Police Perjury and what to do about it - archive it
Testimony of Alan M. Dershowitz
House of Representatives Judiciary Committee
December 1, 1998
My name is Alan M. Dershowitz and I have been teaching criminal law at Harvard Law School for 35 years. I have also participated in the litigation--especially at the appellate level--of hundreds of federal and state cases, many of them involving perjury and the making of false statements. I have edited a casebook on criminal law and have written 10 books and hundreds of articles dealing with subjects relating to the issues before this committee. It is an honor to have been asked to share my experience and expertise with you all here today.
For nearly a quarter century, I have been teaching, lecturing and writing about the corrosive influences of perjury in our legal system, especially when committed by those whose job it is to enforce the law, and ignored--or even legitimized--by those whose responsibilities it is to check those who enforce the law.
On the basis of my academic and professional experience, I believe that no felony is committed more frequently in this country than the genre of perjury and false statements. Perjury during civil depositions and trials is so endemic that a respected appellate judge once observed that "experienced lawyers say that, in large cities, scarcely a trial occurs in which some witness does not lie." He quoted a wag to the effect that cases often are decided "according to the preponderance of perjury."(1) Filing false tax returns and other documents under pains and penalties of perjury is so rampant that everyone acknowledges that only a tiny fraction of offenders can be prosecuted. Making false statements to a law enforcement official is so commonplace that the Justice Department guidelines provide for prosecution of only some categories of this daily crime. Perjury at criminal trials is so common that whenever a defendant testifies and is found guilty, he has presumptively committed perjury.(2) Police perjury in criminal cases - particularly in the context of searches and other exclusionary rule issues - is so pervasive that the former police chief of San Jose and Kansas City has estimated that "hundreds of thousands of law-enforcement officers commit felony perjury every year testifying about drug arrests" alone.(3)
In comparison with their frequency, it is likely that false statement crimes are among the most under-prosecuted in this country. Though state and federal statutes carry stringent penalties for perjury, few perjurers ever actually are subjected to those penalties. As prosecutor E. Michael McCann has concluded, "Outside of income tax evasion, perjury is probably the most underprosecuted crime in America."(4) Moreover, there is evidence that false statements are among the most selectively prosecuted of all crimes, and that the criteria for selectivity bears little relationship to the willfulness or frequency of the lies, the certainty of the evidence or any other neutral criteria relating to the elements of perjury or other false statement crimes. Professor Richard H. Underwood, the Spears-Gilbert Professor of Law at the University of Kentucky's law school, writes that:
more often, the [perjury] law has been invoked for revenge, or for the purpose of realizing some political end (the very base reason that lies are sometimes told!), or for the purpose of nabbing a criminal who might otherwise be difficult to nab, or, dare I say it, for the purpose of gaining some tactical advantage. Proving that perjury was committed, or that a "false statement" or a "false claim" was made, may be an easier, or a more palatable, brief for the prosecution.(5)
Historically, false statements generally have admitted of considerable variations in degree.(6) The core concept of perjury was that of "bearing false witness," a biblical term that consisted in accusing another of crime.(7)
Clearly, the most heinous brand of lying is the giving of false testimony that results in the imprisonment or even execution of an innocent person. Less egregious, but still quite serious, is false testimony that results in the conviction of a person who committed the criminal conduct, but whose rights were violated in a manner that would preclude conviction if the police were to testify truthfully. There are many other points on this continuum, ranging from making false statements about income or expenses to testifying falsely in civil trials. The least culpable genre of false statements are those that deny embarrassing personal conduct of marginal relevance to the matter at issue in the legal proceeding.
Much of the public debate about President Clinton and possible perjury appears to ignore the following important lessons of history:
1. that the overwhelming majority of individuals who make false statements under oath are not prosecuted;
2. that those who are prosecuted generally fall into some special category of culpability or are victims of selective prosecution; and,
3. that the false statements of which President Clinton is accused fall at the most marginal end of the least culpable genre of this continuum of offenses and would never even be considered for prosecution in the routine case involving an ordinary defendant.
My interest in the corrosive effects of perjury began in the early 1970s when I represented--on a pro bono basis--a young man who was both a member of and a government informer against the Jewish Defense League. He was accused of making a bomb that caused the death of a woman, but he swore that a particular policeman, who had been assigned to be his handler, had made him certain promises in exchange for his information. The policeman categorically denied making any promises, but my client had--unbeknownst to the policeman--surreptitiously taped many of his conversations with the policeman. The tapes proved beyond any doubt that the policeman had committed repeated perjury, and all charges were dropped against my client. But the policeman was never charged with perjury. Instead he was promoted.(8)
The following year, I represented, on appeal, a lawyer accused of corruption. The major witness against him was a policeman who acknowledged at trial that he himself had committed three crimes while serving as a police officer. He denied that he had committed more than these three crimes. It was subsequently learned that he had, in fact, committed hundreds of additional crimes, including some he specifically denied under oath. He too was never prosecuted for perjury, because a young Assistant U.S. Attorney, named Rudolph Giuliani, led a campaign against prosecuting this admitted perjurer. Shortly afterward, the policeman explained:
Cops are almost taught how to commit perjury when they are in the Police Academy. Perjury to a policeman - and to a lawyer, by the way - is not a big deal. Whether they are giving out speeding tickets or parking tickets, they're almost always lying. But very few cops lie about the actual facts of a case. They may stretch an incident or whatever to fit it into the framework of the law based on what they consider a silly law of the Supreme Court.(9)
Nor is the evidence of police perjury merely anecdotal. Numerous commission reports have found rampant abuses in police departments throughout the country. All
objective reports point to a pervasive problem of police lying, and tolerance of the lying by prosecutors and judges, all in the name of convicting the factually guilty whose rights may have been violated and whose convictions might be endangered by the exclusionary rule.
As the Mollen Commission reported:
The practice of police falsification in connection with such arrests is so common in certain precincts that it has spawned its own word: "testilying." . . . Officers also commit falsification to serve what they perceive to be "legitimate" law enforcement ends - and for ends that many honest and corrupt officers alike stubbornly defend as correct. In their view, regardless of the legality of the arrest, the defendant is in fact guilty and ought to be arrested.(10)
Even more troubling, in the Mollen Commission's view, "the evidence suggests that the . . . commanding officer not only tolerated, but encouraged, this unlawful practice." The commission provided several examples of perjured cover stories that had been suggested to a young officer by his supervisor:
Scenarios were, were you going to say (a) that you observed what appeared to be a drug transaction; (b) you observed a bulge in the defendant's waistband; or (c) you were informed by a male black, unidentified at this time, that at the location there were drug sales.
QUESTION: So, in other words, what the lieutenant was telling you is "Here's your choice of false predicates for the arrest."
OFFICER: That's correct. Pick which one you're going to use.(11)
Nor was this practice limited to police supervisors. As the Mollen Commission reported:
Several former and current prosecutors acknowledged - "off the record" - that perjury and falsification are serious problems in law enforcement that, though not condoned, are ignored. The form this tolerance takes, however, is subtle, which makes accountability in this area especially difficult.(12)
The epidemic is conceded even among the highest ranks of law enforcement. For example, William F. Bratton, who has headed the police departments of New York City and Boston, has confirmed that "testilying" is a "real problem that needs to be addressed." He also placed some of the responsibility squarely at the feet of prosecutors:
When a prosecutor is really determined to win, the trial prep procedure may skirt along the edge of coercing or leading the police witness. In this way, some impressionable young cops learn to tailor their testimony to the requirements of the law.(13)
Many judges who listen to or review police testimony on a regular basis privately agree with Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, who publicly stated: "It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers," and that the reason for it is that "the exclusionary rule . . . sets up a great incentive for . . . police to lie to avoid letting someone they think is guilty, or they know is guilty, go free."(14) Or, as Judge Irving Younger explained, "Every lawyer who practices in the criminal courts knows that police perjury is commonplace."(15)
As these judges attest, this could not happen without active complicity of many prosecutors and judges. Yet there is little apparent concern to remedy that serious abuse of the oath to tell the truth--even among those who now claim to be so concerned with the corrosive influences of perjury on our legal system. The sad reality appears to be that most people care about perjury only when they disapprove of the substance of the lie or of the person who is lying.
A perfect example of selective morality regarding perjury occurred when President George Bush pardoned former Secretary of Defense Caspar Weinberger in 1992, even though physical records proved that Weinberger had lied in connection with his testimony regarding knowledge of Iran arms sales. Not only was there no great outcry against pardoning an indicted perjurer, some of the same people who insist that President Clinton not be allowed to "get away" with lying were perfectly prepared to see Weinberger "get away" with perjury. Senator Bob Dole of Kansas spoke for many when he called the pardon a "Christmas Eve act of courage and compassion."(16)
The real issue is not the handful of convicted perjurers appearing before this committee, but the hundreds of thousands of perjurers who are never prosecuted, many for extremely serious and calculated acts of perjury designed to undercut constitutional rights of unpopular defendants.
If we really want to reduce the corrosive effects of perjury on our legal system, the place to begin is at or near the top of the perjury hierarchy. If instead we continue deliberately to blind ourselves to pervasive police perjury and other equally dangerous forms of lying under oath and focus on a politically charged tangential lie in the lowest category of possible perjury (hiding embarrassing facts only marginally relevant to a dismissed civil case), we would be reaffirming the dangerous message that perjury will continue to be a selectively prosecuted crime reserved for political or other agenda-driven purposes.
A Republican aide to this committee was quoted by The New York Times as follows:
"In the hearing, we'll be looking at perjury and its consequences, and whether it is tenable for a nation to have two different standards for lying under oath; one for the President and one for everyone else."(17)
On the basis of my research and experiences, I am convinced that if President Clinton were an ordinary citizen, he would not be prosecuted for his allegedly false statements, which were made in a civil deposition about a collateral sexual matter later found inadmissible in a case eventually dismissed and then settled. If President Clinton were ever to be prosecuted or impeached for perjury on the basis of the currently available evidence, it would indeed represent an improper double standard: a selectively harsher one for the president (and perhaps a handful of other victims of selective prosecution) and the usual laxer one for everyone else.
1. 0 Jerome Frank, Courts On Trial 85 (1949).
2. 0 Many such defendants now have years added on to their sentences under the federal guidelines, which add points for perjury at trial.
3. 0 Joseph D. McNamara, Has the Drug War Created an Officer Liars' Club? Los Angeles Times, Feb. 11, 1996, at M1.
4. 0 From Mark Curriden, The Lies Have It, A.B.A. J., May 1995, at 71, quoted in Lisa C. Harris, Perjury Defeats Justice, 42 Wayne L. Rev. 1755, 1768-69 (1996) (footnote omitted). See also Hon. Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35, 51 n.52 (1996) ("Perjury cases are not often pursued, and perhaps should be given greater consideration by prosecuting attorneys as a means of enhancing the credibility of the trial system generally."); Fred Cohen, Police Perjury: An Interview With Martin Garbus, 8 Crim. L. Bull. 363, 367 (1972), quoted in Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037, 1060 n.13 (1996) (" no trial lawyer that I know will argue that police perjury is nonexistent or sporadic.")
5. 0 Richard H. Underwood, Perjury: An Anthology, 13 Ariz. J. Int'l & Comp. L. 307, 379 (1996).
6. 0 See, e.g., Richard H. Underwood, False Witness: A Lawyer's History of the Law of Perjury, 10 Ariz. J. Int'l & Comp. L. 215, 252 n.157 (1993).
7. 0 See, e.g., Underwood, id. at 223 and accompanying note 37.
8. 0 See Dershowitz, The Best Defense 67 (1982). The chief of detectives of New York wrote a book about this case in which he confirmed these facts. See Albert Seedman, Chief! (1974).
9. 0 See Dershowitz, The Best Defense, supra note 8, at 377. This was confirmed in a book entitled Prince of the City (and a motion picture of the same name), whose contents were approved by the policeman. See Robert Daley, Prince of the City (1978).
10. 0 Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Practices of the Police Department, Milton Mollen, Chair; July 7, 1994, at 36 [hereinafter Mollen Report]. The report then went on to describe how
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.
Id. at 38.
11.0 Mollen Report, supra note 10, at 41.
12.0 Mollen Report, supra note 10, at 42.
13.0 Boston Globe, November 15, 1995, at 1.
14.0 Stuart Taylor, Jr., For the Record, American Lawyer, Oct. 1995, at 72.
15.0 Irving Younger, The Perjury Routine, The Nation, May 8, 1967, at 596-97.
16.0 Elaine Sciolino, On the Question of Pardons, Dole has Taken Both Sides, The New York Times, 16 Oct. 1996, at A15.
17. 0 Eric Schmitt, Panel Considers Perjury and Its Consequences, The New York Times, Nov. 28, 1998, at A13.
(Cite as: 67 U. Colo. L. Rev. 1037)
University of Colorado Law Review
*1037 TESTILYING: POLICE PERJURY AND WHAT TO DO ABOUT IT
Christopher Slobogin [FNa]
Copyright © 1996 University of Colorado Law Review, Inc.; Christopher
O.J. Simpson's trial for the murders of Nicole Brown Simpson and Ronald Goldman provided the nation with at least two pristine examples of police perjury. First, there was the exposure of Detective Marc Fuhrman as a liar. While under oath at trial the detective firmly asserted, in response to F. Lee Bailey's questions, that he had not used the word "nigger" in the past decade. The McKinny tapes and assorted other witnesses made clear this statement was an untruth. That proof of perjury, together with the defense's innuendo that Fuhrman had planted a glove smeared with Nicole's blood on Simpson's property, severely damaged the prosecution's case. [FN1]
Second, and less well known, is Judge Lance Ito's finding that Detective Philip Vannatter had demonstrated a "reckless disregard for the truth" in the warrant application for the search of Simpson's house. Among other misrepresentations, [FN2] Vannatter insinuated that Simpson had suddenly taken flight to Chicago when in fact police knew the trip had been planned for months, and unequivocally asserted that the substance found on Simpson's Bronco was blood when in fact it had not yet been tested. [FN3]
A third possible series of perjurious incidents occurred at the suppression hearing, when both Fuhrman and Vannatter stated that police investigating Simpson's compound had not considered O.J. a suspect, but rather had entered the premises solely out of concern for the athlete's welfare (and therefore had not needed probable cause or a warrant). Although both Judge Ito and *1038 Magistrate Kathleen Kennedy‑Powell accepted these assertions, [FN4] most who have considered the matter believe otherwise, [FN5] on the common sense ground that police who knew that O.J. had beaten Nicole on past occasions, found what appeared to be blood on his car, and were unable to locate him after the murders would zero in on him as a possible culprit.
If one believes the defense theory of the case, Fuhrman's and Vannatter's deceitful exploits were a racist attempt to send an innocent person to jail, [FN6] as well as a form of protective lying, meant to prevent discovery of their own criminal activity in planting evidence. If one believes the prosecution's theory, these lies were merely a well‑intentioned effort, albeit an improper one, to ensure conviction of a guilty person. On the latter theory, Fuhrman's denials at trial were meant to avoid a topic that would only have distracted the jury from the "real" issue. Similarly, Vannatter's lies in the warrant application and Fuhrman's and Vannatter's probable dissembling at the suppression hearing were designed to cover up irregularities in the evidence gathering process that, if discovered, might have lead to exclusion of crucial incriminating information.
We may never know with certainty the reason for the perjury in the Simpson case. But we do know that, whatever the motivation, the perjury was wrong. If the lying occurred to frame an innocent person, it was clearly corrupt. If instead it was meant to facilitate conviction of a person the police witnesses thought to be guilty, it was also reprehensible. Although, as we shall see, many police and even some attorneys and judges seem to think otherwise, lying to convict a guilty person is wrong for several reasons. It is wrong because it involves lying under oath to judicial officers and jurors. It is wrong because it keeps from those fact finders information relevant to constitutional and other *1039 issues. And it is wrong because the police cannot be counted upon to get guilt right.
Perhaps most importantly, 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. [FN7] First, of course, the exposure of police perjury damages the credibility of police testimony. As the aftermath of the Fuhrman debacle has shown, the revelation that some police routinely and casually lie under oath makes members of the public, including those who serve on juries, less willing to believe all police, truthful or not. One comment that a New York prosecutor made about the impact of the Simpson case illustrates the point: "Our prosecutors now have to begin their cases defending the cops. Prosecutors have to bring the jury around to the opinion that cops aren't lying. That's how much the landscape has changed." [FN8]
Police perjury can cause other systemic damage as well. Presumably, for instance, the loss of police credibility on the stand diminishes law enforcement's effectiveness in the streets. Most significantly, to the extent other actors, such as prosecutors and judges, are perceived to be ignoring or condoning police perjury, [FN9] the loss of public trust may extend beyond law enforcement to the criminal justice system generally.
*1040 Although both lying to convict the innocent and lying to convict the guilty thus deserve condemnation, this article will focus on the latter because it is the more resistant to change and the more prevalent (two traits that are not unrelated). 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 [FN10]‑‑is so common and so accepted in some jurisdictions that the police themselves have come up with a name for it: "testilying." [FN11]
Part I of this article describes the nature and causes of testilying in more detail. Part II then examines several proposals for curtailing it, ranging from expansion of the warrant requirement to the use of polygraph examinations at suppression hearings. All of these proposals are found at least partially wanting, if for no other reason than that they are aimed at suppressing lying by the police, rather than at reducing the pressure that causes it. Part III thus advances another proposal, or actually a trio of proposals. Specifically, it suggests that redefining probable cause in a more flexible manner and replacing the exclusionary rule with a damages remedy, together with clear rewards and punishments connected with lying, would significantly decrease testilying by diminishing the urge both to lie and to cover it up. While these proposals may be viewed as drastic medicine, they are defensible in their own right, and at the same time may go a long way toward shoring up the trust in the police and other government officials that is essential to a well‑ functioning law enforcement and criminal justice system.
*1041 I. The Nature of Testilying
Whether it is conjecture by individual observers, [FN12] a survey of criminal attorneys, [FN13] or a more sophisticated study, [FN14] the existing literature demonstrates a widespread belief that testilying is a frequent occurrence. Of course, there is Alan Dershowitz's well‑known assertion (made long before his participation in the O.J. Simpson case) that "almost all" officers lie to convict the guilty. [FN15] Dershowitz may have been engaging in hyperbole, but his claim is not as far off as one might think. In one survey, defense attorneys, prosecutors, and judges estimated that police perjury at Fourth Amendment suppression hearings occurs in twenty to fifty percent of the cases. [FN16] Jerome Skolnick, a veteran observer of the police, has stated that police perjury of this type is "systematic." [FN17] Even prosecutors‑‑or at least former *1042 prosecutors‑‑use terms like "routine," [FN18] "commonplace," [FN19] and "prevalent" [FN20] to describe the phenomenon. Few knowledgeable persons are willing to say that police perjury about investigative matters is sporadic or rare, except perhaps the police, and, as noted above, [FN21] even many of them believe it is common enough to merit a label all its own. [FN22]
Although testilying can occur at any stage of the criminal process, including trial, it usually takes place during the investigative and pretrial stages, since it is most frequently an attempt to cover up illicit evidence gathering. One of the best descriptions of such perjury comes from the Mollen Commission, named after Judge Milton Mollen, who led an investigation into corruption in the New York City Police Department in the early 1990s:
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 *1043 had drugs in their possession when, in fact, the drugs were found elsewhere where the officers had no lawful right to be. [FN23]
As this excerpt suggests, the most common venue for testilying is the suppression hearing and the most frequent type of suppression hearing perjury is post hoc fabrication of probable cause. [FN24] However, lying about events in the interrogation room may be routine as well. Professor Richard Uviller's on‑the‑spot observations of the police led him to conclude, for example, that police may often "advance slightly the moment at which the Miranda warnings were recited to satisfy the courts' insistence that they precede the very first question in a course of interrogation." [FN25]
The Mollen Report excerpt also refers to testilying during the warrant application process, which the Fourth Amendment requires take place under oath. [FN26] 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. [FN27] 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. [FN28]