Police perjury

Police perjury (or testilying in United States police slang[1][2]) is the act of a police officer giving false testimony. It is typically used in a criminal trial to "make the case" against a defendant believed by the police to be guilty when irregularities during the suspect's arrest or search threaten to result in acquittal.

It also can be extended further to encompass substantive misstatements of fact for the purpose of convicting those whom the police believe to be guilty, procedural misstatements to 'justify' a search and seizure, or even to include statements to frame an innocent citizen.[1][3] More generically, it has been said to be "[l]ying under oath, especially by a police officer, to help get a conviction."[4]

United States
See also: Blue wall of silence

The extent of the practice is hotly debated. Rank and file policemen, police advocates and police unions acknowledge that it does occur but deny that it is widespread or systemic. Defense attorney Alan Dershowitz argued otherwise in a 1994 New York Times article, "Accomplices to Perjury", in which he said:

As I read about the disbelief expressed by some prosecutors... I thought of Claude Rains's classic response, in Casablanca on being told there was gambling in Rick's place: "I'm shocked—shocked." For anyone who has practiced criminal law in the state or Federal courts, the disclosures about rampant police perjury cannot possibly come as a surprise. "Testilying"—as the police call it—has long been an open secret among prosecutors, defense lawyers, and judges.[5][6]

In 1995, the Boston Globe reported that New York Police Commissioner William J. Bratton created a furor when he said he agreed with most of Dershowitz's statement.[7] The Globe quoted Richard Bradley, president of the Boston Police Patrolmen's Association: "I find it incredible that he would say that. Every day all over the country, police officers are testifying. Everyone realizes they are testifying under oath. If this was this much a problem, it would have come to light over the years." Bradley said that in 27 years on the Boston force he had never encountered the practice.

In a 1996 article in the Los Angeles Times, "Has the Drug War Created an Officer Liars' Club?", Joseph D. McNamara, then chief of police of San Jose, said "Not many people took defense attorney Alan M. Dershowitz seriously when he charged that Los Angeles cops are taught to lie at the birth of their careers at the Police Academy. But as someone who spent 35 years wearing a police uniform, I've come to believe that hundreds of thousands of law-enforcement officers commit felony perjury every year testifying about drug arrests." He noted that "Within the last few years, police departments in Los Angeles, Boston, New Orleans, San Francisco, Denver, New York and in other large cities have suffered scandals involving police personnel lying under oath about drug evidence."[8]

In 2011, after finding a police officer, Jason Arbeeny, guilty of official misconduct for planting drugs on a suspect, Justice Gustin L. Reichbach of the New York Supreme Court wrote that he "thought [he] was not naïve, but even this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed".[9] The ex police detective was then sentenced to five years of probation and 300 hours of community service.[10] Also in 2011, former San Francisco Police Commissioner Peter Keane wrote that lying under oath was a "routine practice" for narcotics officers.[11]

In 2019, the United States Foreign Intelligence Surveillance Court called out the FBI and the National Security Division of the United States Department of Justice for systematically lying to the court in applications for wiretaps.[12] This practice was documented in a previous report released by the DoJ's Inspector General, Michael Horowitz, and cited by the court.[13][14] The Washington Post reported that "It was particularly egregious that an FBI lawyer altered an email..." (that was then provided to the court).[15]

Despite the alleged beneficent public purpose behind police telling lies—thus the use of the term "testilying" to make clear the fact that these are intentional lies—the existence has severe repercussions. Police officers can put their livelihood and their pension on the line in furtherance of a conspiracy. And if they are caught in the lie, guilty criminal defendants can be set free because of otherwise unwarranted acquittals, or because the evidence is tossed at a suppression hearing. And, of course, when the police lie under oath, innocent people can be convicted and jailed. Hundreds of convictions have been set aside as a result of such scandals.[16]

Some sources say it is both a police and prosecutorial problem, and is a systemic response to the fruit of the poisonous tree doctrine recognized in Mapp v. Ohio.[17] Other authors have drawn a connection between perjury and an increased emphasis on the number of arrests and convictions made.[11][18]

Police officers who have been dishonest are sometimes referred to as "Brady cops". In Brady v. Maryland, the Supreme Court held that prosecutors are required to notify defendants and their attorneys of any favorable evidence, such as if a law enforcement official involved in their case has a sustained record for knowingly lying in an official capacity.[19]

Remedies

Some suggest that narrowing or blunting the exclusionary rule may get rid of the incentive for testilying. This has happened to the extent that the Supreme Court in the United States has recognized exceptions like "good faith". Some argue that increased civil liability may have a prophylactic effect on police misconduct. Others suggest that the ubiquity of video recordings, both by the police and civilians, will operate to slow down the misconduct and reverse the trend.[20]

A common trope amongst police officers in the United States is the aphorism: "If you lie, you die." This is indicative of the essential need for trustworthiness in the job—police officers are society's observers, enforcers and professional witnesses—and a warning that any deliberate falsehood can undermine the officer's continued usefulness, resulting in termination. Such terminations have been judicially enforced.[21] As Houston Police Chief Art Acdevedo said about a perjured affidavit supporting a raid: "That's totally unacceptable. I've told my police department that if you lie, you die. When you lie on an affidavit, that's not sloppy police work, that's a crime."[22]

See also

References
  1. Slobogin, Christopher (Fall 1996). "Reform The Police: TESTILYING: POLICE PERJURY AND WHAT TO DO ABOUT IT". University of Colorado Law Review. Boulder, Colorado: University of Colorado Law School. 67: 1037. Retrieved December 28, 2012.
  2. Hays, Tom (March 21, 1996). "Law and Disorder: NYPD Tackles 'Testilying'". AP News. Retrieved June 10, 2020.
  3. Editorial Board (July 2, 2015). "Editorial: Police perjury: It's called 'testilying'". Chicago Tribune. Retrieved March 8, 2019.
  4. McFedries, Paul. "testilying". Word Spy. Retrieved December 28, 2012.
  5. Dershowitz, Alan (May 2, 1994). "Accomplices to Perjury". The New York Times. p. A1. Retrieved December 28, 2012.
  6. Dershowitz, Alan M. (December 1, 1998). "Testimony on Testilying". United States House of Representatives Judiciary Committee. Retrieved December 28, 2012.
  7. "Bratton calls 'testilying' by police a real concern". Boston Globe. November 15, 1995.
  8. McNamara, Joseph D. (February 11, 1996). "Has the Drug War Created an Officer Liars' Club?". Los Angeles Times. Retrieved December 28, 2012.
  9. Stolarik, Robert (November 1, 2011). "Detective Is Found Guilty of Planting Drugs". New York Times. Archived from the original on February 23, 2020. Retrieved March 13, 2015.
  10. Yaniv, Oren (February 3, 2012). "Ex-cop Jason Arbeeny cries for judge, gets probation; Judge Gustin Reichbach could have given him 4 years". New York Daily News. New York. Archived from the original on February 4, 2012. Retrieved February 27, 2016.
  11. Keane, Peter (March 15, 2011). "Why cops lie". SFGate. Archived from the original on April 17, 2014. Retrieved March 13, 2015.
  12. Rosemary M. Collyer, Presiding Judge, United States Foreign Intelligence Surveillance Court (December 17, 2019). "In Re Accuracy Concerns Regarding FBI Matters Submitted to the FISC" (PDF).CS1 maint: multiple names: authors list (link)
  13. Inspector General Michael Horowitz (December 9, 2019). "Review of Four FISA Applications and Other Aspects of the FBI's Crossfire Hurricane Investigation" (PDF). Department of Justice Office of Inspector General.
  14. Jerry Dunleavy (December 9, 2019). "DOJ inspector general finds 17 'significant errors or omissions' in Carter Page FISA applications". Washington Examiner. These errors and omissions resulted from case agents providing wrong or incomplete information to the National Security Division’s Office of Intelligence and failing to flag important issues for discussion.
  15. Editorial Board (December 18, 2019). "The FBI must avoid more Carter Page fiascos". The Washington Post. It was particularly egregious that an FBI lawyer altered an email that would have otherwise painted Mr. Page in a less concerning light.
  16. Rocieniewski, David (January 5, 1997). "Testilying in New York: "Most of the officers at the 30th Precinct during that time were lying about arrests they were making. That's just the way things were done."". New York Times. Retrieved December 26, 2012.
  17. Malinowski, Nick (February 3, 2013). "Testilying: Cops are liars who get away with perjury". Retrieved April 10, 2014.
  18. Alexander, Michelle (February 2, 2013). "Why Police Lie Under Oath". New York Times. Archived from the original on July 29, 2014. Retrieved March 13, 2015.
  19. Kamb, Lewis; Nalder, Eric (January 29, 2008). "Cops who lie don't always lose jobs". Seattle Post-Intelligencer. Retrieved January 2, 2013.
  20. Balko, Radley (April 16, 2014). "The Watch: How do we fix the police 'testilying' problem?". Washington Post. Retrieved July 13, 2015.
  21. ""You Lie, You Die" – Dishonesty Derails Discrimination Case". February 29, 2016. Retrieved March 8, 2018. It's an expression you hear often among police officers and other sworn employees: 'You Lie, You Die.' That is, if you are caught being deceptive about any work-related subject, you will be terminated and your career will be over. This concept was endorsed in a recent appeals court case that can teach lessons to all employers about the importance of honesty in the workplace.
  22. Agorist, Matt (February 15, 2019). "'You Lie, You Die': Cops Admit to Lying About Raid that Left Innocent Couple Murdered". Retrieved March 8, 2019.

Sources
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