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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 21st 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, “knocked him down, and committed a felony upon him, that he (Stokes) fired at”2 [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, 59 U. Pitt. L. Rev. (1998). 2 Supreme Court of New South Wales, R. v. Stokes, Australian, Aug. 22, 1834. 3 Id. 4 Id.
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.
Id. Id. 7 Id. 8 R. v. Stokes, Australian, May 20, 1834; See also, Sydney Herald, May 22, 1834; Sydney Gazette, May 20 1834. For 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.
There seems to be an unwritten code in police departments that “prohibits disclosing perjury or other misconduct by fellow officers.”10 This code is known as the “blue wall of silence.”11 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 silence.”12
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 material to the issue or point of inquiry and known to such witness to be false.”13 “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
Chin, supra note 1, at 237. Id. 12 Id. 13 Black’s Law Dictionary 1139 (6th ed. 1990).
suffers if their behavior violates the rule of law.”14 They are state licensed agents who may “use force—deadly force if necessary—to implement the law’s constraints upon our behavior.”15 This is why it is so important that these agents be held to such a high standard of honesty and integrity.16 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 judges.18
Police perjury exists because it is allowed to exist.19 It is accepted because “the end justifies the means.”20 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 lying is committed by decent cops who “want to do something to help society.”23 It is the
14 Morgan Cloud, Judges, ‘Testilying,” and the Constitution, 69 S. Cal. L. Rev. 1341, 1354 (1996); see 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, ‘Testilying,’ and the 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 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.
code of silence that can affect the judgment of honest cops.24 There is a fear of “direct, physical danger to officers who breach the code of silence.”25 Breaching the code can lead to retaliation,26 improper reprimands by upper ranks of the department,27 “inappropriate negative performance evaluations, or retaliatory assignment changes.”28 Both corrupt and initially honest officers can fall into this vicious circle,29 where the temptation to “lie on the witness stand”30 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 code of silence.”31
Perjury: Motive and Opportunity Undercover Agents
The very nature of being an agent working under cover involves some form of deceit.32 “Typically, an undercover agent gives or presents a fake identity and a fabricated history, denies any involvement with the police, and engages in any number of other lies.”33 The agent then moves in undercover to obtain evidence through deceit. Such
See United States v. Abel, 469 U.S. 45, 54 (1984). Chin, supra note 1, at 260. 26 Id. at 261. 27 Id. 28 Id. 29 See id. 30 Chin, supra note 1, at 261. 31 Id. 32 Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies by the Police, 76 Or. L. Rev 775, 778 (1997). 33 Id.
actions are justified in order to “gather general information about criminal activity and the key figures”34 that would otherwise be inaccessible.35 Courts have been supportive of this sort of deception and rarely overturn a conviction based on investigative entrapment.36
Fourth Amendment Search and Seizures
Police often manipulate search and seizure policies in order to catch criminals. Two varieties of lies are used to effectuate a search and seizure.37 First, the police officer may create a pretextual situation.38 Permission might be sought to enter a house “for some innocuous purpose (such as investigation of a nonexistent burglary), when their actual intent is to conduct a search”39 of the interior of the house once inside.40 Pretextual traffic stops can also be used to engage in searches of automobiles “to get a better look at a car’s occupants and contents.”41 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
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, Peter K. Manning, Lying, Secrecy, and Social Control in Police Deviance 106 (Thomas Barker & David L. Carter eds., 1986). 39 Slobogin, supra note 32, at 782. 40 Id. 41 Id.; see generally Wayne R. LaFave, The Present and future Fourth Amendment, 1995 U. Ill. L. Rev. 111, 117-19 ( 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 of a tire onto the fog line at the right edge of the highway or a breaking of the 65 m.p.h. speed limit by but a few miles, well short of the customary tolerance.”).
the law requires they have one;42 (b) “assert they have a warrant when they do not,”43 or; (c) claim “they can get a warrant when in fact they know they can not.”44 So in either variety, police can utilize their “technical legal authority,”45 or outright lie, in order to enter areas otherwise off limits without complying with the Fourth Amendment.46
The Interrogation Manual
“Fabrication in the interrogation context is openly acknowledged by the police today.”47 In fact, the leading interrogation manual, Criminal Interrogation and Confessions by Fred E. Inban, Reid, and Buckley48 touts the merits of deceptive police practice, despite looming Miranda requirements.49 The book’s techniques include, (1) showing false sympathy for the suspect by becoming his or her ‘friend’…;50 (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 harming his nagging wife when the doorbell rang);”51 (3) prodding the suspect into negotiation by exaggerating the crime;52 (4) “lying that suggests the futility of denying
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 one of our Nation’s most cherished principles—that the individual may not be compelled to incriminate himself.”). 50 Inbau, et al., supra note 48, at 100. 51 Slobogin, supra note 32, at 785-86. 52 Inbau, et al., supra note 48, at 122-3.
the truth (eg; statements that sufficient evidence already exists to convict when it does not);53 and (5) “playing one codefendant against another.”54
Overcharging and Crime Invention
It has become an accepted practice by police to overcharge suspects.55 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 cover charges when a suspect is injured during apprehension or while in custody.”57 The officer might claim that the injuries stemmed from “the defendant’s assault on the officer or on the defendant’s having resisted apprehension.”58
Police reports present ample opportunity for police deception and perjury.59 These reports are considered sworn statements, and their main function “is to recite those basic facts obtained or observed which constitute probable cause to support arrest.”60 Individual officers must testify to the facts recited in the report at the probable cause hearing, and if necessary, at the trial.61
Id. at 131. 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 the Lie: Litigating Police Credibility, 26 Am. J. Crim. L 455, 476 (1999). 58 Id. 59 See Fisher, supra note 35, at 17-18, 26-31. 60 Dorfman, supra note 37, at 492. 61 Id.
Such reports create an opportunity for defense attorneys to impeach the officer about certain facts he or she has forgotten on the actual report.62 “Hearings and trials may take place many months after the events they concern,”63 and an officer may not remember every detail. Accordingly, the police reports are drafted with a “minimal recitation of the facts, so skeletal that the report permits the police officer to testify untruthfully, but not inconsistently with the report’s bare-bones account of the case.”64 “Minimalist”65 policies, if widely accepted by the judiciary, “can convince the judge that such factual detail [in a police report], however material, would not naturally be mentioned, and therefore has little impeachment value against”66 the police witness.67 The testifying officer can easily account for any omission in the report on the spot, and the judge would make no negative inferences concerning the omissions.68 Minimalist policies include the use of boilerplate warrants.69 A large percentage of these warrants “are based on highly”70 similar probable cause affidavits.71 For example, a 1988 study based on a sample of randomly selected informant 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.
Fisher, supra note 35, at 32. Dorfman, supra note 37, at 492. 64 Id. at 493. 65 Id. 66 Id. 67 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, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75, 102-3 ( 1992). 70 Id. at 103. 71 Id.
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 time he used it.72
F. The Credibility Contest
Testifying police officers are at a distinct advantage over their civilian counterparts. First of all, the police witness is “almost always testifying as a professional, that is, someone deemed to be a trained observer, a trained investigator, trained in the law, trained in enforcement techniques, even trained in testifying.”73 The officer becomes a “de facto”74 expert regarding “testimony of a technical and specialized nature,”75 making it difficult for the defense to challenge the officers qualifications.76 Secondly, having the status of de facto expert and credibility on his or
Id. at 103-4. Dorfman, supra note 37, at 499. 74 Id. at 500. 75 Id. at 501. 76 See McCormick, supra note 68, at § 13.
her side, the police officer is virtually free to “inject characterizations and opinion into personal observation testimony under the Federal Rules of Evidence.”77
The Primary Source of Police Perjury: Dropsy
During the “revolution in criminal procedure accomplished by the Warren Court,”78 illegally seized evidence was beginning to be suppressed by courts. Before Mapp v. Ohio, 367 U.S. 643 (1961)79, a law enforcement officer could testify “that he stopped the defendant for little or no reason, searched him, and found narcotics on this person…The search was illegal…but the evidence was admissible.”80 The officer could testify truthfully about the circumstances of the stop since the evidence would not be suppressed.81 Then Mapp was decided.82 In that case, a woman was convicted of knowingly having lewd and lascivious books, pictures, and photographs in her possession in violation of § 2905.34 of Ohio’s Revised Code.83 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 search of defendant’s home…”84 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
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 note 78, at 1317. 81 Id. 82 367 U.S. 643 (1961). 83 Id.
with a recent bombing, and that there was a large amount of …paraphernalia being hidden in the home.”85 The police knocked on the door and demanded entrance, but Miss Mapp refused to admit them without a search warrant, after phoning her attorney.86 Additional officers arrived at the scene and the house was forcibly entered.87 Miss Mapp’s attorney soon arrived but was prohibited by police from meeting with his client.88 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 police.89 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 unreasonable search and seizure.”90 The United States Supreme Court held that the exclusionary rule is part of the Fourth and Fourteenth Amendments.91 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 seized without that evidence being suppressed.93
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 note 78, at 1317.
That is when police developed “dropsy” testimony.94 If the officer on the stand testified that the defendant dropped the contraband on the ground, then any search of the suspect would more likely be reasonable and the evidence admissible.95 Police testimony regarding “dropsy” has become so common, that it appears that the same script is being passed around from department to department.96 A former New York Assistant District Attorney described his experiences with “dropsy” testimony: “In dropsy cases, officers justify a search by the oldest of means: they lie about the facts.”97 The officer says, “As I was coming around the corner I saw the defendant drop the drugs on the sidewalk, so I arrested him.”98 The assistant D.A. related that, “one renowned federal judge…complained that he had read the same testimony in too many cases for it to be believed any longer as a matter of law.”99
Why is Perjury Accepted? Judges
“Judges know about police lying.”100 In fact, “it is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers.”101 But why do judges tolerate it? First of all, it can be hard to determine whether a witness is lying, “particularly if we start with the reasonable
Id. Irving Younger, The Perjury Routine, The Nation 596-97 (1967). 96 Id. 97 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 note 20, at 404.
assumption that witnesses who are police officers usually tell the truth.”102 Successful lies remain undetected, “and we would expect a perjurer to attempt to conceal the crime.”103 Second, police perjury can lead to the suppression of highly probative evidence, and many judges (especially elected judges) are reluctant to throw out evidence that may result in a guilty defendant being set free.104 Third, “some judges…believe that most defendants are guilty of something,”105 so a little police perjury would not be highly detrimental to the criminal justice system. Fourth, judges do not want to accuse other government officials of lying.106 Fifth, and most disturbing of all, judges can be victims of retaliation just as honest police officers can be.107 There have been several crusades to destroy judges perceived to be soft on crime. An example of this form of intimidation took place in 1996.108 Judge Harold Baer, Jr., suppressed eighty pounds of cocaine seized by two New York police officers from Carol Bayless’ car, along with a later videotaped confession.109 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 police.111 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
Stuart Taylor, Jr., For the record, Am. Law., Oct. 1995, at 72 (quoting Judge Kozinski). 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 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.
reject the testimony proffered by Officer Carroll.”112 Officer Carroll said Bayless’ car was stopped because: (1) the vehicle had an out-of-state license plate;113 (2) four African-American men approached the vehicle in single-file after Bayless double-parked the vehicle in front of a building;114 (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 didn’t speak to Bayless while opening the trunk and placing the duffel bags inside;116 and (5) the men ran when the officers approached in an unmarked car.117 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 not run when the cops began to stare at them, it would have been unusual.”118 Miss Bayless admitted in a videotaped confession that she transported drugs on prior occasions, but her story of the stop in question varied significantly from Officer Carroll’s.119 The judge said, “If we credit the defendant’s statement, and I do, one cannot keep from finding Carroll’s story incredible.”120 Soon after Judge Baer’s decision to suppress the cocaine and the videotaped confession, the intimidation began.121 Republican members of Congress, led by then presidential candidate Bob Dole, threatened the judge with impeachment.122 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 note 20, at 408. 122 See Don Van Natta, Jr., Publicity Stuns Woman in Washington Hts. Drug Case, N.Y. Times, Apr. 11, 1996, at B5.
two hundred and thirty other politically charged lawmakers sought Baer’s resignation,123 and Clinton supporters called for the judge’s resignation lest he “Willie Hortonize” the 1996 presidential election.124 Apparently, the threats were successful.125 Judge Baer changed his mind and decided the police were being truthful.126 The judge vacated the original order, denied the motion to suppress, and apologized to the police officers for his earlier unflattering comments.127
Prosecutors may hesitate to prosecute police officers for perjury because (1) they need to maintain good working relationships with law enforcement;128 (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 that some prosecutors may actually approve of police perjury, at least when it leads to”130 a conviction.131
Curbing It Changing Culture
See Patricia Hurtado, Jurists Rally to Judge Baer, Newsday (Queens Edition), Mar. 31, 1996, at A4. Van Natta, supra note 122, at B5. 125 See Bayless, 921 F.Supp 211, at 212. 126 See id. at 216. 127 See id. at 217. 128 Chin, et al., supra note 1, at 263-64. 129 Id. 130 Id. 131 Id.
The acceptance of perjury by the legal community needs to be “replaced by intolerance of its presence. [C]riminal prosecution and disciplinary sanctions of perjurers and suborners of perjury must be elevated from low to top priority.”132 Once the legal community’s attitude toward police perjury is changed, only then can methods to help eradicate it be put into action.133
Cracking the Blue Wall It is a built in part of police culture to maintain the blue wall of silence.134 The
“fundamental belief in lying to protect one’s colleagues begins 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 to jurors when they are receiving jury instructions in cases of police misconduct.”135 Juries would then be able to “evaluate the credibility of the witness before them.”136 But this will only act to place a few cracks in the wall, when what is needed is a complete overhaul of the police culture.137
“Officers who are proven to have committed perjury should also be liable for their criminal defense costs.”138 Presently, a police department “pays for its officer’s legal
Lisa 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.
defense,”139 so an officer has no financial reason to feel remorse.140 Next, diversity training, which is mandatory in many departments, should be further expanded.141 This training fosters in officers an “understanding of the citizens with whom they interact daily.”142 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 various cultures.”143
Minimizing Police “Testilying”
As part of changing the culture of law enforcement, police training should concentrate on teaching “the immorality and dangers of perjury,”144 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 with information about perjury when it comes to their attention.”145
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
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, 67 U. Colo. L. Rev. 1037, 1049 (1996). 145 Id. at 1048.
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 case or aid the accused,” id. § 3-3.11(c).146
Discouraging “testilying” can be promoted through policing of the police.147 Some suggestions are: (1) if all police actions were videotaped then the opportunity for perjury is obviously much less;148 (2) stiff punishments for police perjury and dismissal from the force;149 (3) consider replacing the exclusionary rule “to change the behavior of prosecutors and judges by reducing the urge to wink at such lying.”150 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 constitution would be liable for a certain percentage of his salary, while the government would pay an equivalent sum for good-faith violation.”151 This would make sure the police department is held “liable for reasonable mistakes of law made by its officers.”152 Also, this type of damage remedy “provides a
Id. at 1060, n. 54. See Jerome Skolnick, Justice Without Trial 212-19 (2d ed. 1975). 148 Slobogin, supra note 144, at 1051-52. 149 Id. at 1055. 150 Id. at 1058. 151 Id. 152 Id.
strong incentive for training programs, and thus, would probably not diminish the institutional compliance that is the one proven effect of the exclusionary rule.”153
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 her.154 “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”156 of the legal system, and “its corrupt presence within the context of any trial,”157 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.
Id.; see also Yale 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 under the exclusionary rule standard of evidence suppression.). 154 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 note 132, at 1756. 157 Id. at 1757.
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 seven years.”159
“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 anarchy.”160
R. v. Stokes, supra note 9. Id.
Mapp v. Ohio, 367 U.S. at 669.
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