Everyday Incidents


Not all cops lie. But if perjury is committed at the criminal courthouse, it’s likely committed by someone with a badge and a gun — that is, a law enforcement officer. There’s even a term of art for it among the law enforcement community: “testilying”.

I see three reasons for this.

First, statistically, cops testify a lot more than anyone else. Five times as much? Twenty times? So they get more opportunities to perjure themselves.

Second cops often feel that the end justifies the means. A little lie to the court or the jury is worthwhile if it serves to put some punk in prison where he belongs. (After all, the system is broken, right?)

Third, as PJ points out in his comment here, cops “know who gets prosecuted for criminal acts and who does not”. That is, cops don’t get prosecuted for perjury because their perjury is in the interest of those who have the power to prosecute.

Not all cops who lie are willing to perjure themselves. Many times cops on the witness stand tell different stories (the truth) than what they had put in their offense reports (lies). Unfortunately, though, most cases never make it to trial (often the lies are too small to be relied upon to affect the outcome), so prosecutors — despite having seen this happen more than I have — rely on offense reports as the literal truth in deciding how to resolve cases. (The lesson to defense lawyers is, of course, not to make that mistake, to listen to your client, and to remember that good things happen when you try cases. Nobody ever got acquitted by pleading guilty.)

Also unfortunately, cops don’t correct or report each other’s misdeeds. (Don’t take my word for it; see Joel Rosenberg’s Thought Experiment [h/t Simple Justice].) So when a cop tells a little white lie, the only way he’s going to get caught is if he gets on the stand and tells the truth, and the DA’s office is, I daresay, never going to prosecute an officer in such straits.

I’m thinking about offering a cash prize for any Houston or Harris County law enforcement officer who has been on the job for more than a year, and can pass a polygraph (administered by ex-DEA agent John Swartz) while saying that he has never failed to report the misconduct of another officer.

What do you guys think? Have I got it wrong? Will my money be at risk?

Uncle Ken?

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0 responses to “Everyday Incidents”

  1. Mark’s feeling feisty this morning. I’m surprised the pro law enforcement crowd isn’t here yet.

    I just don’t understand why so many of the general public give the police a credibility “pass.”

  2. Ron,

    Criminal law is all about playing the odds. Everything else is the sweetener that makes the system taste palatable. But when you bottom line it all, it’s always about playing the odds.

  3. Your money’s safe, alas.

    That said, not knowing anything about any of the departments, I’m not at all sure which ones, if any, are among those where the culture is honor and professionalism, rather than coverup. (And there definitely are some of the former.)

    Ray of hope: a friend of mine took a carry class out in Arizona; the teacher was a local LEO. When they got to a discussion about dealing with traffic stops, some cynicism was expressed about how often the cop/teacher actually had to deal with tickets, rather than tinning his way out of it. He explained — and I’ve heard this about some other departments, other places — that in his agency, an attempt to tin one’s way out of a speeding ticket is a fireable offense and they’re not kidding — and, besides, when he’s not on duty he doesn’t carry his LEO ID and badge, as he’s not being a cop.

  4. Joel,

    I have a hard time believing that teacher/LEO. Your off duty badge and ID card are specifically for those times where you might have to identify yourself. I don’t know about Texas, but in Missouri officers have arrest powers throughout the state for felonies. Technically, there really is no “off-duty”.

    There isn’t any need for an officer to make a big scene if he is stopped. The act of taking out your license allows the on duty officer ample opportunity to see your badge and ID card. So if an officer tells you that he never asked to be let out of a ticket, he is probably telling the truth, but only because the asking is unnecessary.

  5. I wasn’t there, and even when I am, well, wherever, my lie detector is peccable; but the friend — you can find his blog by googling for Northern Muckraker — is a pretty smart, pretty savvy guy, and there are cops (I count a very small number as friends) for whom honor (and, yeah, that’s not a term I’m picking at random) is a really, really big deal.

  6. Someone once said ask the officer what is “testilying”?

    Ask the officer if he knows the name of any officers on his force who have received any discipline for testilying?

    Ask the officer whether he knows of any officer on his force who has ever being prosecuted, fired, or convicted for testilying?

    Ask the officer if he would be willing to submit to a lie detector test administered by an independent lie detector administrator?

    Ask the officer what is the “code of silence” between fellow police officers?

    http://www.soc.umn.edu/~samaha/cases/slobogin,%20testilying.htm
    Some of the following ideas from Reform the Police by Christopher Slobogin, University of Colorado Law Review (Fall 1996), cite as: 67 U.Colo.L.Rev. 1037 (1996).

    Lying to convict the innocent is undoubtedly rejected by most police, as well as by others, as immoral and unjustifiable. In contrast, lying intended to convict the guilty in particular, lying to evade the consequences of the exclusionary rule is so common and so accepted in some jurisdictions that the police themselves have come up with a name for it: “testilying.” See, Commission to Investigate Allegations of Police Corruption and the Anti Corruption Procedures of the Police Dep’t, City of New York, Commission Report 36 (1994) (Milton Mollen, Chair) [hereinafter Mollen Report] (“Several officers also told us that the practice of police falsification in connection with such arrests is so common in certain precincts that it has spawned its own word: ‘testilying.”‘).

    Irving Younger, The Perjury Routine, The Nation, May 8, 1967, at 596 97 (“Every lawyer who practices in the criminal courts knows that police perjury is commonplace.;””[T]he policeman is as likely to be indicted for perjury by his co worker, the prosecutor, as he is to be struck down by thunderbolts from an avenging heaven.”).

    Jay S. Silver, Truth, Justice, and the American Way: The Case Against the Client Perjury Rules, 47 Vand. L. Rev. 339, 358 n.75 (1994) (“The institutional tendency to tolerate police perjury likely stems from the prosecutor’s interest in maintaining smooth working relations with police, who gather the government’s evidence and are often its most important witnesses at trial, and from the prosecutor’s own competitive drive to win and to advance professionally.”);

    See Alan M. Dershowitz, Controlling the Cops; Accomplices to Perjury, N.Y. Times, May 2, 1994, at A17 (“I have seen trial judges pretend to believe officers whose testimony is contradicted by common sense, documentary evidence and even unambiguous tape recordings…. Some judges refuse to close their eyes to perjury, but they are the rare exception to the rule of blindness, deafness and muteness that guides the vast majority of judges and prosecutors.”);

    Nat Hentoff, When Police Commit Perjury, Wash. Post, Sept. 5, 1985, at A21 (describing the view of Michael Avery that prosecutors and judges do nothing about obvious police perjury); David Rudovsky, Why It Was Hands Off on the Police, Phila. Inq., Aug. 28, 1995, at A7 (describing instances in which prosecutors and judges ignored “hard evidence” of false warrant applications, false police reports, and perjury in a series of Philadelphia cases); Marty I. Rosenbaum, Inevitable Error: Wrongful New York State Homicide Convictions, 1965 1988, 18 N.Y.U. R ev. L. & Soc. Change 807, 809 (1990 91) (“[A] substantial number of the wrongful convictions … resulted from prosecutorial misconduct … includ[ing] … the conscious use of perjured testimony.”);

    “Police, plus perjury, equals polygraphy” by Donald A. Dripps. Journal article by Donald A. Dripps; Journal of Criminal Law and Criminology, Vol. 86, 1996 Prof. Dripps shows that polygraph examinations can make a powerful contribution towards determining the truth, and that the usual reasons for excluding polygraph evidence from judicial proceedings do not apply in the context of swearing contests in which one of the witnesses is a police officer. As the Fifth Circuit recently recognized in United States v. Posado,(5) the Supreme Court’s Daubert decision,(6) which liberalized the standard for admissibility of expert testimony. However, hooking police men and women up to machines undermines that trust; it tells the public that the credibility of officers of the law needs to be tested like that of criminal suspects, suspected traitors, and job applicants. Another idea is to follow the lead of foreign countries like France and India and require police conducting a house search to be accompanied by lay citizens who observe its execution. Theoretically, this procedure, called the panch system in India, would provide a neutral source of information about the search of the house. It could also be extended to other types of searches and seizures, as well as to interrogations.

    Another possible remedy, designed specifically to stymie the practice of inventing snitches, is to require the police to produce their informants in front of the issuing magistrate.

    Professor Morgan Cloud has argued that perjury about Fourth Amendment issues can be curbed by expanding the warrant requirement to all nonexigent searches and seizures and by simultaneously defining the exigency exception very narrowly. Morgan Cloud, The Dirty Little Secret, 43 Emory L.J. 1311, 1323 24 (1994).

    Police lying intended to convict someone, whether thought to be guilty or innocent, is wrong because once it is discovered, it diminishes one of our most crucial “social goods” trust in government. The exposure of police perjury damages the credibility of police testimony. The loss of police credibility on the stand diminishes law enforcement’s effectiveness in the streets. The extent other actors, such as prosecutors and judges, are perceived to be ignoring or condoning police perjury, the loss of public trust may extend beyond law enforcement to the criminal justice system generally.

    In the Mullen report, officers reported a litany of manufactured tales. For example, when officers unlawfully stop and search a vehicle because they believe it contains drugs or guns, officers will falsely claim in police reports and under oath that the car ran a red light (or committed some other traffic violation) and that they subsequently saw contraband in the car in plain view. To conceal an unlawful search of an individual who officers believe is carrying drugs or a gun, they will falsely assert that they saw a bulge in the person’s pocket or saw drugs and money changing hands. To justify unlawfully entering an apartment where officers believe narcotics or cash can be found, they pretend to have information from an unidentified civilian informant or claim they saw the drugs in plain view after responding to the premises on a radio run. To arrest people they suspect are guilty of dealing drugs, they falsely assert that the defendants had drugs in their possession when, in fact, the drugs were found elsewhere where the officers had no lawful right to be.

    The Mollen Report excerpt also refers to testilying during the warrant application process, which the Fourth Amendment requires take place under oath. Although estimating its prevalence is difficult, police misrepresentation on the application form and in oral testimony to the warrant magistrate has been recounted by numerous observers. Most frequent, it seems, is the invention of “confidential informants” (like the “unidentified civilian informant” referred to in the excerpt), a ploy that allows police to cover up irregularities in developing probable cause or to assert they have probable cause when in fact all they have is a hunch.

    Finally, police perjury also occurs in connection with the fabrication of their reports. Although not technically testimony, police know these reports may be dispositive in a case resolved through plea bargaining, and can be compared to testimony in cases that aren’t. As a result, “reportilying” also appears to be pervasive in some jurisdictions. The Mollen Commission, for instance, described how narcotics police “falsify arrest papers to make it appear as if an arrest that actually occurred inside a building [in violation of departmental regulations] took place on the street.” Professor Stanley Fisher has also documented prolific use of the “double filing” system, in which the official police file forwarded to the prosecution and provided to the defense is cleansed of exculpatory facts or possible impeachment evidence.

    Prosecutors put up with perjury because they need a good working relationship with the police to make their cases.
    Additionally, at bottom, they probably agree with the police that the end justifies the means. To the extent judges ignore obvious perjury, it is probably for the same reasons attributable to the prosecutor: sympathy for the police officer’s ultimate goal and, as Professor Morgan Cloud put it, “tact” the fact that “[j]udges simply do not like to call other government officials liars especially those who appear regularly in court.” Morgan Cloud, The Dirty Little Secret, 43 Emory L.J. 1311, 1323 24 (1994).

    Thus, officers who provide corroboration of their testimony, whether through panchas, videotape, or some other mechanism, should be commended and promoted for their efforts. Officers who expose police perjury should also be singled out for favorable treatment (although it cannot be denied that the rewards would have to be significant to break the code of silence followed by the police). The essential point is that the sensitivity training alluded to earlier is not enough. A society concerned about testilying must put its money where its mouth is.
    Yours in the Defense of Fellow Human Beings,
    Glen R. Graham, Attorney at Law, Tulsa, Oklahoma

  7. Officer, do you agree that a police officer being indicted for perjury by his co-worker, the prosecutor, is about as likely as being struck down by thunderbolts?

    Officer, do you know the name of any police officer in your department who has ever received a promotion or positive reward for breaking the “code of silence” against fellow police officers?

  8. How can a prosecutor charge a cop with perjury when, after all, he is just making sure that “justice” is done. Substantive “justice.”

    Nobody who works for the State (or municipality or county) understands what his or her damn job is. Problem numero uno.

  9. Officer what is “testilying”?

    Officer, do you know the name of any officers in your department who have received any discipline for testilying?

    Officer do you know of any officer in your department who has ever being prosecuted, fired, or convicted for testilying?

    Officer would you be willing to submit to a lie detector test administered by an independent lie detector administrator?

    Officer what is the “code of silence” between fellow police officers?

    Officer, do you agree that a police officer being indicted for perjury by his co worker, the prosecutor, is about as likely as being struck down by thunderbolts?

    Officer, do you know the name of any police officer in your department who has ever received a promotion or positive reward for breaking the “code of silence” against fellow police officers?
    See my post about it on my blog. Thanks – Glen

  10. And I’m thinking about offering a cash prize for any Houston or Harris County defense attorney who has been on the job for more than a year, and can pass a polygraph (administered by ex-DEA agent John Swartz) while saying that he has never failed to report the misconduct of another defense attorney.

  11. Uncle Ken,

    An interesting point. I don’t know that I could pass that exam (but I’m not sure I couldn’t). Lawyers, unlike cops, have a “rat rule” that obligates them to report misconduct of which they know, and you might be surprised how broadly some of my brethren interpret that rule. Besides which, when a lawyer rats on a fellow lawyer, he is not pissing off a guy with a gun on whom his life is likely at some point to depend. Rather, he’s cleaning up the profession.

    I suspect I can find someone to pass your polygraph, but I know you’re a gambling man — what’s your proposition, and what are your proposed stakes?

    Irrelevant, of course, because people don’t go to jail or prison (or, for that matter, avoid jail or prison) on the uncorroborated word of defense lawyers. They do on the uncorroborated word of cops.

    Can we agree that police officers (and defense lawyers) are neither more nor less honest than ordinary people — that some hew to the truth, some are compulsive liars, and the vast majority are somewhere in between, depending on the circumstances?

  12. Mark, on the subject of testilying, allow me to refer you to this recent law review article on the topic, see:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=981416

    As for Uncle Ken’s cash prize, I sure wouldn’t put up any money depending on polygraph as a reliable method of lie detection, particularly on that topic. One of the best ways to conceal deception from a polygraph is to use the equivalent of what method actors do – convince yourself of the lie. Many people do this routinely involving story lines that justify their own misdeeds or failure to do the right thing, so even if they did know of misconduct and cover it up, I’d expect many defense attorneys to pass anyway. Ditto for prosecutors who conceal Brady information, etc..

  13. Knowing Mark, well, not at all, let me try a little mindreading, anyway: the reason that he knows that his money is safe is not that the polygraph is accurate, but that it’s feared; he’s had a fair amount of experience, in his day job, of dealing with cops who have let bad behavior by other cops slide by.

    How’m I doing?

  14. This blog post is replacing one myth “that cops don’t lie” with another myth that “lie detector tests don’t lie”. Please do your own research on the reliability of polygraph tests before you trust your friend’s word on the reliability of his trade.

    The trained polygraph examiner uses the principle of misdirection to make his tests work. In other words, the questions that are supposed to act as the baseline questions are really not baseline questions at all — they’re just there for show.

    The real baseline questions are always unannounced and assumed by the polygraph examiner to either be true or false (based on the examiner’s personal opinion). In other words, a polygraph examiner will first make the assumption that every man he encounters will lie by default on a particular topic, and that every woman he encounters will lie by default on another topic. And then, the polygraph examiner will innocently ask those (supposed) baselines questions during the interview (pretending that they’re just some innocent random questions). So that’s it, the entire exercise is just a magic trick that’s based on flawed circular logic and a good dose of misdirection.

    The only real reason it still is being used today is because it can be used pretty indiscriminately to intimidate/accuse suspects and intimidate/lay off government employees. In the wrong hands, it can be a very dangerous tool which helps consolidate the political power of power-hungry government/administration officials, and which destroys the political/security career of the people they disagree with.

    Take a look at http://antipolygraph.org for some documentary proof and a bibliography which backs up and supports my (seemingly outlandish) claims.

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