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Police perjury

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In criminal law, police perjury, sometimes euphemistically called "testilying",[1][2] is the act of a police officer knowingly giving false testimony. It is typically used in a criminal trial to "make the case" against defendants believed by the police to be guilty when irregularities during the suspects' arrest or search threaten to result in their acquittal. It also can be extended to encompass substantive misstatements of fact to convict those whom the police believe to be guilty, procedural misstatements to "justify" a search and seizure, or even the inclusion of statements to frame an innocent citizen.[1][3] More generically, it has been said to be "[l]ying under oath, especially by a police officer, to help get a conviction."[4]

United States

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See also: Blue wall of silence

When police lie under oath, innocent people can be convicted and jailed; hundreds of convictions have been set aside as a result of such police misconduct.[5] Some sources say that it is both a police and a prosecutorial problem and that it is a systemic response to the fruit of the poisonous tree doctrine, which was recognized in the US Supreme Court decision Mapp v. Ohio.[6] Other authors have drawn a connection between perjury and an increased emphasis on the number of arrests and convictions made.[7][8]

The extent of the practice is debated; journalists, activists, and defense attorneys have exposed numerous instances of false testimony,[9] but police officers and police unions, while acknowledging its occurrence, deny that it is widespread or systemic.[10] The defense attorney Alan Dershowitz argued, in the New York Times and before a congressional hearing, that police perjury is commonplace:

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.[11][12]

In 1995, the Boston Globe reported that New York Police Commissioner William J. Bratton had created a furor by saying that he agreed with most of Dershowitz's statement.[13] The Globe quoted Richard Bradley, then-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.[14]

In a 1996 article in the Los Angeles Times, "Has the Drug War Created an Officer Liars' Club?", Joseph D. McNamara, the 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 also noted, "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."[15]

In 2011, after finding a former police detective, Jason Arbeeny, 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."[16] Arbeeny was then sentenced to five years of probation and 300 hours of community service.[17] Also in 2011, a former San Francisco Police Commissioner, Peter Keane, wrote that lying under oath was a "routine practice" for narcotics officers.[7]

In 2019, the Foreign Intelligence Surveillance Court called out the Federal Bureau of Investigation and the National Security Division of the US Department of Justice for dishonesty in applications for continuance of a wiretap of Carter Page, saying that it called into question the reliability of other evidence submitted by the FBI.[18][19] The practice was documented in a previous report released by the Department of Justice's Inspector General, Michael Horowitz, and was cited by the court.[20][21]

Police officers who have been dishonest are sometimes referred to as "Brady cops." In Brady v. Maryland, the US 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 a case has a sustained record of knowingly lying in an official capacity.[22]

Remedies

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A police officer's reputation for trustworthiness is an important asset to their effectiveness; police who have been caught lying to the court make poor witnesses, and previous convictions relying on their testimony can be vacated if their misconduct is pervasive. This can result in termination, and such terminations have been judicially enforced.[23] About a perjured affidavit supporting a raid that killed two, Houston Police Chief Art Acevedo said "that's totally unacceptable. I've told my police department that if you lie, you die. When you lie on an affidavit, that's not sloppy police work, that's a crime."[24]

Some suggest that narrowing or blunting the exclusionary rule may get rid of the incentive for police to lie to the court. That has happened to the extent that the US Supreme Court has recognized exceptions like the "good faith exception." Some argue that civil liability could have a prophylactic effect on police misconduct. Others suggest that the ubiquity of video recordings, both by the police and by civilians, will operate to slow down the misconduct and to reverse the trend.[25]

See also

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References

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  1. ^ a b Slobogin, Christopher (Fall 1996). "Reform The Police: TESTILYING: POLICE PERJURY AND WHAT TO DO ABOUT IT". University of Colorado Law Review. 67. Boulder, Colorado: University of Colorado Law School: 1037. Retrieved December 28, 2012.
  2. ^ Hays, Tom (March 21, 1996). "Law and Disorder: NYPD Tackles 'Testilying'". AP News. Retrieved June 10, 2020.
  3. ^ Editorial Board (July 2, 2015). "Editorial: Police perjury: It's called 'testilying'". Chicago Tribune. Retrieved March 8, 2019.
  4. ^ McFedries, Paul. "testilying". Word Spy. Retrieved December 28, 2012.
  5. ^ Rocieniewski, David (January 5, 1997). "Testilying in New York: "Most of the officers at the 30th Precinct during that time were lying about arrests they were making. That's just the way things were done."". New York Times. Retrieved December 26, 2012.
  6. ^ Malinowski, Nick (February 3, 2013). "Testilying: Cops are liars who get away with perjury". Retrieved April 10, 2014.
  7. ^ a b Keane, Peter (March 15, 2011). "Why cops lie". SFGate. Archived from the original on April 17, 2014. Retrieved March 13, 2015.
  8. ^ Alexander, Michelle (February 2, 2013). "Why Police Lie Under Oath". New York Times. Archived from the original on July 29, 2014. Retrieved March 13, 2015.
  9. ^ Goldstein, Joseph (March 22, 2018). "Police 'Testilying' Remains a Problem. Here Is How the Criminal Justice System Could Reduce It". The New York Times. ISSN 0362-4331. Retrieved April 15, 2021.
  10. ^ Goldstein, Joseph (March 18, 2018). "'Testilying' by Police: A Stubborn Problem". The New York Times. ISSN 0362-4331. Retrieved April 15, 2021.
  11. ^ Dershowitz, Alan (May 2, 1994). "Accomplices to Perjury". The New York Times. p. A1. Retrieved December 28, 2012.
  12. ^ Dershowitz, Alan M. (December 1, 1998). "Testimony on Testilying". United States House of Representatives Judiciary Committee. Retrieved December 28, 2012.
  13. ^ "Bratton calls 'testilying' by police a real concern". Boston Globe. November 15, 1995.
  14. ^ Stamper, Norm (2016). To Protect and Serve: How to Fix America's Police. PublicAffairs. p. 193. ISBN 978-1-56858-541-3. Retrieved May 8, 2021.
  15. ^ McNamara, Joseph D. (February 11, 1996). "Has the Drug War Created an Officer Liars' Club?". Los Angeles Times. Retrieved December 28, 2012.
  16. ^ Stolarik, Robert (November 1, 2011). "Detective Is Found Guilty of Planting Drugs". New York Times. Archived from the original on February 23, 2020. Retrieved March 13, 2015.
  17. ^ Yaniv, Oren (February 3, 2012). "Ex-cop Jason Arbeeny cries for judge, gets probation; Judge Gustin Reichbach could have given him 4 years". New York Daily News. New York. Archived from the original on February 4, 2012. Retrieved February 27, 2016.
  18. ^ Rosemary M. Collyer, Presiding Judge, United States Foreign Intelligence Surveillance Court (December 17, 2019). "In Re Accuracy Concerns Regarding FBI Matters Submitted to the FISC" (PDF).{{cite web}}: CS1 maint: multiple names: authors list (link)
  19. ^ Editorial Board (December 18, 2019). "The FBI must avoid more Carter Page fiascos". The Washington Post. It was particularly egregious that an FBI lawyer altered an email that would have otherwise painted Mr. Page in a less concerning light.
  20. ^ Inspector General Michael Horowitz (December 9, 2019). "Review of Four FISA Applications and Other Aspects of the FBI's Crossfire Hurricane Investigation" (PDF). Department of Justice Office of Inspector General.
  21. ^ Jerry Dunleavy (December 9, 2019). "DOJ inspector general finds 17 'significant errors or omissions' in Carter Page FISA applications". Washington Examiner. These errors and omissions resulted from case agents providing wrong or incomplete information to the National Security Division's Office of Intelligence and failing to flag important issues for discussion.
  22. ^ Kamb, Lewis; Nalder, Eric (January 29, 2008). "Cops who lie don't always lose jobs". Seattle Post-Intelligencer. Retrieved January 2, 2013.
  23. ^ ""You Lie, You Die" – Dishonesty Derails Discrimination Case". February 29, 2016. Retrieved March 8, 2018. It's an expression you hear often among police officers and other sworn employees: 'You Lie, You Die.' That is, if you are caught being deceptive about any work-related subject, you will be terminated and your career will be over. This concept was endorsed in a recent appeals court case that can teach lessons to all employers about the importance of honesty in the workplace.
  24. ^ Agorist, Matt (February 15, 2019). "'You Lie, You Die': Cops Admit to Lying About Raid that Left Innocent Couple Murdered". Archived from the original on February 17, 2019. Retrieved March 8, 2019.{{cite web}}: CS1 maint: unfit URL (link)
  25. ^ Balko, Radley (April 16, 2014). "The Watch: How do we fix the police 'testilying' problem?". Washington Post. Retrieved July 13, 2015.

Sources

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