The defense may dispute mild and even moderate traumatic brain injury, particularly where neuroimaging is inconclusive. The defense opportunistically may contest the fact of brain injury and, alternatively, may assert that the victim is malingering.
The victim’s lawyer must protect his brain injury client against any such unfounded ploy with motions in limine, objections at trial, etc. As gatekeeper, Virginia Courts must be vigilant against introduction of malingering testimony, which is highly prejudicial and variously inadmissible.
Although the Virginia Supreme Court has not ruled substantively on malingering testimony, many of its opinions provide ample general guidance such evidence. For example, the defense bears the burden of proving that such testimony is founded on proper expert qualifications, assists the jury, does not invade the jury’s province, does not violate physician-patient confidentiality, is not speculative, is not missing variables, does not include hearsay, is based on scientifically reliable methods, is to the appropriate degree of certainty, is not cumulative, is more probative than prejudicial, etc.
