Uncooperative" can describe several very different presentations, and telling them apart is part of the evaluator's work. A defendant might answer only in short, guarded phrases. Another might appear to disengage entirely, staring at the table or giving one-word answers. Another might be openly hostile, convinced the evaluation is simply another arm of the prosecution. Still another might struggle to organize a coherent answer at all, which is itself relevant to the competency question the evaluation is meant to answer.

Several things commonly drive this behavior. Untreated psychosis, depression, or intellectual disability can all limit a person's ability or willingness to engage with a stranger asking pointed questions. Distrust of the legal system, sometimes earned through prior experience, is common. Attorneys, appropriately protecting their clients, sometimes advise limited participation. And for some defendants, the very symptoms that raise the competency question in the first place (disorganized thinking, paranoia, or an inability to track a conversation) are what make the evaluation itself difficult.

It matters that guardedness is not, by itself, evidence of incompetency or of malingering. It is a starting condition the evaluator has to work with and around.

The Legal Framework the Evaluation Sits Inside

Competency evaluations are not open-ended psychological assessments. They answer a specific legal question, and they are bounded by specific legal protections, both of which shape how an evaluator handles a guarded defendant.

The standard itself comes from Dusky v. United States, 362 U.S. 402 (1960), where the U.S. Supreme Court held that a defendant must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "a rational as well as factual understanding of the proceedings against him." In Indiana, Indiana Code 35-36-3-1 directs the court to order an examination when it has reasonable grounds to believe the defendant lacks the ability to understand the proceedings and assist in the preparation of a defense, and it sets out who may serve as examiner depending on the severity of the charge.

A second, separate line of authority governs what a defendant must be told before the evaluation begins. In Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court held that a defendant must be advised of the right to remain silent and that statements made in the evaluation could be used against him, much like a Miranda warning, before certain court-ordered psychiatric interviews. The Court also found that defense counsel must be told in advance when the exam will reach beyond competency into other issues.

These two lines of authority sit together in the room with the evaluator and the defendant. A defendant who understands, correctly, that he has a right to limit what he says is not obstructing the process. He is exercising a protection the law gives him, and an evaluator has to work within that reality rather than around it.

What an Evaluator Relies On When the Interview Alone Is Not Enough

When a defendant says little, an evaluator does not simply write "unable to assess" and stop. The interview is one source of information among several, and the field has long relied on what is called collateral data when direct interview data is thin.

The AAPL Practice Resource for the Forensic Psychiatric Evaluation of Competence to Stand Trial, published by the American Academy of Psychiatry and the Law, defines collateral data as "information about the defendant that comes from sources other than the defendant's statements during the psychiatrist's interview," including police reports, medical and mental health records, statements from the defendant's attorney, and reports from family members. The same guidance notes that a defendant's irrational behavior, demeanor, and any prior medical opinion are themselves relevant data points for the competency determination.

In practice, this means an evaluator working with a guarded defendant leans more heavily on jail or hospital behavioral records, booking and arrest reports, prior mental health treatment history, school or medical records when available, and direct observation of how the defendant presents: orientation, thought organization, and the ability to track a conversation, even a short one. None of this replaces a good-faith attempt at direct interview, but it means an evaluation is rarely left with nothing to go on. It does mean the report should say plainly what was and was not available, and why.

Guardedness Is Not the Same Question as Malingering

Attorneys and courts sometimes ask whether a guarded or uncooperative defendant is malingering, that is, deliberately exaggerating or fabricating symptoms. It is worth being precise about the difference, because they call for different tools and different conclusions.

Guardedness is withholding. Malingering is fabricating. A defendant who says little may be doing so out of fear, symptomatology, or legal advice. A defendant who is malingering is instead producing an exaggerated or invented clinical picture, usually in hopes of a particular legal outcome. Evaluators do not infer malingering from silence alone. Where it is a live question, standardized symptom validity instruments exist for this purpose, such as the Structured Interview of Reported Symptoms, Second Edition (SIRS-2), which was designed as a structured method for detecting feigned psychological symptoms and remains a widely used benchmark in forensic practice.

The distinction matters practically. Treating a frightened, guarded defendant as though he were malingering risks a flawed opinion and an unfair process. Treating genuine malingering as simple guardedness risks the opposite error. A careful evaluation keeps these questions separate and states its reasoning for whichever conclusion it reaches.

What Attorneys Can Do to Support a Fair Process

Defense counsel is often in the best position to help an evaluation go well, without compromising the client's rights. A few things tend to help:

  1. Prepare the client honestly. Explain, in plain terms, who the evaluator is, what the exam is for, and what rights apply under Estelle v. Smith. A client who understands the process is often less guarded than one who is confused or afraid.

  2. Send records early. Prior mental health treatment records, school records, and any relevant history help the evaluator work with good information even if the interview itself is limited.

  3. Be available for a brief conversation with the evaluator. Counsel's own observations of the client are recognized as a legitimate source of collateral information.

  4. Avoid instructing total silence when possible. There is a real difference between advising a client of the right to limit what is said and directing a client not to participate at all, which can leave the evaluator with very little to work with and can, in some cases, complicate the competency determination itself.

  5. Ask questions about the report. A competency report should explain what sources were used, including any limits on the interview, and a well-supported opinion should be able to withstand that scrutiny.

A competency evaluation works best as a careful, bounded process rather than an adversarial one. That is true for the evaluator, the attorney, and the defendant alike.

Frequently Asked Questions

Does a defendant have to talk during a competency evaluation? A defendant has a right, recognized in Estelle v. Smith, to be informed before the exam that statements may be used against him and that he may remain silent. He cannot be forced to answer questions.

Can a defendant be found incompetent just for refusing to participate? No. Refusal alone is not evidence of incompetency. An evaluator looks at the full picture, including collateral records and behavioral observations, and states plainly where the interview data was limited.

How is guardedness different from malingering? Guardedness is withholding information out of fear, illness, or legal advice. Malingering is deliberately fabricating or exaggerating symptoms. They call for different evaluation approaches, and standardized tools such as the SIRS-2 exist specifically to help assess the latter.

What happens if an evaluator cannot reach a clear opinion? A careful evaluator says so directly, explains what was and was not available, and may request additional records, more time, or an additional interview attempt rather than guessing.

What can an attorney do to help before the evaluation? Explain the process and the client's rights clearly, send relevant records early, and remain available to the evaluator for a brief conversation, which is recognized as legitimate collateral information.

Does Indiana law set out who can perform a competency evaluation? Yes. Indiana Code 35-36-3-1 specifies examiner qualifications based on the severity of the charge, ranging from a single qualified evaluator for lower-level charges to two or three psychiatrists or psychologists for murder or higher-level felony charges.

A Note for Referring Attorneys and Courts

If you have a client whose guardedness or apparent non-cooperation is complicating a competency question, I welcome a conversation about the referral, the available records, and the timeline. You can learn more about my work and reach me through davidlombard.com.

This article is provided for general educational purposes. It is not legal advice and does not create a professional relationship.

References

David Lombard
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