Police "testilying," post-Herring

Citing recent cases of police "testilying" in Boston and New York, Amir Efrati at the Wall Street Journal examined this week whether the exclusionary rule encourages police to lie on the stand, and what to do about it ("Legal system struggles with how to react when police officers lie," Jan. 29):

Questionable testimony by police comes up most often in firearm- or drug-possession cases in which officers often testify that a defendant had a bulge in his pocket -- which they thought might be a gun -- or dropped drugs in plain sight as they approached him, giving the officers the right to seize the contraband. Defense lawyers say in many of these cases, officers are "testilying" and that the guns or drugs were actually discovered when their clients were unjustly frisked by officers. They also say testilying frequently occurs in more serious cases. ...

Criminal-justice researchers say it's difficult to quantify how often perjury is being committed. According to a 1992 survey, prosecutors, defense attorneys and judges in Chicago said they thought that, on average, perjury by police occurs 20% of the time in which defendants claim evidence was illegally seized.

"It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers," though it's difficult to detect in specific cases, said Alex Kozinski, a federal appeals-court judge, in the 1990s. That's because the exclusionary rule "sets up a great incentive for...police to lie."

Naturally, as you might expect, that is not a consensus opinion:

Police officers don't necessarily agree, says Eugene O'Donnell, a former police officer and prosecutor who teaches law and police studies in New York. "Perjury is endemic in the court system, but officers lie less than defendants do because generally they aren't heavily invested in the outcome of the cases," he says.

Somehow, though, I find little comfort in the assertion that "officers lie less than defendants do"! One would also expect them to commit "less" burglaries than defendants, but if police are committing any it's a serious problem. While it's certainly true that police "generally" aren't as heavily invested as defendants, in serious cases some of them are. There's little doubt in my mind that most police officers have too much integrity to lie intentionally on the stand, but it only takes a few bad apples to spoil a barrel.

Plus, when testilying goes unchecked, police see that their peers are able to get away with such behavior and are more likely to engage in it in routine settings. Sometimes police lying involves colllusion by overzealous prosecutors:

In Boston, a federal judge last week ruled that a police officer there falsely testified at a pretrial hearing in a gun-possession case about the circumstances of the defendant's arrest. The judge, Mark Wolf, is considering sanctions against the prosecutor for not immediately disclosing that the officer's testimony contradicted what he told prosecutors beforehand.

Efrati identifies the motive for police testilying as getting around the exclusionary rule, and discusses a fascinating study following the rule's implementation at the state level almost 50 years ago:

Testilying may have taken off after a 1961 Supreme Court decision boosted the exclusionary rule by requiring state courts to exclude -- or throw out -- some evidence seized in illegal searches, such as when police frisk people without probable cause or search a residence without a warrant.

Immediately after the decision, Mapp v. Ohio, studies showed that the number of annual drug arrests in the U.S. -- most cases are prosecuted in state court -- didn't change much but there was a sharp increase in officers claiming that suspects dropped drugs on the ground. "Either drug users were suddenly dropping bags all over the place or the cops were still frisking but saying the guy dropped the drugs," says John Kleinig, a professor at John Jay College of Criminal Justice.

SCOTUS recently began the process of scaling back the exclusionary rule, notes Efrati, allowing illegally gathered evidence to come into court if police say the error was made in good faith:

This month's Supreme Court decision added an exception to the exclusionary rule by holding that the prosecution of an Alabama man for drug- and firearm-possession charges was valid, even though the contraband was found after the man was wrongly arrested and searched. Police officers had mistakenly thought he was subject to an arrest warrant.

Throwing out evidence because of wrongful searches and arrests "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free," wrote Chief Justice John Roberts.

So for the Roberts court, illegal evidence and testilying are concerns to be weighed against "letting guilty and possibly dangerous defendants go free" - in other words, apparently tolerable under some circumstances.

Personally, I disagree with Efrati that limiting the exclusionary rule might reduce "testilying." To me, it looks like Roberts' decision in Herring makes testilying more likely, not less, because officers will now concoct stories to pretend that intentional violations were innocent errors; at least, that's the door Justice Roberts opened for them.

Such rulings leave the system with very few remaining tools to hold police accountable for violating constitutional rights. The exclusionary rule may be a flawed remedy, but in the modern American legal system it's virtually the only means available to counteract police illegally seizing evidence. Activist judges have whittled away civil liability for police and prosecutors to the point where it's either nonexistent or virtually meaningless.

After Texas' most high-profile example of "testilying" in the Tulia drug sting case, legislation was filed to require corroboration for police officer testimony in undercover drug stings. Police unions fought the idea like they were defending the Alamo, and the bill was scaled back to only require corroboration for undercover drug informants - a significant step forward, but hardly a remedy for police testilying.

As SCOTUS seems bent on creating loopholes in the exclusionary rule that encourage police to lie, what possible preventive or punitive measures might help identify or elmiminate testilying? And which branch of government should we be looking to to address the problem?

Via TDCAA.