Oct. 6, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield “crosses” Senior United States District Court Judge Richard G. Kopf about the impact of video on the judiciary’s realization that the historically trustworthy police officer isn’t always so trustworthy.

Judge Kopf:

Three caveats:

I can’t speak for other judges.

I am old. Younger judges are far more likely to be skeptical of the police than those of us who grew up with the mythology of the 1950s.

As a federal judge, and save for interdiction stops on the Interstate highways involving a bunch of dope and the Nebraska State Patrol (that uses in-camera video), most of my cases are not dependent upon the credibility of one cop. Moreover, my motions to suppress are first heard by a tough and experienced Magistrate Judge, so I make fewer credibility determinations than you might expect.

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Q. Ten years ago, in the typical one-on-one swearing contest between cop and defendant, what were the chances the defendant would prevail?

A. The cop would normally prevail. By the way, I seldom saw defendant’s take the stand and testify under oath. Thus, I infrequently saw “the typical one-on-one swearing contest.”

Q. To what do you attribute the fact that defendants didn’t testify at suppression hearing?

A. Probably, the failure of defendants to testify at suppression hearings was motivated by defense counsel’s fear that such testimony could later be used to enhance the defendant’s sentence if the defendant was found to have lied. Moreover, such testimony might cause the government to refrain from offering a cooperation plea agreement later on. Finally, counsel may have believed that a trial would take place even if the suppression motion failed and thus exposing the defendant to cross-examination prior to trial was not worth the risk that such testimony could be used during the trial. In this regard, defense counsel instinctively (and properly) fear exposing defendants to the rigors of cross-examination unless absolutely critical.

Q. In the past few years, having seen videos proving that cops lie, can be abusive, shoot without justification, has this changed the equation?

A. Yes. It has changed my perspective, particularly when I deal with a local cop from a small police force. Overall, I am generally more skeptical.

Q. Do judges view the credibility determination as a matter of going with the odds?

A. To a degree, I view credibility determinations as going with the odds. But, and this is important, I have always known enough about life and probabilities not to rely too heavily on “odds,” and this is particularly true now after the recent events to which you have referred.

Q. What will it take for judges to believe that police are not always the paragons of virtue they claim to be?

A.  At least for me, that realization has hit me hard rather late in life. As you have noted above, the events of the past few years, captured on video, are powerful proof that cops can be remarkable con artists.

Q. What can the defense do today when there is no video to prove misconduct or abuse has occurred?

A. Dive deep into the facts. Give me as much of the background facts as you can. The more the better. Get me information about the defendant and his or her background. Same with the cop. Try to put me at the scene.

While it is dangerous, think hard about putting your client on the stand.

Q. Given that police are almost invariably more experienced and well-trained at testifying, while defendants may well have a less than savory background, what can a “dirty” defendant do when a pristine cop, who claims to have “no motive to lie,” lies?

 As I have said, the more I know about the background facts the more I can evaluate the likelihood that a “pristine” cop is lying. For example, assuming a “dirty” defendant does not testify, if the claim is that there was no consent to search the auto, and it was a cold and snowy day with the wind blowing hard out of the north, and the cop failed to obtain written consent or make an audio or video recording of the oral consent, then the “pristine” cop’s assertion that the defendant consented becomes suspicious, at the very least. As in other things, context is often critical.

Q. If you believe that a police officer or agent has lied under oath in your courtroom, is it sufficient that the prosecution lose the point or should the officer face more severe sanctions? If so, what?

A. No it is sure as hell is not sufficient. A cop who lies should be subjected to a perjury prosecution. I should be the one to publicly refer the matter to the prosecutor. Furthermore, I would not hesitate to publicly “ban” such a cop from ever appearing before me again.