For decades, the fight on the side of criminal defense lawyers has been to break the public and judicial mindset that cops don’t lie.
Why would he lie? He doesn’t know the defendant and has no reason to harbor any personal animosity toward him. Why would he lie about him?
This was the common refrain from judges as you argued that the officer’s testimony was false, at least about a critical fact such as whether the defendant consented to a search or admitted an element of a crime or the “poignant” smell of marijuana emanated from the car. There was no video. There was no recording. It was a cop’s word against a defendant’s. Why would the cop lie?
There they go again. Framing the guilty.
The answer was self-evident. They were sure of their bust, that they got the perp, and wanted to make sure the bust stuck. That was, in their mind, the job, to bust the guilty. Telling a little untruth to smooth over a bump, to fill in a gap, to accomplish what the law in all its brilliance would prohibit, was part of the job too. To a cop, it was a “white lie,” a good lie that served the greater good, as the defendant was guilty, a bad dude, and here he was taking a bad dude off the streets. What’s the problem?
This tendency to lie pervades all police work, not just high-profile violence, and it has the power to ruin lives. Law enforcement officers lie so frequently—in affidavits, on post-incident paperwork, on the witness stand—that officers have coined a word for it: testilying. Judges and juries generally trust police officers, especially in the absence of footage disproving their testimony. As courts reopen and convene juries, many of the same officers now confronting protesters in the street will get back on the stand.
The word was coined by the New York Times back in 1994, long before smartphones with video recording capabilities existed, and revealed to the world what we had been arguing all along. The point was to break through the pervasive presumption that cops don’t lie. They do. As the title of Mark Joseph Stern’s post says, Cops Lie.
Defense attorneys around the country believe the practice is ubiquitous; while that belief might seem self-serving, it is borne out by footage captured on smartphones and surveillance cameras. Yet those best positioned to crack down on testilying, police chiefs and prosecutors, have done little or nothing to stop it in most of the country. Prosecutors rely on officer testimony, true or not, to secure convictions, and merely acknowledging the problem would require the government to admit that there is almost never real punishment for police perjury.
One of the great hopes in the early days of video was that people would see what we had been saying all along, people would finally, finally, understand that their blind faith in the word of a cop was misplaced. Much like the argument that the cop was justified in beating or shooting the perp because reasons, the inherent doubt that a cop would testify falsely under oath, make a statement in an affidavit that was a wholesale fabrication, had to die. Cops lie.
But in the real world, distinguishing cop lies from truth is hard. Sometimes the lies are big. Sometimes they’re tiny, just enough to get over a hurdle. Often, they’re about silly background information that isn’t significant one way or another, but cops fill in the gaps of their information with details they don’t actually recall and just made up to make themselves not sound dumb.
Stern tries to argue for solutions to end cops lying, which would be a great accomplishment but for the fact that his fixes are naive, unworkable and simplistic. Foremost is putting the onus on prosecutors to sniff out the lies and then drop a dime on their witnesses.
Prosecutors could separately investigate, but they have little incentive to question an officer’s story: If they know an officer is lying, they cannot legally rely on his testimony; if they remain in the dark, they can still use his perjury to clinch a conviction. Moreover, prosecutors and police work together to put defendants behind bars, developing a team mentality that prevents prosecutors from scrutinizing officers’ testimony with appropriate skepticism. As long as officers’ lies cannot be proved false, prosecutors have little reason to question their account of events. As a New York assistant district attorney told the Mollen Commission: “Taking money is considered dirty, but perjury for the sake of an arrest is accepted. It’s become more casual.”
Non-lawyers, or in Stern’s case, a lawyer who’s never practiced law, imagine that there are nefarious discussions of lying in back rooms to wrongfully convict the bad dude. Cops don’t trust prosecutors, who are typically young and clueless. They don’t tell them they’re going to lie. They lie to the prosecutors like anyone else. And the cops are fine with it. And the prosecutors are too, knowing the symbiotic relationship between famed “two groups” Dick Wolf has told us about for decades.
If a prosecutor is honest and ethical, he won’t put a cop on the stand if he knows he will lie, but does he know? With video, he might, and that’s the game changer and in some offices, enough to put a cop on a “do not call” list of officers who can’t be trusted. But without it, he’s just a cop telling his side of the story. What’s a prosecutor supposed to do? Stern looks to Frisco’s progressive district attorney, Chesa Boudin, for a quick fix.
A third reform may have more direct practical consequences for victims of routine testilying designed to avoid the exclusionary rule. Too often, officers find a trivial reason to stop someone, or just make one up, then discover drugs or weapons in the ensuing search. The target of these pretextual stops is usually a person of color. “We know ‘driving while black’ is a reality for far too many people,” Boudin said. “If you have dark skin, you’re more likely to get pulled over, more likely to get searched, and more likely to get arrested. You’re also more likely to have force used during your arrest than if you’re white.”
The problem is that while cops lie, they also arrest the killer, rapist and thief. The Boudin solution is to refuse to prosecute pretext stop cases, as well as other petty offenses that he deems too race-related to pursue. It’s not that he’s wrong, but that if a cop pulls over Charles Manson for a broken taillight, does he get a pass? If a black guy (sometimes even black guys commit crimes, you know) snatches your purse with your week’s pay in it, below the threshold of felony theft, is it too trivial to be worth prosecuting?
Cops lie. Except then they don’t. The trick is distinguishing between the two, to treat cops with the same skepticism any other witness would receive. But expecting prosecutors to perform voodoo and know truth from lies, or indulging simplistic racial assumptions, ignores the flip side of cops lie. They also tell the truth, and sometimes get the bad dude who would otherwise go out and harm someone. To attempt to flip the presumption from cops never lie to cops always lie isn’t true, real or helpful. Cops lie, except when they don’t.