How do we fix the police ‘testilying’ problem?

Back in 1967, former U.S. attorney and New York criminal judge Irving Younger warned that the criminal justice system was providing cops with heavy incentives to lie in court. (Note: The transcription of the article below contains some punctuation errors.)

On March 20, in McCray v. Illinois, the Supreme [Court] held that when, on being questioned as to whether there was probable cause to arrest a defendant, a policeman testifies ‘that a “reliable informant” told him that the defendant was committing a crime the policeman need not name the informant[.] Justice Stewart, for himself: and four other members of the Court, said that “nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing to assume the arresting officers are committing perjury.”

Why not? Every lawyer who practices in the criminal courts knows that police perjury is commonplace. The reason is not hard to find. Policemen see [themselves] as fighting a two‑front war — against criminals in the street and against “liberal” rules of law in court. All’s fair in this war, including the use of perjury to subvert “liberal” rules of law that might free those who “ought” to be jailed. And even if his lies are exposed in the courtroom, the policeman is as likely to be indicted for perjury by his co‑worker, the prosecutor, as he is to be struck down by thunderbolts from an avenging heaven.

It is a peculiarity of our legal, system that the police have unique opportunities (and unique temptations) to give false testimony. …

The difficulty arises when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them. and perhaps in nearly all of them. Narcotics prosecutions in New York City can be so viewed. Before Mapp [v. Ohio] the policeman typically [testified] that [he] had stopped the defendant for little or no reason, searched him, and found narcotics on [his] person. This had the ring of truth. It was an illegal search (not based upon probable cause”), but the evidence was admissible because Mapp had not yet been decided. Since it made no difference, the policeman testified truthfully. After, the decision in Mapp it made a great deal of difference.

For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed. Then the police made the great discovery that if the defendant drops the narcotics on the ground, after which the police man arrests him, then the search is reasonable and the evidence is admissible. Spend a few hours in the New ‘York City Criminal Court nowadays and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground whereupon the policeman arrested him.

Usually the very language of the testimony is identical from one case to another. This is now known among defense lawyers and prosecutors as “dropsy” testimony. The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman. It follows that at least in some of these cases the police are lying.

That was nearly 50 years ago. We still haven’t figured out how to solve the problem.

One by one, five police officers took the witness stand at the Skokie courthouse late last month for what would typically be a routine hearing on whether evidence in a drug case was properly obtained.

But in a “Perry Mason” moment rarely seen inside an actual courtroom, the inquiry took a surprising turn when the suspect’s lawyer played a police video that contradicted the sworn testimony of the five officers — three from Chicago and two from Glenview, a furious judge found.

Cook County Circuit Judge Catherine Haberkorn suppressed the search and arrest, leading prosecutors to quickly dismiss the felony charges. All five officers were later stripped of their police powers and put on desk duty pending internal investigations. And the state’s attorney’s office is looking into possible criminal violations, according to spokeswoman Sally Daly.

“Obviously, this is very outrageous conduct,” a transcript of the March 31 hearing quoted the judge, a former county prosecutor, as saying. “All officers lied on the stand today. … All their testimony was a lie. So there’s strong evidence it was conspiracy to lie in this case, for everyone to come up with the same lie. … Many, many, many, many times they all lied.”

All five are veteran officers. Glenview Officer Jim Horn declined to comment Monday, while the other four — Sgt. James Padar and Officers Vince Morgan and William Pruente, all assigned to narcotics for Chicago police, and Glenview Sgt. Theresa Urbanowski — could not be reached for comment.

As Michelle Alexander pointed out in a New York Times op-ed last year, a Brooklyn judge recently had the same revelation.

In 2011, hundreds of drug cases were dismissed after several police officers were accused of mishandling evidence. That year, Justice Gustin L. Reichbach of the State Supreme Court in Brooklyn condemned a widespread culture of lying and corruption in the department’s drug enforcement units. “I thought I was not naïve,” he said when announcing a guilty verdict involving a police detective who had planted crack cocaine on a pair of suspects. “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.”

In fact, Younger’s warning has been repeated ad nauseam over the years by other judges, defense attorneys, conscientious police chiefs, numerous academics and law journal articles, and whistleblowers.

There are a number of reasons for the “testilying” problem. As Alexander points out, even since Younger’s time, the federal government only worsened the incentives by instituting a number of grants that reward police agencies for raw numbers of stops, arrests and convictions, particularly in drug cases. There are professional and financial incentives for racking up the stats, for police agencies as a whole, for the brass who lead them and for individual police officers. And there’s very little pushback for going too far to achieve those numbers.

But one unfortunate truth is that police lying has long been encouraged by the Exclusionary Rule, the rule that (usually) prohibits evidence found during an illegal search from being used against a suspect at trial. This is an unfortunate truth because the Exclusionary Rule is also the only real deterrent to illegal searches. Eliminate the Exclusionary Rule, and cops may well stop lying about how they obtain evidence, but there will then be very little to stop them from violating the Fourth Amendment with impunity, based on little more than hunches. Remember, they’re lying to hide the fact that they may have violated someone’s civil rights. Remove the incentive to lie about the violation without removing or at least combating the incentive to commit the violation in the first place, and you’ve only fixed the coverup. You haven’t fixed the underlying crime. And this is one scenario where the crime is actually quite a bit worse than the coverup.

So what do we do? My fellow Washington Post blogger Randy Barnett has suggested trading the Exclusionary Rule for increased liability for cops who commit constitutional violations in the form of financial awards to victims, whether they’re eventually found guilty or innocent. Barnett suggests that the awards be paid by police departments (and ultimately taxpayers), not individual police officers. This seems like a policy that would be politically difficult to enact into law. Given how pressure from police groups has made it difficult to pass basic reform even on a policy such as civil asset forfeiture — a much more obvious injustice to most people — convincing lawmakers to force agencies to pay awards to convicts because the evidence used to convict them was found in an illegal search seems like a tough sell.  It also rests on the assumption that frequent awards for illegal searches will eventually move voters to push for reform. I’m just not convinced that will happen.

The answer may actually lie in how those Chicago cops got caught. The ubiquity of citizen-shot video, along with the onset of mandatory dashboard camera and lapel camera videos, is making it increasingly difficult for cops to get away with lying. Interestingly, Younger hinted at this 47 years ago.

In March 1966, the American Law Institute promulgated a Model Code of Pre‑Arraignment Procedure, which provides that the police must make a tape recording of their questioning of an arrested person in order “to help eliminate factual disputes concerning what was said.” More recently the 20th police precinct in New York City has begun to tape‑record all interviews with suspects.

But there will be no tape recordings on the streets . . .

Perhaps not in 1967. But that is more and more the case today. All of those recordings are catching more and more cops in the act of lying. Every time a recording shows a cop to have lied, a number of things happen. First, that particular cop is (hopefully) disciplined. That probably doesn’t happen as often as it should, but judges and prosecutors tend to treat perjury much more seriously than they do an illegal search. Yes, in an ideal world, cops would be disciplined as harshly for the act of violating someone’s civil liberties as they are for lying about doing so to a judge or jury after the fact. But we have to work with what we have.

Second, it serves as a warning to other cops who are lying or might lie in the future in police reports and courtrooms. The cameras are rolling. Eventually, you’ll be exposed. And third, it begins to undermine the prestige that police testimony holds with judges, prosecutors and political officials. It isn’t that cops are inherently dishonest people. But they are in fact merely people, subject to the same failings, temptations, bad incentives and trappings of power as someone in any other profession. Put another way, the problem isn’t that cops aren’t capable of telling the truth. The problem is that the courts have treated cops as if they’re incapable of lying. Video is changing that.

Of course, for video to change police behavior, the video needs to exist. So the move toward dashboard cameras and lapel cameras is a good thing — provided there are safeguards to protect the privacy of regular citizens inadvertently recorded by those cameras. We also need the courts, or perhaps state legislatures, to adopt or pass a “Missing Video Presumption” — if there should be audio or video of an incident, and there isn’t, the courts should presume that the audio or video would not have supported the claims of the party that failed to preserve the evidence. (That would seem to be the police in most cases, but it could also be a suspect who destroys incriminating video on his surveillance camera or cellphone.)

These policies — with a robust Exclusionary Rule and proper sanctions against cops shown by video to have committed perjury — won’t forever end the illegal searches or the practice of “testilying.” But they should begin to tilt the incentives, so that there’s at least as much to lose by skirting the Fourth Amendment (and then lying about it) as there is to gain.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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