Police perjury

Police perjury (or testilying in United States police slang) 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 who the police believe to be guilty when irregularities during the suspect's arrest or search threaten to result in acquittal. It has broader meanings. 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, or even to include statements to frame an innocent citizen. More generically, it has been said to be: "Lying under oath, especially by a police officer, to help get a conviction."

Police perjury in the United States

Etymology

Testilying is a portmanteau of testify and lying. Defendants who embellish their own testimony, particularly when no evidence contradicts them, can also be said to be testilying. It is said to be a type of "police corruption."

Published usage

The word testilying and its meaning have been publicized by defense attorney Alan Dershowitz, notably 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.

There seems to be little doubt that the practice occurs, is not limited to any region of the country, and that "testilying" is a common name for it. A 2003 Boston Globe editorial noted:

In the early 1990s, the Mollen Commission peeled away layers of falsehood in the New York City Police Department, including false statements on warrant applications, creation of confidential informants out of whole cloth, and lies told to establish probable cause for stopping and searching vehicles. So-called "testilying," however, is not limited to any one area or police department. The problem has become so acute that juries nationwide routinely express skepticism about law enforcement testimony, such as drugs found "in plain view".

The LAPD is said to call the practice "joining the liars' club." 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."

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.

Prevalence

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. 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 what Dershowitz had to say. 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 2011, former San Francisco Police Commissioner Peter Keane wrote that lying under oath was a "routine practice" for narcotics officers.

Despite the alleged beneficent public purpose behind police telling lies—thus the use of the sobriquet "testilying" to make 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 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.

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. Other authors have drawn a connection between perjury and an increased emphasis on the number of arrests and convictions made.

In 2011, after finding a police officer 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."

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 court in the United States have recognized "good faith" exceptions. 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.

See also

• Brady material
• Brady v. Maryland
• Jencks Act
• Mark Fuhrman
• Perjury
• Pitchess motion
• List of wrongful convictions in the United States

Further reading

• Boston Globe November 15, 1995, Metro section, p. 1: "Bratton calls 'testilying' by police a real concern"