Police Perjury and Other Prosecutorial Mischief
By Robert Moore
“Large majorities of …police officers…said that they would not report the corrupt acts of fellow officers to Internal Affairs, even anonymously, [because]…[b]eing labeled a “rat” may incur the ultimate price: loss of one’s life in a conflict with criminal suspects because other officers would be reluctant to respond in support.”
1
John Stokes, a constable of Perith was indicted for willful and corrupt perjury on the 21 st of February last, before George Druitt, Esq., J.P., at Perith. Stokes swore at Perith, before the judge that a prisoner who he had been transporting in handcuffs, 2
“knocked him down, and committed a felony upon him, that he (Stokes) fired at” [the prisoner] with a pistol, which knocked off the prisoner’s cap. The prisoner, Leary, swore “that he never had handcuffs on during the journey…and that when Stokes fired at his cap,”3 Stokes held it in his left hand “and fired the contents of the pistol through it, saying, he could serve Leary that way if he liked.” 4
1
Gabriel J. Chin, et al., The “Blue Wall of Silence” as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, Perjury, 59 U. Pitt. L. Rev. (1998). 2 Supreme Court of New South Wales , , R. v. Stokes, Stokes , Australian, Aug. 22, 1834. 3 Id. 4 Id.
1
At the jury trial for police perjury, “several witnesses proved that Leary was not handcuffed, and the evidence altogether was of so conclusive a nature, that there could not be the slightest doubt of [the constable’s guilt].”
5
The jury requested that Leary put on the cap, “and on examining it on his head, it appeared that if the ball had penetrated where the holes were, it must inevitably have shot him dead on the spot.” 6 “The learned judge was about to sum up, when the Foreman of the Jury informed him they had made up their minds, [and] a verdict of guilty was immediately recorded.”
7
Later, “John Stokes…was put to the bar in double irons to receive the judgment of the court.”8 He was convicted of “willful and corrupt perjury. In passing sentence, His Honor said it had seldom been his lot to meet with a case so pregnant with human depravity as that of the [constable]… and His Honor only regretted that the law would not permit him to visit it with a heavier punishment.”
9
The story just described occurred in Australia in 1834, and although punishments for law enforcement have changed, the problem of police perjury has worsened over the years. We will visit Constable Stokes’ punishment phase at the end of this article.
I.
Introduction
5
Id. Id. 7 Id. 8 R. v. Stokes, Stokes , Australian, May 20, 1834; See also, Sydney Herald, May 22, 183 4; Sydney Gazette, May 20 1834 . For commentary, commentary, see Australian, May 20, 1834; it claimed that this was “the most revolting perjury we ever saw recorded.” 9 R. v. Stokes, Sept. 2, 1834. 6
2
There seems to be an unwritten code in police departments that “prohibits 10
disclosing perjury or other misconduct by fellow officers.” This code is known as the 11
“blue wall of silence.”
This article will explain the reasons why this wall of silence has
been able to flourish in the law enforcement profession. Also, police deception and perjury occur in several phases of an investigation. This article will explain these phases, and the types of trickery and “testilying” used by law enforcement in the name of justice. Finally, judges and prosecutors have failed to respond to police perjury, and the system, in fact, encourages it. This article will present various proposals for curbing police perjury and deterring those police officers from being pulled into the “blue wall of 12
silence.”
II. A.
Men in Blue The Problem of Police Perjury
Perjury is defined as “ the willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being 13
material to the issue or point of inquiry and known to such witness to be false.”
“As the only representatives of the criminal justice system that most citizens see in everyday life, police officers serve important symbolic functions, and the entire society
10
Chin, supra Chin, supra note 1, at 237. Id. 12 Id. 13 Black’s Law Dictionary 1139 (6 th ed. 1990). 11
3
14
suffers if their behavior violates the rule of law.”
They are state licensed agents who
may “use force—deadly force force if necessary—to implement the law’s constraints upon our 15
behavior.” This is why it is so important that these agents be held to such a high 16
standard of honesty and integrity.
Police perjury is very common.
17
It is committed by law enforcement from the
initial investigation of a suspect, through to final disposition, and is not discouraged by 18
judges.
B.
Reasons
Police perjury exists because it is allowed to exist. 20
end justifies the means.”
19
It is accepted because “the
Judges accept lying by law enforcement because of the
rationale that the criminal should not go free.
21
Also, “Judges do not like to call other
government officials liars, especially those who regularly appear in their courts.”
22
This is not to say that perjuring officers are not moral human beings. In fact, most 23
lying is committed by decent cops who “want to do something to help society.”
14
It is the
Morgan Cloud, Judges, ‘Testilying,” and the Constitution, 69 S. Cal. L. Rev. 1341, 1354 (1996); see also, Burdeau also, Burdeau v. McDowell, 256 U.S. 465, 477 (1921) (Brandeis, J., dissenting) (expressing concern about the effects on civil liberties, and the ‘common man’s sense of decency and fair play’ that would follow from a decision allowing the government to “knowingly benefit” from illegally obtained evidence.) 15 Morgan Cloud, Judges, Cloud, Judges, ‘Testilying,’ and the Constitution, Constitution, 69 S. Cal. L. Rev. 1341, 1354 (1996). 16 Id. at 1356. 17 Myron W. Orfield, Jr., The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. Chi. L. Rev. 1016, 1051 (1987). 18 See id . at 1049-50. 19 Cloud, supra Cloud, supra note 15, at 1355. 20 Andrew J. McClurg, Good Cop, Bad Cop: Using Cognitive Dissonance Theory to Reduce Police Lying, 32 U.C. Davis L. Rev. 389, 405 (1999). 21 Id. 22 Id. 23 Id. at 411.
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24
code of silence that can affect the judgment of honest co ps. There is a fear of “direct, 25
physical danger to officers who breach the co de of silence.” Breaching the code can 26
lead to retaliation,
27
improper reprimands by upper ranks of the department,
28
“inappropriate negative performance evaluations, or retaliatory assignment changes.” Both corrupt and initially honest officers can fall into this vicious circle, the temptation to “lie on the witness stand”
30
29
where
is very strong. Additionally, the officer
might “falsify documents, lie to the media and the public, and generally cover-up any and all acts or events occurring under the blue shroud, which may foment the wrath of the 31
code of silence.”
III.
Perjury: Motive and Opportunity
A.
Undercover Agents
The very nature of being an agent working under cover involves some form of 32
deceit. “Typically, “Typically, an undercover agent gives or presents a fake identity and a fabricated history, denies any involvement with the police, an d engages in any number of other lies.”
33
The agent then moves in undercover und ercover to obtain evidence through deceit. Such
24
See United States v. Abel, 469 U.S. 45, 54 (1984). Chin, supra Chin, supra note 1, at 260. 26 Id. at 261. 27 Id. 28 Id. 29 See id. 30 Chin, supra Chin, supra note 1, at 261. 31 Id. 32 Christopher Slobogin, Deceit, Slobogin, Deceit, Pretext, and Trickery: Investigative Lies by the Police, 76 Or. L. Rev 775, 778 (1997). 33 Id. 25
5
actions are justified in order to “gather general information about criminal activity and the key figures”
34
35
that would otherwise be inaccessible.
Courts have been supportive of this sort of deception and rarely overturn a 36
conviction based on investigative entrapment.
B.
Fourth Amendment Search and Seizures
Police often manipulate search and seizure policies in order to catch criminals. 37
Two varieties of lies are used to effectuate a search and seizure.
38
First, the police officer may create a pretextual situation. Permission might be sought to enter a house “for some innocuous purpose (such as investigation of a 39
nonexistent burglary), when their actual intent is to conduct a search” of the interior of 40
the house once inside. Pretextual traffic stops can also be used to engage in searches of 41
automobiles “to get a better look at a car’s occupants and contents.”
The second variety of police lying that arises in a search and seizure situation is more straightforward. (a) Police may claim they do not need a warrant when they know
34
Id. at 779. Id. 36 Id. at 780. 37 Jerome Skolnick, Justice on Trial 196-197 (2d ed. 1975). 38 E.g., United States v. Phillips, 497 F.2d 1131 (9th Cir. 1974); see also, P eter K. Manning, Lying, Secrecy, and Social Control in Police Deviance 106 (Thomas Barker & David L. Carter eds., 1986). 39 Slobogin, supra Slobogin, supra note 32, at 782. 40 Id. 41 Id.; see generally Wayne Wayne R. LaFave, The Present and future Fou rth Amendment, 1995 U. Ill. L. Rev. 111, 117-1 9 ( where he states that “in an incredible number of drug cases, the encounter with the police commenced with a seemingly innocuous traffic violation, such as the momentary movement movement of a tire onto the fog line at the right edge of the highway or a breaking of th e 65 m.p.h. speed limit by but a few miles, well short of the customary tolerance.”). 35
6
42
43
the law requires they have one; (b) “assert they have a warrant when they do not,” or; 44
(c) claim “they can get a warrant when in fact they know they can not.”
45
So in either variety, police can utilize their “technical legal authority,” or outright lie, in order to enter areas otherwise off limits without complying with the Fourth 46
Amendment.
C.
The Interrogation Manual
“Fabrication in the interrogation context is openly acknowledged by the police 47
today.” In fact, the leading interrogation manual, Criminal Interrogation and 48
Confessions by Fred E. Inban, Reid, and Buckley touts the merits of deceptive police practice, despite looming Miranda requirements.
49
The book’s techniques include, (1) 50
showing false sympathy sympathy for the suspect by becoming his or her ‘friend’…; (2) reducing guilt feelings through lies “(eg; by telling a person suspected of killing his wife that he was not as ‘lucky’ as the interrogator, who had recently been on the verge of seriously 51
harming his nagging wife when the doorbell rang);” (3) prodding the suspect into 52
negotiation by exaggerating the crime; (4) “lying that suggests the futility of denying
42
Slobogin, supra Slobogin, supra note 32, at 781. Id. 44 Id. 45 Id . at 785. 46 Id. at 783. 47 Id. at 785. 48 Fred E. Inbau et al., Criminal Interrogation and confessions (3d ed. 1996). 49 See Miranda v. Arizona, 384 U.S. 436, 448-58 (1966) (where it is stated that “[t]he current practice of incommunicado interrogation is at odds with on e of our Nation’s most cherished principles—that the individual may not be compelled to incriminate himself.”). 50 Inbau, et al., supra al., supra note 48, at 100. 51 Slobogin, supra Slobogin, supra note 32, at 785-86. 52 Inbau, et al., supra al., supra note 48, at 122-3. 43
7
the truth (eg; statements that sufficient evidence already exists to convict when it does 53
not);
D.
54
and (5) “playing one codefendant against another.”
Overcharging and Crime Invention
55
It has become an accepted practice by police to overcharge suspects. The belief is that a suspect must be guilty of something, and the extra charges will inevitably be reduced during plea bargain sessions.
56
Additionally, “police officers will also invent 57
cover charges when a suspect is injured during apprehension or while in custody.” The officer might claim that the injuries stemmed from “the defendant’s assault on the officer 58
or on the defendant’s having resisted apprehension.”
E.
Police Reports
59
Police reports present ample opportunity opp ortunity for police deception and perjury. These reports are considered sworn statements, and their main function “is to recite those basic 60
facts obtained or observed which constitute probable cause to support arrest.”
Individual officers must testify to the facts recited in the report at the probable cause hearing, and if necessary, at the trial.
61
53
Id. at 131. Slobogin, supra Slobogin, supra note 32, at 786. 55 Stanley Z. Fisher, “Just the Facts, Ma’am”: Lying and the Omission of Exculpatory Evidence in Police Reports , 28 New Eng. L. Rev. 1, 16-17 (1993). 56 Id. 57 David N. Dorfman, Proving Dorfman, Proving the Lie: Litigating Police Credibility, 26 Am. J. Crim. L 455, 476 (1999). 58 Id. 59 See Fisher, supra Fisher, supra note 35, at 17-18, 26-31. 60 Dorfman, supra Dorfman, supra note 37, at 492. 61 Id. 54
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Such reports create an opportunity for defense attorneys to impeach the officer 62
about certain facts he or she has forgotten on the actual report. “Hearings and trials may 63
take place many months after the events they concern,” and an officer may not remember every detail. Accordingly, Accordingly, the police reports are drafted with a “minimal recitation of the facts, so skeletal that the report permits the police officer to testify 64
untruthfully, but not inconsistently with the report’s bare-bones account of the case.” 65
“Minimalist” policies, if widely accepted by the judiciary, “can convince the judge that such factual detail [in a police report], however material, would not naturally 66
be mentioned, and therefore has little impeachment value against” the police witness.
67
The testifying officer can easily account for any omission in the report on the spot, and 68
the judge would make no negative inferences concerning the omissions. Minimalist policies include the use of boilerplate warrants. 70
69
A large percentage
of these warrants “are based on highly” similar probable cause affidavits.
71
For
example, a 1988 study based on a sample of randomly selected informant warrants, warrants, reveals that about ¾ of the warrant affidavits included the following factors:
1) The warrant directs the officer to search the home of an unknown person or persons only known by a nickname. 2) The anonymous informant relied upon in the warrant affidavit has provided information on two, three, or four prior occasions.
62
Fisher, supra Fisher, supra note 35, at 32. Dorfman, supra Dorfman, supra note 37, at 492. 64 Id. at 493. 65 Id. 66 Id. 67 Fisher, supra Fisher, supra note 35, at 26-31. 68 See Fed. R. Evid. 801(d)(1); Charles T. McCormick, McCormick On Evidence (3d ed. 1984) § 34. 69 Myron W. Orfield, Deterrence, Orfield, Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, Courts, 63 U. Colo. L. Rev. 75, 102-3 ( 1992). 70 Id. at 103. 71 Id. 63
9
3) The information received in the past from the informant has lead to a seizure of narcotics two, three, or four times. 4) The substance seized was tested and found to be narcotics two, three, or four times. 5) The information supplied by the informant lead to arrest two, three, or four times. 6) The warrant affidavit states the length of time the officer had known the informant. 7) The warrant affidavit states the length of time the informant had been using drugs. 8) The informant made a preliminary purchase of contraband at the place to be searched. 9) The informant saw a greater quantity of drugs at the place to be searched. 10) The informant used the drug and got a “high” feeling like the last 72 time he used it.
F. The Credibility Contest
Testifying Testifying police officers are at a distinct advantage over their civilian counterparts. First of all, the police po lice witness is “almost always testifying testifying as a professional, that is, someone deemed to be a trained observer, a trained investigator, trained in the 73
law, trained in enforcement techniques, even trained in testifying.” 74
The officer becomes a “de facto” expert regarding “testimony of a technical and 75
specialized nature,” making it difficult for the defense to challenge the officers 76
qualifications. Secondly, having the status of de facto expert and credibility on his or
72
Id. at 103-4. Dorfman, supra Dorfman, supra note 37, at 499. 74 Id. at 500. 75 Id . at 501. 76 See McCormick, supra McCormick, supra note 68, at § 13. 73
10
her side, the police officer is virtually free to “inject characterizations and opinion into 77
personal observation testimony under the Federal Rules of Evidence.”
IV.
The Primary Source of Police Perjury: Dropsy
During the “revolution in criminal procedure accomplished by the Warren 78
Court,”
illegally seized evidence was beginning to be suppressed by courts. Before 79
Mapp v. Ohio, 367 U.S. 643 (1961) , a law enforcement en forcement officer could testify “that he stopped the defendant for little or no reason, searched him, and found narcotics on this 80
person…The search was illegal…but the evidence was admissible.” The officer could testify truthfully truthfully about the circumstances of the stop since the evidence would not be 81
suppressed.
82
Then Mapp was decided. In that case, a woman was convicted of knowingly having lewd and lascivious books, pictures, and ph otographs in her possession in 83
violation of § 2905.34 of Ohio’s Revised Code. The Supreme Court in Ohio found her conviction to be valid even though it was “based primarily upon the introduction in evidence of lewd and lascivious books and pictures unlawfully seized during an unlawful 84
search of defendant’s home…”
The police officers arrived at Miss Mapp’s house after receiving information that “a person [was] hiding out in the home, who was wanted for questioning in connection
77
Dorfman, supra Dorfman, supra note 37, at 500-01. Morgan Cloud, The Dirty Little Secret, 43 Emory L.J. 1311, 1316 (1994). 79 Mapp v. Ohio, 367 U.S. 643 (1961). 80 Morgan, supra Morgan, supra note 78, at 1317. 81 Id. 82 367 U.S. 643 (1961). 83 Id. 78
11
with a recent bombing, and that there was a large amount of …paraphernalia being 85
hidden in the home.”
The police knocked on the door and demanded entrance, but Miss Mapp refused 86
to admit them without a search warrant, after phoning her attorney. Additional officers 87
arrived at the scene and the house was forcibly entered. Miss Mapp’s attorney soon 88
arrived but was prohibited by police from meeting with his client. Miss Mapp demanded to see a warrant and when an officer waived a piece of paper (purported to be a search warrant) in front of her face, she grabbed for it and was restrained by the 89
police.
No warrant was produced at trial, but the Ohio Supreme Court upheld her conviction because it held “that in a prosecution in a state court for a state crime, the Fourteenth Amendment does not forbid the admission of evidence obtained by an 90
unreasonable search and seizure.”
The United States Supreme Court held that the exclusionary rule is part of the 91
Fourth and Fourteenth Amendments. It did not make sense, according to the Court, for the same evidence, which is rejected as illegally seized in a federal case, to be acceptable in a state case.
92
No longer could police get on the stand and testify that evidence was illegally 93
seized without that evidence being suppressed.
84
Id. Id. at 644. 86 Id. 87 Id. 88 Id. 89 Id. 90 Id. at 645-46. 91 Id. at 657. 92 Id. 93 Morgan, supra Morgan, supra note 78, at 1317. 85
12
94
That is when police p olice developed “dropsy” testimony. If the officer on the stand testified that the defendant dropped the contraband on the ground, then any search of the 95
suspect would more likely be reasonable and the evidence admissible. Police testimony regarding “dropsy” “dropsy” has become so common, that it appears that the same script is being 96
passed around from department to department.
A former New York Assistant District Attorney described his experiences with “dropsy” testimony: “In dropsy cases, officers justify a search by the oldest of o f means: they lie about 97
the facts.”
The officer says, “As I was coming around the corner I saw the defendant 98
drop the drugs on the sidewalk, so I arrested him.”
The assistant D.A. related that, “one
renowned federal judge…complained that he had read the same testimony in too many 99
cases for it to be believed any longer as a matter of law.”
V.
Why is Perjury Accepted?
A.
Judges
100
“Judges know about p olice lying.”
In fact, “it is an open secret long shared by
prosecutors, defense lawyers and judges that perjury is widespread among law 101
enforcement officers.”
But why do judges tolerate it? First of all, it can be hard to
determine whether a witness is lying, “particularly “particularly if we start with the reasonable
94
Id. Irving Younger, The Perjury Routine, The Nation 596-97 (1967). 96 Id. 97 McClurg, supra McClurg, supra note 20, at 400. 98 Id. 99 Id.; see also David Heilbroner, Rough Justice, Days and Nights of a Young D.A. 29 (1990). 100 McClurg, supra McClurg, supra note 20, at 404. 95
13
102
assumption that witnesses who are police officers usually tell the truth.”
Successful lies 103
remain undetected, “and we would expect a perjurer to attempt to conceal the crime.”
Second, police perjury can lead to the suppression of highly probative evidence, and many judges (especially elected judges) are reluctant to throw o ut evidence that may 104
result in a guilty defendant being set free. 105
defendants are guilty of something,”
Third, “some judges…believe that most
so a little police perjury would not be highly
detrimental to the criminal justice system. Fourth, judges do not want to accuse other 106
government officials of lying.
Fifth, and most disturbing of all, judges can be victims 107
of retaliation just as honest police officers can be.
There have been several crusades to destroy judges perceived to be soft on crime. 108
An example of this form of intimidation took place in 1996.
Judge Harold Baer, Jr., suppressed eighty pounds of cocaine seized by two New 109
York police officers from Carol Bayless’ car, along with a later videotaped confession. He held that the officers did not have reasonable suspicion to stop the vehicle.
110
He also stated that black residents in the neighborhood had good reasons to fear the 111
police.
Judge Baer disbelieved officer Richard Carroll’s testimony as to the state’s
version of events. The judge stated, “I find her (Bayless’) statement to be credible and
101
Stuart Taylor, Jr., For Jr., For the record, Am. Law., Law., Oct. 1995, at 72 (quoting Judge Kozinski). Cloud, supra Cloud, supra note 78, at 1321-22. 103 Id. at 1313. 104 Id. at 1322. 105 Id. at 1323. 106 Id. 107 See Stephen B. Bright , , Political Attacks on the Judiciary: Can Justice Be Done amid Efforts to Remove Judges from Office for Unpopular Decisions?, 72 N.Y.U. L. Rev. 308, 312-13, 315-17, 319 (1997) (for an example of judge harassment.). 108 McClurg, supra McClurg, supra note 20, at 406. 109 United States v. Bayless, 913 F.Supp. 232, 237 (S.D.N.Y.), vacated, 921 F.Supp. 211 (S.D.N.Y. 1996). 110 Id. 111 Id. at 240. 102
14
reject the testimony proffered by Officer Carroll.”
112
Officer Carroll said Bayless’ car
was stopped because: 113
(1) the vehicle had an out-of-state license plate;
(2) four African-American men
approached the vehicle in single-file after Bayless double-parked the vehicle in front of a 114
building;
(3) one man reached in and pushed the trunk button, while two of the men
loaded large duffel bags into the trunk, and the fourth closed the trunk;
115
(4) the men 116
didn’t speak to Bayless while opening the trunk and placing the duffel bags inside;
and
117
(5) the men ran when the officers approached in an unmarked car.
Judge Baer stated that it was a normal practice for black residents to run from the officers because police were perceived as “corrupt, abusive and violent…Had the men 118
not run when the cops began to stare at them, it would have been unusual.”
Miss Bayless admitted in a videotaped confession co nfession that she transported drugs on prior occasions, but her story of the stop in question varied significantly from Officer 119
Carroll’s.
The judge said, “If we credit the defendant’s statement, and I do, one cannot 120
keep from finding Carroll’s story incredible.”
Soon after Judge Baer’s decision to suppress the cocaine and the videotaped 121
confession, the intimidation began.
Republican members of Congress, led by then 122
presidential candidate Bob Dole, threatened the judge with impeachment.
112
A group of
Id. at 234. Id. at 236. 114 Id. at 235-36. 115 Id. at 235. 116 Id. at 235-36. 117 Id. 118 Id. at 242. 119 Id. at 236. 120 Id . at 239-40. 121 McClurg, supra McClurg, supra note 20, at 408. 122 See Don Van Natta, Jr., Publicity Jr., Publicity Stuns Woman in Washington Hts. Drug Case, N.Y. Times, Apr. 11, 1996, at B5. 113
15
123
two hundred and thirty other politically charged lawmakers sought Baer’s resignation,
and Clinton supporters called for the judge’s resignation lest he “Willie Hortonize” the 124
1996 presidential election.
Apparently, the threats were successful. 126
decided the police were being truthful.
125
Judge Baer changed his mind and
The judge vacated the original order, denied the
motion to suppress, and apologized to the police officers for his earlier unflattering 127
comments.
B.
Prosecutors
Prosecutors may hesitate to prosecute police officers for perjury because (1) they 128
need to maintain good working relationships with law enforcement;
(2) prosecutors
suggest that it is the jury’s job to assess the veracity of police testimony, so prosecutors should not interfere;
129
and (3) “it is possible p ossible that some prosecutors may actually approve 130
of police perjury, at least when it leads to”
VI.
Curbing It
A.
Changing Culture
131
a conviction.
123
See Patricia Hurtado, Jurists Hurtado, Jurists Rally to Judge Baer, Newsday (Queens Edition), Mar. 31, 1996, at A4. Van Natta, supra Natta, supra note 122, at B5. 125 See Bayless, See Bayless, 921 F.Supp 211, at 212. 126 See id. at 216. 127 See id. at 217. 128 Chin, et al., supra al., supra note 1, at 263-64. 129 Id. 130 Id. 131 Id. 124
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The acceptance of perjury p erjury by the legal community needs to be “replaced by intolerance of its presence. [C]riminal prosecution p rosecution and disciplinary sanctions of perjurers 132
and suborners of perjury must be elevated from low to top priority.”
Once the legal community’s attitude toward police perjury is changed, only then can 133
methods to help eradicate it be put into action.
B.
Cracking the Blue Wall 134
It is a built in part of police culture to maintain the blue wall of silence.
The
“fundamental belief in lying to protect one’s colleagues b egins early in an officer’s career…For this reason, the Blue Wall’s existence and the repercussions of failing to adhere to it should be explained exp lained to jurors when they are receiving jury instructions instructions in 135
cases of police misconduct.” 136
the witness before them.”
Juries would then be able to “evaluate the credibility of
But this will only act to place a few cracks in the wall, when 137
what is needed is a complete overhaul of o f the police culture.
C.
Changing Culture
“Officers who are proven to have committed perjury should also be liable for their 138
criminal defense costs.”
Presently, a police department “pays for its officer’s legal
132
Lisa Harris, Perjury Harris, Perjury Defeats Justice, 42 Wayne L. Rev. 1755, 1780 (1996). Id. at 1779. 134 Jennifer E. Koepke, The Failure to Breach the Blue Wall of Silence: The Circling of Wagons to Protect Police Perjury, 39 Washburn L.J. 211, 235 (2000). 135 Id. 136 Id. at 236. 137 Id . at 237. 138 Id. 133
17
139
defense,”
140
so an officer has no financial reason to feel remorse.
Next, diversity 141
training, which is mandatory in many departments, should be further expanded.
This training fosters in officers an “understanding of the citizens with whom they 142
interact daily.”
For example, in Miami, Florida, “officers must attend ‘street wisdom’
training, which discusses how officers serving Miami’s multiethnic communities can improve communication and tolerance with citizens by educating themselves about 143
various cultures.”
D.
Minimizing Police “Testilying”
As part of changing the culture of law enforcement, police training should 144
concentrate on teaching “the immorality and dangers of perjury,”
and prosecutors
should be held accountable for not acting upon reported police perjury. In fact, it is the prosecutor’s “ethical duty to promote justice seriously, including providing the defense 145
with information about perjury when it comes to their attention.”
The American Bar Association’s Model Rules of Professional Conduct state that the “prosecutor in a criminal case shall…make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” Model Rules of Professional Conduct Rule 3.8(d) (1983). The ABA’s Criminal Justice Standards on the Prosecution Function provide, inter alia, that “[t]he duty of the 139
Id. Id. 141 Id. at 238. 142 Id. at 238-39. 143 Id. at 239. 144 Christopher Slobogin, Testilying: Police Perjury and What to Do About It , It , 67 U. Colo. L. Rev. 1037, 1049 (1996). 145 Id. at 1048. 140
18
prosecutor is to seek justice, not merely to convict,” Standards for Criminal Justice s 3-1.1 (2d ed. 1979); that the prosecutor “has an affirmative responsibility to investigate suspected illegal activity when it is not adequately dealt with by other agencies,” id. § 3-3.1(a); that the prosecutor must not “knowingly…use illegal means to obtain evidence or to employ or instruct or encourage others to use such means,” id. § 3-3.1(b); and that a prosecutor shall not “intentionally…avoid pursuit of evidence because he or she believes it will damage the prosecution’s 146 case or aid the accused,” id. § 3-3.11(c).
147
Discouraging “testilying” “testilying” can be promoted through policing of the police.
Some suggestions are: (1) if all police actions were videotaped then the opportunity for perjury is obviously much less; from the force;
149
148
(2) stiff punishments for police perjury and dismissal
(3) consider replacing the exclusionary rule “to change the behavior of 150
prosecutors and judges by reducing the urge to wink at such lying.”
A government
ombudsman would be authorized to “receive and investigate complaints against the police and to assign private counsel to sue the individual officer and the government in front of a judge. The officer found in bad-faith violation of the co nstitution would be liable for a certain percentage of his salary, while the government would pay an 151
equivalent sum for good-faith violation.”
This would make sure the police department is h eld “liable for reasonable 152
mistakes of law made by b y its officers.”
Also, this type of damage remedy “provides a
146
Id. at 1060, n. 54. See Jerome Skolnick, Justice Without Trial 212-19 (2d ed. 1975). 148 Slobogin, supra Slobogin, supra note 144, at 1051-52. 149 Id. at 1055. 150 Id. at 1058. 151 Id. 152 Id. 147
19
strong incentive for training programs, and thus, would probably not diminish the 153
institutional compliance that is the one proven effect of the ex clusionary rule.”
VII.
Conclusion
Police officers are to protect and to serve, but when they turn dishonest, it is a gross impediment to the justice system. They are the guardians at the door to the justice system and wield vast power. As such, these individuals should be held to an extremely high standard of professional behavior. When an officer commits perjury, and it is accepted by the criminal justice system, then there is little hope of recovering him or 154
her.
“Testilying “Testilying and other types of Fourth Amendment fraud by police are likely to prove just as resistant to crime control efforts as other offenses.
155
Laws to discourage
police perjury will have limited effect if the culture of lying does not change. Police perjury “erodes the public’s trust” 157
the context of any trial,”
156
of the legal system, and “its corrupt presence p resence within
investigation, traffic stop, or search and seizure casts doubt on
the validity of any evidence derived in these contexts. If the judiciary accepts this, then we are not living in a government by the people and for the people.
153
Id.; see also Yale Kamisar, Does Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a “Principled Basis” Rather Than an “Empirical Proposition”?, 16 Creighton L. Rev. 565, 590-91 (1983) (where it states that an ombudsman system is in a better position to detect alleged police misconduct, which isn’t easily detected detected under the exclusionary rule standard of evidence suppression.). 154 McClurg, supra McClurg, supra note 20, at 451. 155 Kevin R. Reitz, Testilying as a Problem of Crime Control: A Reply to Professor Slobogin, 67 U. Colo. L. Rev. 1061, 1073 (1996). 156 Harris, supra Harris, supra note 132, at 1756. 157 Id. at 1757.
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Now we will revisit our friend Constable Stokes, who has just been convicted of “willful and corrupt perjury.”
The sentence of the Court was, that the prisoner (Constable Stokes) was to be “exposed in the market-place on Thursday next, between the hours of 12 and 2 o’clock, with a placard on his person, stating his offense, after which” 158 he is to be “imprisoned in the gaol for one month, and then to be sent to a penal settlement for 159
seven years.”
“Our Government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example…If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites 160
anarchy.”
158
R. v. Stokes, supra note 9. Id.
159
21
160
Mapp v. Ohio, 367 U.S. at 669.
22
