”Testilying,” police fabricating evidence or lying in court, is a type of police corruption. It involves the interactions between the police and criminal offenders. A police officer, while generally honest, can also think that it is legitimate to commit illegal searches or to commit perjury because he or she is fighting an evil. For example, the officer reaches inside a suspect’s pocket for drugs and later testifies that the suspect ”dropped” the package. This type of testilying is called ”dropsy testimony” and covers up an illegal search. The practice of testilying has different names in different cities. While in New York, it is called ”testifying,” in Los Angeles it is called ”joining the Liars Club.” Other cities call the practice ”white perjury.”
Nature of Testifying
Testilying can occur at any stage of the criminal process. It is more likely to take place during the investigative and pretrial stages, with much of it as an attempt to cover up illicit evidence gathering. Police fabricate their reports, knowing that these reports may be dispositive in a case resolved through plea bargaining. This form of perjury is called ”reportilying.” For example, it was found that narcotics officers in New York City falsified arrest papers to make it appear as if an arrest had occurred out on the street rather than inside a building, which would have made the arrest illegal.
Testilying can also occur during the warrant application process, which takes place under oath. A frequent form of tes-tilying is the invention of a ”confidential informant” to obtain a warrant. By using this strategy, the officer essentially covers up any irregularities in developing probable cause. In the 1990s, the Mollen Commission found that information from a nonexistent ”unidentified civilian informant” was used to cover up unlawful entrances in New York’s 30th Precinct.
Testilying can occur at the suppression hearing, and the most frequent type is post hoc (after the fact) fabrication for probable cause. In this type of testilying, a multitude of tales can be manufactured. Traffic violations that led to contraband in plain view are a common story. A bulge in the person’s pocket or money changing hands is used to conceal unlawful searches of an individual.
Police Response
Alan Dershowitz has suggested that policemen are indirectly taught to commit perjury when they are in the academy. Their training implicitly supports attitudes that perjury is not serious. This training, in combination with both a police officer’s job expectations and peer pressure, contributes to testilying. Officers that have testi-lied have frequently cited a desire to see the guilty brought to justice. The officer does not want a person that they know to be a criminal to escape because of a technical violation. And indirectly related, their desire is to produce results by securing convictions. Job productivity, for which an officer is rewarded, is obtaining results through arrests. A ”code of silence” among police further supports testilying. Knowledge that other officers commit perjury condones the practice. Because other officers commit perjury to obtain an end, testilying is acceptable.
Police officers may also disagree with laws that curtail their discretion, such as the exclusionary rule. Judges have publicly stated that the exclusionary rule influences police to lie in order to prevent someone they think is guilty from going free. As a consequence, a police officer may not perceive that, when stretching an incident to fit it into the legal requirements, this is committing perjury. To circumvent the exclusionary rule, the officer may fabricate details about the arrest, the search, or the evidence. This type of testilying became apparent after the imposition of the exclusionary rule. In particular, ”dropsy testimony,” in which the officers testified that the offender dropped the drugs before being arrested, increased in drug-related cases.
It has also been suggested that the police think that they can get away with testilying because police supervisors implicitly accept the practice. For example, the Mollen Commission found that in New York’s 30th Precinct, there was either an absence of supervision or supervisors who turned a ”blind eye” to testilying. Higher rank officers in New York advocated that those officers who testilied should not be prosecuted because testily-ing was a police tradition
Further complicity by prosecutors and judges not only supports testilying, it legitimizes it as well. Prosecutors use a technique of steering police testimony by informing the officer as to what courtroom scenarios lead to winning and what courtroom scenarios lead to losing. If the prosecutor is determined to win, trial preparation can be geared to leading the police witness. By doing so, impressionable officers learn to tailor their testimony to the prosecutor’s expectations. Judges have acknowledged that testilying occurs; however, they also acknowledge that it would not happen without their complicity. A judge’s rationalization to tolerate perjury stems from sympathy for the officer’s ultimate goal.
Prevalence
Research supports that courtroom workgroups are aware of testilying. In one survey that included prosecutors, defense attorneys, and judges, the courtroom workgroup perceived that perjury occurs 20% of the time in court. The workgroup believed that it occurred more frequently at suppression hearings, between 20% and 50% of the cases. Only 8% of these professional workgroups believed that police do not lie in court.
In another study of the Chicago court system, extensive evidence of prosecutorial and judicial acceptance toward police perjury was found. The research found that nearly 50% of each group believed that prosecutors had knowledge of perjury at least half the time. An even greater percentage of the groups believed that prosecutors tolerate perjury.
Key Events
Two famous cases involving police perjury occurred in the 1990s. One of the most damaging cases of policy perjury and testilying was in the New York Police Department’s 30th Precinct during 1994. William J. Bratton, then police commissioner, retired the officers’ badges; however, the scandal reverberated throughout the city. The Mollen Commission was formed to investigate the extent of police corruption. One hundred and twenty-five convictions against ninety-eight defendants were thrown out because the convictions were based on untruthful testimony by officers from the Harlem stationhouse. About seventy of these defendants admitted that they were committing crimes when they were arrested. The officers who were involved in the scandal gave different explanations for testilying. Some officers reported that they wanted to counterbalance loopholes used by dealers to evade conviction, and other officers lied to protect their own drug business. The chain of command accepted the testilying by their officers. Prior to the prosecution of the officers, some ranking police commanders argued that the officers who had ”testilied” should not be prosecuted. They indicated that police tradition allowed officers to occasionally ”shade” their testimony by changing details of an arrest to meet search and seizure standards.
In another well-known case, the O.J. Simpson trial for the murders of Nicole Brown Simpson and Ronald Goldman, police perjury affected the outcome for the prosecution. Detective Marc Fuhrman was exposed as a liar by the defense when he asserted that he had not used the word ”nigger.” In addition, Judge Ito found that Detective Vannatter demonstrated a ”reckless disregard for the truth” in the warrant application for the search of Simpson’s house. The prosecution’s response to the perjury was that these lies were well-intentioned efforts, though improper, to convict a guilty person. They proposed that Furhman’s denial at trial was meant to avoid a topic that would distract the jury, and that Vannatter’s lies were designed to cover up irregularities in the evidence-gathering process that could have led to exclusion of incriminating information. The defense differed and obtained an acquittal.
Effects and Public Opinion
The corrosive effects of ”testilying” are widespread. Testilying damages the credibility of police testimony in a trial. After the Simpson case, prosecutors indicated that their cases then had to begin with bringing the jury around to the opinion that cops are not lying. The perjury can extend to law enforcement’s effectiveness in the streets, as the public feel a lack of trust. This distrust can further extend into the criminal justice system. Because other actors, such as prosecutors and judges, are perceived to be condoning police perjury, the system is viewed as corrupt. Essentially by acting in complicity with the police officers, the effectiveness of the entire criminal justice system is called into question.
In addition, convictions can be overturned, and departments, then, bear the liability for unwarranted prison sentences. Monetary considerations can have significant effect on a municipality. Several of the drug dealers and perjury victims from the 30th Precinct scandal sued New York City for unlawful imprisonment. They won six-figure settlements—the eventual financial toll for the city could be up to $10,000,000.
Unresolved Issues
Remedies for testilying focus on law enforcement and the law. Training has been a major focus as a remedy. In New York City, police cadets receive extensive training about perjury and about appearing credible without resorting to embellishment. Commanders and assistant district attorneys receive training on how to identify questionable police testimony.
Other suggested remedies include requiring police to produce their informant in front of the magistrate rather than rely on an unidentified confidential informant. In addition it has been suggested that police, when conducting a house search, be accompanied by lay citizens who observe the search. This is a practice that is used, with success, in other countries. Videotaping police activities, though time consuming and expensive, has also been recommended. All of these efforts focus on corroborating testimony, and it has been suggested that when an officer uses such measures, the officer should be commended and promoted for such behaviors.
Legal scholars have suggested that ”probable cause” should be approached as a ”commonsense” concept. At the same time, this gives the officer greater discretion. However, if there is a more stringent warrant requirement, the officer’s discretion is curtailed. A more controversial suggestion has been to abolish the exclusionary rule, which would mean that officers would no longer make adjustments to their testimony. Then, if an officer were committing perjury, prosecutors and judges would be more willing to expose and prosecute such perjury.
