Police perjury: causes, consequences, and accountability

Criminal Justice: Perjury in Policing

PERJURY in POLICING Introduction:

Dishonesty has always been part of human behavior and it is something that occurs at some point in every conceivable type of relationship. Parents sometimes lie to children and vice-versa, students sometimes lie to teachers, friends sometimes lie to their friends, and spouses sometimes lie to each other. Certain lies are intended to mislead for the purpose of benefiting the liar at the expense of someone else; other lies are motivated by the desire to accomplish something positive, such as shielding someone from painful truths or embarrassment.

In law enforcement, deception often plays a role in investigating crimes, questioning persons of interest, interrogating suspects, concealing facts from public disclosure to preserve the integrity of ongoing investigations, and maintaining tactical advantage in covert operations and in negotiations for surrender. Not uncommonly, police officers are encouraged to misrepresent the truth in performance of their duties, such as extending a "professional courtesy" to other law enforcement officers in routine traffic stops and for using their "discretion" in other ways that are also prohibited technically. One of the most common examples occurs every time a highway patrol officer decides to give a cooperative citizen a "break" by writing a summons for a speed that is less than the actual speed of the violation (Raymond, 1998).

In policing, the line between routine lies that are tacitly accepted and encouraged and lies that threaten constitutional rights can become blurry, especially when motivated by the genuine desire of the police to protect society from those who are obviously guilty of heinous crimes. The motive is understandable -- especially from the point-of-view of someone dedicated to fighting crime -- when the consequences of sticking to the letter of the law will undermine the prosecution and punishment of known dangerous criminals.

Likewise, when certain types of dishonesty are tolerated, the tendency to rationalize or justify other types of dishonesty naturally increases.

Criminal Procedure and Constitutional Rights: ae

The United States Constitution, subject to interpretation by the Supreme Court, defines the rights of the individual and also limits the authority of government agents to conduct criminal investigations without crossing procedural boundaries designed to protect recognized constitutional rights. In general, the Framers of the Constitution emphasized concepts like a presumption of innocence to err on the side of individual freedoms, even at the inevitable expense of making some prosecutions more difficult.

Ensuring the success of criminal prosecutions would have required erring on the side of presuming guilt over innocence which would have resulted, equally inevitably, in convicting a certain proportion of innocent defendants.

The laws of criminal procedure that have evolved since the adoption of the Constitution continue to reflect the competing goals of prosecuting the guilty while respecting the constitutional rights of criminal suspects simultaneously. Sometimes changes in criminal procedure designed to protect one element of civil rights generates unintended consequences that threaten others. In may respects, this is exactly what happened after a series of Supreme Court decisions intended to deter constitutionally improper investigations and evidence collection techniques inspired a surge of outright perjury among police officers (Cloud, 1994).

In 1914, the Supreme Court established the "Exclusionary Rule" in Weeks v. United States, pursuant to which evidence collected by federal agents in violation of Fourth Amendment search and seizure limitations could no longer be used to prosecute criminal conduct. However, until 1961, evidence exclusion under Weeks applied only to federal law enforcement agents and not to state and local policing. The Supreme Court extended the concept of excluding improperly obtained evidence to the states in the landmark decision, Mapp v. Ohio (Hendrie, 1997). In Mapp, police had located incriminating evidence by conducting an improper warrantless search, in addition to using a deception designed to create the illusion of having a valid search warrant at the time of the intrusion.

Since the Mapp decision, police conduct has changed significantly in several ways. In addition to increasing the procuring of proper warrants, Mapp was also followed by a marked increase in instances of false police testimony, particularly in the case of street drug related crimes (Cloud, 1994). Among police officers, lying became seen as a tactical necessity to get around the exclusionary rule. Several large-scale investigations into police conduct in this area were initiated, such as the 1994 Mollen Commission study of the New York City Police Department. Among its findings was that many urban police officers had adopted a routine practice of lying on the witness stand in connection with searching suspects on the street (Foley, 200). Time and again, police officers took the stand to parrot the identical story of recovering contraband that suspects had "dropped" in the officer's presence. In most cases, the reality was that the officers had used nothing more than their instincts and experience on the street to identify subjects they considered likely to be in possession of illegal drugs, detaining them for a search. When illegal drugs or weapons were found, the officers simply falsified their reports - and later, their court testimony - to support their claim of having merely retrieved evidence after the suspect dropped it

As a result of the Mollen findings, then police commissioner, William Bratton established an intensive training program to correct the problem by teaching police officers the lines of acceptable conduct pertaining to testifying honestly, particularly in matters related to, search and seizure issues, and permissible evidence procurement standards and procedures (Foley, 200). Since 1961, a series of Supreme Court decisions has narrowed the applicability of the exclusionary rule by establishing specific criteria justifying exceptions to the general rule of excluding all evidence collected improperly. In many respects, these limitations lessened the incentive - or the perceived necessity - to falsify police reports or testify dishonestly at trial more than any training instituted specifically for that purpose.

The main purpose of the exclusionary rule was not to compensate wronged suspects, but to deter improper police conduct (Hendrie, 1997). One problem with the principle of excluding improperly obtained evidence is that its suppression at trial often resulted in the inability to prosecute certain criminals whose guilt (as well as the danger they presented to society) was obvious, despite the fact that the evidence necessary to convict them was excluded from trial. Police officers compensated by adapting their testimony to conceal their improper conduct in securing the evidence crucial to conviction.

In 1984, the Supreme Court ruled that evidence obtained impermissibly police conduct that violated constitutional rights would be exempt from the impact of the exclusionary rule, provided the same evidence would certainly have been discovered by permissible means. In Nix v. Williams, the Supreme Court laid out the Inevitable Discovery exception, ruling against excluding evidence obtained by deceptive police conduct that was purposely designed to elicit an incriminating statement or confession to a murder. In that case, a police officer had not questioned the suspect in violation of his Miranda right to remain silent after his arrest, but the officer prompted a so-called "voluntary" confession by appealing to the suspect's religious beliefs and conscience, telling the suspect to "think about" the fact that the victim's family deserved the opportunity to bury their daughter properly. The suspect subsequently volunteered the information leading to the victim's whereabouts, thereby incriminating himself. The Court agreed that the officer's conduct violated the Fifth Amendment and that the confession could not be used to convict Williams. However, since the prosecution established that the victim's body - which contained sufficient evidence to convict Williams - would have inevitably been found shortly thereafter, that evidence could be used to convict Williams at trial (Hendrie, 1997).