Why ICC's prosecutor believes Rody Duterte was caught faking cognitive impairment

MANILA, Philippines — The test administered to former President Rodrigo Duterte was a straightforward and simple memory challenge, designed to be easy enough that even people with severe cognitive damage typically pass.

How Duterte performed on this and other specialized assessments has led the International Criminal Court's (ICC) prosecutor to make a blunt accusation in a court filing: the former president is faking mental decline to avoid trial.

"It strongly appears that Mr. Duterte is feigning cognitive impairments in an attempt to avoid a trial on the merits," ICC Deputy Prosecutor Mame Mandiaye Niang wrote in a filing released Thursday, December 18, which comments on the findings of the independent medical panel that evaluated Duterte's fitness to stand trial.

Although the full medical report on Duterte's fitness level has yet to be released, the ICC prosecution noted in its comments that it is clear Duterte had deliberately underperformed in the tests administered to him. 

The three medical experts found Duterte was "an unreliable historian" about his own health and concluded he could understand the charges, grasp the purpose of proceedings and instruct his lawyers, according to the prosecution filing.

The 'coin in hand test'

The prosecution pointed to one assessment in particular: the "coin in hand test."

This test involves an examiner who shows the patient a coin held in one of their hands. The examiner then closes both hands and asks the patient to close their eyes, count backward and to point the hand holding the coin. This is also typically repeated several times. 

One examiner told Duterte it was a test for short-term memory, according to the court filing. In reality, it's what experts call a "floor test" — designed to be so simple that even individuals with moderate to severe memory impairment should pass.

The test works by exploiting a basic principle of probability, according to a 2014 clinical guide on evaluating feigned cognitive impairment published in Advances in Psychiatric Treatment. Even people with genuine memory issues will get some answers right by random chance. Someone who scores worse than chance is likely faking, according to the guide.  

"The worse an individual performs, the greater the likelihood of malingering," the guide states.

The court documents don't disclose how Duterte actually scored on this test — that information appears in redacted portions marked "[REDACTED]." But the prosecution cited his results as evidence supporting their accusation of feigning.

The three independent medical experts examined Duterte separately between October and November, using what are called "symptom validity tests" — assessments specifically designed to detect deliberate underperformance.

All three reached the same conclusion: Duterte could not make a credible assessment about his own health, according to the prosecution filing. 

According to a separate document, Duterte's defense wants the findings of the panel to be thrown out due to what it says are inconsistencies between members of the panel.

Bu it also acknowledged the panel had unanimously found Duterte fit to stand trial. Among the points of agreement between the members of the panel are that Duterte's "self-reported cognitive complaints and poor neuropsychological test performance are not commensurate with his conversational functioning," defense lawyer Nicholas Kaufman wrote.

Kaufman also argues the panel did not state Duterte was deliberately underperforming in the tests. "All experts appear to agree that Mr Duterte’s poor performance on the tests designed to assess cognitive faculties results from underperformance. Nowhere is it stated, however, that such underperformance is deliberate," he wrote.

A clearer picture of what the panel found is contained in its actual report, which has yet to be released. Many specifics of what the panel found — including details about any underlying medical conditions, the severity of memory problems, and exact test scores — are redacted from the prosecution and defense's filings released yesterday.   

The ICC Pre-trial Chamber I has yet to issue an actual ruling on whether Duterte is fit to stand trial, and whether the postponed confirmation of charges hearing would now be calendared.  

READ FULL STORY: ICC medical panel finds Duterte fit to stand trial