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Fwd: Police Perjury - cops call it "testilying"

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  • law_self_help
    ... wrote: ... Deborah Young once thought police were honest, too. But while an assistant U.S. attorney for the District of Columbia in
    Message 1 of 9 , Dec 1, 2005
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      --- In Legal_Self_Representation@yahoogroups.com, "law_self_help"
      <law_self_help@y...> wrote:

      When they are legally permitted to lie:
      ----------------------------------------------

      "Deborah Young once thought police were honest, too. But while an
      assistant U.S. attorney for the District of Columbia in the 1980s,
      Young said she was shocked to learn the extent to which police can
      legally lie.

      Her Connecticut Law Review article, "Unnecessary Evil: Police Lying
      in Interrogations" provides examples of ways police can legally
      deceive: by pretending to have fingerprints on a stolen checkbook,
      putting bogus blood on a gun believed to be a murder weapon and lying
      about the results of a polygraph test -- all to induce confessions of
      crimes. Judges have ruled each of these tricks acceptable, as a
      necessary evil. Young disagrees.

      "I'm not persuaded by the argument that police have to lie to get the
      job done, except in a few instances, such as undercover work," Young
      said. "I certainly don't think police should lie in getting warrants
      or in testifying. When police are under oath and committing perjury,
      that should be clear, a bright line. But we know that occurs."

      Police even have a term for it: "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]

      *1044 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." [FN29] 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. [FN30]

      The most obvious explanation for all of this lying is a desire to
      see the guilty brought to "justice." As law enforcement officers,
      the police do not want a person they know to be a criminal to escape
      conviction simply because of a "technical" violation of the
      Constitution, a procedural formality, or a trivial "exculpatory"
      fact. As Skolnick puts it, the officer "lies because he is skeptical
      of a system that suppresses truth in the interest of the criminal."
      [FN31] A related reason for police dissembling is the institutional
      pressure to produce "results," which can lead police to cut corners
      in an effort to secure convictions. [FN32] Peer practice may also
      play a role. One reason Skolnick says police perjury is "systematic"
      is that "police know that other police are perjuring themselves."

      *1045 These motivations are probably not the whole explanation,
      however. The police officer who lies to convict a criminal is
      generally lying under oath in a public legal forum. [FN34] Thus, the
      lying officer is exposed to criminal charges in a proceeding
      involving a legally trained adversary and open to‑‑
      indeed, usually
      directed against‑‑those who can prove the perjury.

      That perjury persists despite these risks can be explained by one
      simple factor: police think they can get away with it. Police are
      seldom made to pay for their lying. To some extent, this immunity
      may be due to their own expertise at deceit. Many prosecutors and
      judges believe perjury is systematic and often suspect it is
      occurring in individual cases. But they also frequently claim that
      they are not sure enough to do anything about it; [FN35] after all,
      the typical situation pits a police officer, well trained on how
      to "constitutionalize" a case, against a person charged with a crime,
      who is decidedly less aware of the relevant law.

      However, many observers believe that perjury is frequently
      apparent, and that, even so, prosecutors and judges rarely take
      action against it.
      Probably the most stunning evidence of prosecutorial and judicial
      nonchalance toward police perjury is Myron Orfield's study of the
      Chicago system. [FN39] His study is stunning because, unlike many of
      the comments on this issue, [FN40] Orfield's findings are based on
      the views of prosecutors and judges as well as those of defense
      attorneys. In his survey of these three groups (which together
      comprised twenty‑seven to forty‑one individuals,
      depending on the
      question), 52% believed that at least "half of the time" the
      prosecutor "knows or has reason to know" that police fabricate
      evidence at suppression hearings, and 93%, including 89% of the
      prosecutors, stated that prosecutors had such knowledge of
      perjury "at least some of the time." [FN41] Sixty‑one percent,
      including 50% of the state's attorneys, believed that prosecutors
      know or have reason to know that police fabricate evidence in case
      reports, and 50% of the prosecutors believed the same with respect to
      warrants (despite the fact that many prosecutors refused to talk
      about this latter area). [FN42] While close to half of all
      respondents believed that prosecutors "discourage" such perjury and
      fabrication, [FN43] a greater percentage believed that
      they "tolerate" *1047 it, [FN44] and 15% believed that prosecutors
      actually "encourage" it. [FN45] One former prosecutor described what
      he called a "commonly used" technique of steering police testimony by
      telling officers "[i] f this happens, we win. If this happens, we
      lose." [FN46] Most amazingly, 29% of the respondents did not equate
      lying at a suppression hearing with the crime of perjury. [FN47]
      Although the respondents' views on judicial, as opposed to
      prosecutorial, attitudes toward testilying were not as directly
      plumbed in this survey, when asked whether Chicago's criminal justice
      system effectively controls policy perjury at suppression hearings,
      69% of the respondents answered "no." [FN48]



      Prosecutors put up with perjury because they need a good working
      relationship with the police to make their cases. [FN49]
      Additionally, at bottom, they probably agree with the police that the
      end justifies the means. [FN50] Judicial acquiescence to perjury can
      be explained to some extent by prosecutorial failure to make the case
      for it. But defense attorney arguments and the judge's own
      observations can provide plenty of evidence of testilying in at least
      some cases. 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 [FN51] and, as
      Professor *1048 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."
      [FN52]

      --- End forwarded message ---
    • Advancepum@aol.com
      They lie more in the trials and get away with it all of the time. Then you have to prove that they are lieing to get to an even point in the trial. Paul
      Message 2 of 9 , Dec 2, 2005
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        They lie more in the trials and  get away with it all of the time. Then you have to prove that they are lieing to get to an even point in the trial.
        Paul

        When they are legally permitted to lie:
        ----------------------------------------------


      • dbrascojr
        If cops lieing at trial pisses you off, what about when people tell the truth, then the judge diddles the transcript? www.crookedcolumbiacounty.com
        Message 3 of 9 , Dec 3, 2005
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          If  cops lieing at trial pisses you off, what about when people tell the truth, then the judge diddles the transcript? www.crookedcolumbiacounty.com 

          Advancepum@... wrote:
          They lie more in the trials and  get away with it all of the time. Then you have to prove that they are lieing to get to an even point in the trial.
          Paul

          When they are legally permitted to lie:
          ----------------------------------------------



        • Don Schwarz
          ALL COURT PROCEEDINGS should be put on local cable TV or on the Internet. Sunlight is the best disinfectant Justice Brandeis. What are they ashamed of in
          Message 4 of 9 , Dec 3, 2005
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            ALL COURT PROCEEDINGS
            should be put on local cable TV or
            on the Internet.

            "Sunlight is the best disinfectant"
            Justice Brandeis.

            "What are they ashamed of in their courts?"
            Don Schwarz


            At 01:35 AM 12/3/05 -0800, you wrote:
            >If cops lieing at trial pisses you off, what about when people tell the
            >truth, then the judge diddles the transcript?
            ><http://www.crookedcolumbiacounty.com>www.crookedcolumbiacounty.com
            >
            >Advancepum@... wrote:
            >They lie more in the trials and get away with it all of the time. Then
            >you have to prove that they are lieing to get to an even point in the trial.
            >Paul
            >>
            >>When they are legally permitted to lie:
          • frances jo
            That s called testilying and there s some case ruling that allows it. I once had the case somewhere. ... -- When a man who is honestly mistaken hears the
            Message 5 of 9 , Dec 3, 2005
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              That's called testilying and there's some case ruling that allows it.  I once had the case somewhere.

              Advancepum@... wrote:
              They lie more in the trials and  get away with it all of the time. Then you have to prove that they are lieing to get to an even point in the trial.
              Paul

              When they are legally permitted to lie:
              ----------------------------------------------


              
              
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              -- 
              When a man who is honestly mistaken hears the truth, he will either 
              quit being mistaken, or cease to be honest. --Unknown
              
              "If ye love wealth better than liberty, the tranquility of servitude 
              better than the animating contest of freedom, go home from us in peace; 
              We ask not your counsels or your arms; Crouch down and lick the hands 
              which feed you; May your chains set lightly upon you, and may posterity 
              forget that ye were our countrymen." -- Samuel Adams
            • dbrascojr
              Don - you are sooo right - to expose the corruption firsthand! www.crookedcolumbiacounty.com Don Schwarz wrote: ALL COURT
              Message 6 of 9 , Dec 4, 2005
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                Don - you are sooo right - to expose the corruption firsthand!
                www.crookedcolumbiacounty.com  

                Don Schwarz <vigilespaladin@...> wrote:
                ALL COURT PROCEEDINGS
                should be put on local cable TV or
                on the Internet.

                "Sunlight is the best disinfectant"
                Justice Brandeis.

                "What are they ashamed of in their courts?"
                Don Schwarz


                At 01:35 AM 12/3/05 -0800, you wrote:
                >If  cops lieing at trial pisses you off, what about when people tell the
                >truth, then the judge diddles the transcript?
                ><http://www.crookedcolumbiacounty.com>www.crookedcolumbiacounty.com
                >
                >Advancepum@... wrote:
                >They lie more in the trials and  get away with it all of the time. Then
                >you have to prove that they are lieing to get to an even point in the trial.
                >Paul
                >>
                >>When they are legally permitted to lie:




              • Don Schwarz
                How do you know if the system is broken and needs fixing, if you ain t sitting there in the courtroom and try to convince about 100,000 people in your state
                Message 7 of 9 , Dec 4, 2005
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                  How do you know if the system is broken
                  and needs fixing, if you ain't sitting there
                  in the courtroom and try to convince about
                  100,000 people in your state the courts are broken?

                  Imagine if only 1000 people were able to see
                  a single court proceeding how it would affect
                  what they were talking about.

                  The media only covers show trials. When the off-duty drunk
                  cop was in the South Boston court, there were no cameras.
                  When the Quincy cops were in court for shooting up the
                  street lights in the City, there were no cameras in court
                  then either!

                  Ignorance of the law is no excuse, but being ignorant
                  of what's going on in our courts is OK!


                  Imagine if my court proceedings were televised
                  and you could have watched the cops refuse
                  to testify under oath pleading the 5th!

                  "Sunlight ( televised proceedings) is the best disinfectant"
                  ------------------------------------------------------- Justice Brandeis

                  "What you don't know can make you lose your rights!"
                  ----------------------------------------------- Don.



                  At 12:14 AM 12/4/05 -0800, you wrote:
                  Don - you are sooo right - to expose the corruption firsthand!
                  www.crookedcolumbiacounty.com  

                  Don Schwarz <vigilespaladin@...> wrote:
                  ALL COURT PROCEEDINGS
                  should be put on local cable TV or
                  on the Internet.
                  "Sunlight is the best disinfectant"
                  Justice Brandeis.
                  "What are they ashamed of in their courts?"
                  Don Schwarz

                  At 01:35 AM 12/3/05 -0800, you wrote:
                  >If  cops lieing at trial pisses you off, what about when people tell the
                  >truth, then the judge diddles the transcript?
                  ><http://www.crookedcolumbiacounty.com>www.crookedcolumbiacounty.com
                  >
                  >Advancepum@... wrote:
                  >They lie more in the trials and  get away with it all of the time. Then
                  >you have to prove that they are lieing to get to an even point in the trial.
                  >Paul
                  >>
                  >>When they are legally permitted to lie:
                  ========================================
                • Frog Farmer
                  ... Have you ever stopped to consider what it takes to go from being one of us to one of them ? They do not become one of them until a certain REQUIRED
                  Message 8 of 9 , Dec 4, 2005
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                    On Dec 2, 2005, at 9:23 PM, Advancepum@... wrote:

                    > They lie more in the trials and  get away with it all of the time.
                    > Then you have to prove that they are lieing to get to an even point in
                    > the trial.

                    Have you ever stopped to consider what it takes to go from being one of
                    "us" to one of "them"?

                    "They" do not become one of "them" until a certain REQUIRED INITIAL
                    TASK is performed. Can you guess what that is? Can you prove anyone
                    ever performed it? Here in California I haven't been able to prove
                    that anyone is "qualified" to call themselves one of "them" (conforming
                    to the dictates of established law).

                    From what I see around me, all the "victims" are willing participants
                    in a game of charades.

                    For example, in order to even get into a "trial" (more likely, a "sham
                    proceeding"), a prospective "victim" (of "their" lies) has to go
                    through the process of "arraignment", unless of course they waive their
                    rights, which happens to be the most popular course of action around
                    these here parts.

                    Here, when a proposed victim demands an arraignment, "they" are hard
                    pressed to produce a REAL one (conforming to "their" own definition).
                    If you call "them" on the irregularities, they pretend to start over.
                    I don't like starting once, much less over again, so I like to call
                    liars on the VERY FIRST LIE they tell me (no one can reasonably be
                    expected to pay any further attention to anything a proven liar says).
                    The first one is, "I'm one of THEM". I reply that criminal
                    impersonation is a crime, and would be an arrestable offense if
                    committed in my presence, and that I have a file on all of "THEM" who
                    frequent my area, and "you" are NOT one of "THEM".
                    And I offer to prove it if requested. Nobody has yet asked me to prove
                    that they are not qualified to continue to receive their regular
                    paychecks, or had me arrested for "resisting an officer". You cannot
                    resist what is not there. Everyone has the right to resist a criminal
                    impersonator.

                    And everyone has the right to roll over and waive as many rights as
                    come to mind.

                    Lying cops are mere leaves on a much bigger tree. Chop the root and
                    leaves won't pile up.

                    And, you cannot "wait" for a democratic majority to bring justice about
                    in your lifetime. You must act independently. No one will care more
                    about YOUR rights than you do.

                    To become a victim of a lying cop in a trial requires that one waive a
                    very long string of rights. Failure to timely claim a right if it is
                    being violated amounts to a waiver. Everyone should try to refrain
                    from making as many rights waivers as they can. Unfortunately, often
                    the carrots of convenience and expedience lead the lazy to make one
                    after another waiver. And then they whine and complain later, sitting
                    in their cell, when it all could have been avoided with more effort in
                    the beginning, by not accepting that very first lie.
                  • Scott
                    TESTILYING: POLICE PERJURY AND WHAT TO DO ABOUT IT (Cite as: 67 U. Colo. L. Rev. 1037) University of Colorado Law Review Fall 1996 Reform The Police
                    Message 9 of 9 , Dec 6, 2005
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                      TESTILYING: POLICE PERJURY AND WHAT TO DO ABOUT IT
                      (Cite as: 67 U. Colo. L. Rev. 1037)

                      University of Colorado Law Review
                      Fall 1996

                      Reform
                      The Police


                      Christopher Slobogin [FNa]

                      Copyright © 1996 University of Colorado Law Review, Inc.; Christopher

                      Slobogin

                      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]

                      *1044 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." [FN29] 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.
                      [FN30]

                      The most obvious explanation for all of this lying is a desire to
                      see the guilty brought to "justice." As law enforcement officers,
                      the police do not want a person they know to be a criminal to escape
                      conviction simply because of a "technical" violation of the
                      Constitution, a procedural formality, or a trivial "exculpatory"
                      fact. As Skolnick puts it, the officer "lies because he is
                      skeptical of a system that suppresses truth in the interest of the
                      criminal." [FN31] A related reason for police dissembling is the
                      institutional pressure to produce "results," which can lead police
                      to cut corners in an effort to secure convictions. [FN32] Peer
                      practice may also play a role. One reason Skolnick says police
                      perjury is "systematic" is that "police know that other police are
                      perjuring themselves." [FN33]

                      *1045 These motivations are probably not the whole explanation,
                      however. The police officer who lies to convict a criminal is
                      generally lying under oath in a public legal forum. [FN34] Thus,
                      the lying officer is exposed to criminal charges in a proceeding
                      involving a legally trained adversary and open to indeed, usually
                      directed against those who can prove the perjury.

                      That perjury persists despite these risks can be explained by one
                      simple factor: police think they can get away with it. Police are
                      seldom made to pay for their lying. To some extent, this immunity
                      may be due to their own expertise at deceit. Many prosecutors and
                      judges believe perjury is systematic and often suspect it is
                      occurring in individual cases. But they also frequently claim that
                      they are not sure enough to do anything about it; [FN35] after all,
                      the typical situation pits a police officer, well trained on how
                      to "constitutionalize" a case, against a person charged with a
                      crime, who is decidedly less aware of the relevant law.

                      However, many observers believe that perjury is frequently
                      apparent, and that, even so, prosecutors and judges rarely take
                      action against it. [FN36] The Simpson trial is a case in point. As
                      Alan Dershowitz stated:
                      *1046 [T]he prosecutors knew that Fuhrman was a racist, a
                      perjurer, and an evidence planter before they put him on the stand.
                      An assistant district attorney, among others, warned the Simpson
                      prosecutors about Fuhrman. The prosecutors also saw his
                      psychological reports, in which he admitted his racist attitudes and
                      actions. The only thing they didn't know is that Fuhrman and they
                      would be caught by the tapes. [FN37]

                      While Dershowitz's take on the issue might be tainted by his
                      involvement in the case, the view of Scott Turow, a former
                      prosecutor, is not. As he stated in a New York Times op ed piece
                      about the prosecution's use of Fuhrman and Vannatter, "[t]he fact
                      that the district attorney's office put these officers on the
                      witness stand to tell [their] story and that the municipal judge at
                      the pretrial hearing, Kathleen Kennedy Powell, accepted it is
                      scandalous. It is also routine." [FN38]

                      Probably the most stunning evidence of prosecutorial and judicial
                      nonchalance toward police perjury is Myron Orfield's study of the
                      Chicago system. [FN39] His study is stunning because, unlike many of
                      the comments on this issue, [FN40] Orfield's findings are based on
                      the views of prosecutors and judges as well as those of defense
                      attorneys. In his survey of these three groups (which together
                      comprised twenty seven to forty one individuals, depending on the
                      question), 52% believed that at least "half of the time" the
                      prosecutor "knows or has reason to know" that police fabricate
                      evidence at suppression hearings, and 93%, including 89% of the
                      prosecutors, stated that prosecutors had such knowledge of
                      perjury "at least some of the time." [FN41] Sixty one percent,
                      including 50% of the state's attorneys, believed that prosecutors
                      know or have reason to know that police fabricate evidence in case
                      reports, and 50% of the prosecutors believed the same with respect
                      to warrants (despite the fact that many prosecutors refused to talk
                      about this latter area). [FN42] While close to half of all
                      respondents believed that prosecutors "discourage" such perjury and
                      fabrication, [FN43] a greater percentage believed that
                      they "tolerate" *1047 it, [FN44] and 15% believed that prosecutors
                      actually "encourage" it. [FN45] One former prosecutor described
                      what he called a "commonly used" technique of steering police
                      testimony by telling officers "[i] f this happens, we win. If this
                      happens, we lose." [FN46] Most amazingly, 29% of the respondents
                      did not equate lying at a suppression hearing with the crime of
                      perjury. [FN47] Although the respondents' views on judicial, as
                      opposed to prosecutorial, attitudes toward testilying were not as
                      directly plumbed in this survey, when asked whether Chicago's
                      criminal justice system effectively controls policy perjury at
                      suppression hearings, 69% of the respondents answered "no." [FN48]

                      Prosecutors put up with perjury because they need a good working
                      relationship with the police to make their cases. [FN49]
                      Additionally, at bottom, they probably agree with the police that
                      the end justifies the means. [FN50] Judicial acquiescence to
                      perjury can be explained to some extent by prosecutorial failure to
                      make the case for it. But defense attorney arguments and the
                      judge's own observations can provide plenty of evidence of
                      testilying in at least some cases. 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
                      [FN51] and, as Professor *1048 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." [FN52]

                      II. Some Proposals for Reducing Testilying

                      Several obvious ways of minimizing testilying suggest themselves.
                      One such method is to sensitize the police, through training, to the
                      immorality and dangers of perjury. Along the same lines, Skolnick
                      has suggested that, as lawyers with the same crime control
                      orientation as thepolice, prosecutors might have enough credibility
                      to get across to the police the importance of truth telling. [FN53]
                      Prosecutors can also be admonished to take their ethical duty to
                      promote justice seriously, [FN54] including providing the defense
                      with information about perjury when it comes to their attention.
                      [FN55]

                      Less obvious solutions might involve changing the structure of the
                      police force itself. For instance, if community and problem solving
                      policing lived up to its promise, law enforcement might consist more
                      of prevention than apprehension. [FN56] This shift in *1049
                      emphasis might well lessen the need to testilie by reducing both the
                      pressure to produce "activity" in the form of questionable stops and
                      arrests, and the occasions when courtroom testimony is required.
                      Alternatively, we could try to reconstruct our police forces on the
                      European model. In theory at least, continental police are less
                      adversarial in nature and thus more likely to report the facts
                      simply as they occur. [FN57]

                      Theoretically, these and other "internal" changes could have a
                      significant impact on testilying. However, institutional change in
                      the past has been frustratingly unsuccessful. [FN58] In any event,
                      describing in more detail how and whether these proposals would work
                      is beyond the scope of this paper. Instead, I will focus primarily
                      on the extent to which changes in traditional constitutional
                      doctrine particularly that having to do with the Fourth Amendment
                      can inhibit police lying. Here in Part II, I discuss a number of
                      proposals that have been advanced or alluded to by others. In Part
                      III, I will suggest a three part proposal of my own.

                      A. Expansion of the Warrant Requirement

                      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. [FN59] This proposal
                      may well reduce perjury to some extent. Relative to a post search
                      suppression hearing, police at a warrant proceeding will find the
                      manufacture of probable cause more difficult because they do not
                      know what their search will find and thus will not be able to
                      fabricate "suspicions" as effectively.

                      *1050 Nonetheless, a warrant requirement can be eviscerated in
                      several ways by police who have no qualms about lying. First,
                      whatever the validity of the pre versus post search lying
                      hypothesis, the fact remains that, as noted above, [FN60] police
                      have quite frequently managed to lie successfully during the warrant
                      application process. Second, police are not above conducting a
                      surreptitious search before going to the magistrate to ensure their
                      story will later float when they swear out a warrant affidavit.
                      [FN61] Third, and most important, police contemplating a search may
                      simply not bother to go to a magistrate, in the belief that they can
                      later cook up facts supporting a claim of exigency. Although,
                      despite its costs, [FN62] I too have argued in favor of expanding
                      the warrant requirement, [FN63] this proposal by itself will
                      probably inhibit perjury only minimally.

                      B. Informant Production

                      A second proposal, designed specifically to stymie the practice of
                      inventing snitches, is to require the police to produce their
                      informants in front of the issuing magistrate. [FN64] Again,
                      however, police who have no scruples about lying can wink at this
                      rule. They can coach their informant, or even someone else acting
                      as an informant, to lie about the information necessary for probable
                      cause. They also might simply say the informant is unavailable, in
                      the face of which a magistrate may feel helpless. The cost of the
                      proposal would be longer warrant reviews, a curtailment of the
                      worthwhile telephonic warrant system (unless informants *1051 could
                      somehow be patched in), [FN65] and the risk that informants'
                      identities will be exposed.

                      C. The Panch System

                      A third 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. [FN66]
                      Theoretically, this procedure, called the panch system in India,
                      [FN67] 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.

                      One wonders, in the Indian and French systems, where the lay
                      citizens come from (i.e., whether they are simply picked up off the
                      street or can be informants or other police minions), and how often
                      they actually testify in conflict with the police. Further, citizen
                      overview would presumably not be feasible in emergency situations,
                      which the police could manufacture. Nonetheless, the idea is worth
                      considering. In theory, at least, such a system would confront
                      lying officers with eyewitnesses who, unlike defendants, are
                      untainted by criminal charges.

                      D. Videotaping

                      If the pancha system has some merit, we could also institute its
                      technological equivalent and require that all police actions be
                      videotaped. This requirement would be relatively simple to implement
                      in the interrogation context. Indeed, several American
                      jurisdictions have already demonstrated that fact. [FN68] Video
                      *1052 taping searches, seizures, and undercover operations is more
                      difficult technologically, but not impossible, as has been
                      demonstrated in situations involving car stops, street searches, and
                      stings. [FN69]

                      While this film verite would go far toward inhibiting testilying,
                      it is expensive, subject to tampering, and prone to practical
                      devilments, like deciding when the tape must be turned on and off.
                      It also might unnecessarily endanger undercover police.
                      Furthermore, in the case of searches and seizures, and perhaps
                      undercover operations as well, it could result in a more serious
                      privacy invasion than is occasioned through mere police observation.

                      A separate question is how, assuming that technological (or human)
                      observation is feasible, the police could be forced to use it. One
                      argument, which I think plausible but which has been nascent since
                      United States v. Wade, [FN70] is that the Confrontation Clause
                      entitles a defendant to a taping of all critical investigative
                      events. As Justice Brennan argued in Wade (in connection with
                      lineup identifications), [FN71] unless the defense attorney, in
                      person or via a meaningful substitute, is allowed to observe the
                      police action in question, he is significantly hobbled in
                      reconstructing what happened; usually his only resource is his
                      client, and the judge and jury are unlikely to believe a criminal
                      suspect in a swearing match with the police. However, the
                      constitutional argument for videotaping is unlikely to be accepted
                      by the courts *1053 in light of developments since Wade. [FN72]
                      Thus, any impetus for human or technological monitoring of the
                      police will have to come from elsewhere.

                      E. Subjecting Police Witnesses to Lie Detection

                      Professor Donald Dripps has offered a proposal that he believes
                      might provide just such an impetus, relying on another technological
                      innovation the polygraph. [FN73] Dripps proposes that if, at the
                      conclusion of a suppression hearing, the court determines that its
                      outcome depends upon a credibility assessment of the police and the
                      defendant, it should be authorized to request that the parties
                      supplement the record with a polygraph examination. The judge would
                      not be bound by the results of these examinations, but in an
                      appropriate case (i.e., where the tests indicate that one party was
                      lying and the other telling the truth), he could give them
                      dispositive weight. [FN74] To the argument that polygraph
                      examinations are insufficiently reliable as indicators of veracity,
                      Dripps points out the low likelihood that two polygraph examinations
                      (i.e., the defendant's and the officer's) would be wrong. [FN75]

                      Dripps hopes that the possibility of such a polygraph battle will
                      lead the police to adopt corroboration methods such as videotaping
                      of interrogations. [FN76] Presumably they will do so, however, only
                      if the polygraph tests could be wrong. If, as Dripps argues,
                      polygraphs are accurate, then truthful officers have no incentive to
                      provide such corroboration, and of course lying officers will try to
                      manufacture it. Nonetheless, Dripps is *1054 probably right that
                      the threat of a polygraph exam will at least encourage police
                      to "tell straighter stories to the prosecution." [FN77]

                      The primary problem with Dripps's proposal is not that it won't
                      reduce police lying (I think it will), and not that it won't
                      increase attempts at corroboration (I do not know whether it will or
                      not), but that it undermines what this article has assumed to be the
                      primary reason for fighting testilying: the belief that to have an
                      effective police force and law enforcement system we need to trust
                      the police. 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. As with some of the other proposals
                      discussed above, I think Dripps's idea may be worth trying, either
                      alone or in combination with one or more of the others. But if
                      there were an appropriate way to get police to tell the truth
                      without such a trust busting "techno fix," I would prefer it.

                      III. Reducing the Pressure to Lie and to Ignore Lying

                      As this article has suggested, the pressure to lie comes at the
                      police from all sides. Peers routinely engage in deceit,
                      supervisors stress quotas, and the public wants criminals behind
                      bars without having to hear too much about how they got there. The
                      criminals themselves lie all the time, and the police naturally
                      enough would prefer to see them incarcerated rather than out on the
                      street two weeks after they are arrested. The impetus to lie is so
                      great that the police will probably always find a counter to
                      deterrence driven solutions whether it is more lying, tampering
                      with videotape, or practicing how to beat a lie detector. A
                      preferable way of dealing with testilying is to reduce the pressure
                      to commit it. Simultaneously, one could increase incentives for
                      prosecutors and judges to do something about the perjury that does
                      occur, which should also have the effect of assuring greater
                      compliance with substantive constitutional law as police realize
                      they cannot cover up their illegal actions. Below I suggest three
                      proposals designed to accomplish these goals.

                      *1055 A. Punishments and Rewards

                      Deterrence of testilying in the face of the intense pressure to
                      lie requires stiff punishment: a perjury conviction and dismissal
                      from the force. [FN78] For the reasons given above, however,
                      punishment alone, even if routinely applied, will not change police
                      behavior in this regard; indeed, it may well reinforce the "us
                      against them" attitude that encourages further deceit. As Albert
                      Quick has argued, [FN79] police need positive reinforcement for the
                      type of conduct we think is appropriate.

                      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).
                      [FN80] 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.

                      B. Flexifying Probable Cause

                      Police lying is not always a calculated assault on our Fourth,
                      Fifth, and Sixth Amendment rights. For instance, at the time they
                      engage in a search or a seizure police usually believe, in good
                      faith, that they have the goods on the suspect. But when they
                      truthfully explain themselves to a judge, they often find that their
                      suspicion, based on experience and gut feeling, was an
                      unconstitutional "hunch." Consider what an officer told Jerome
                      Skolnick, after both he and Skolnick saw a person the cop knew to be
                      an addict turn away from him with his left fist closed:
                      *1056 It's awfully hard to explain to a judge what I mean when I
                      testify that I saw a furtive movement. I'm glad you were along to
                      see this because you can see what we're up against. . . . I can
                      testify as to the character of the neighborhood, my knowledge that
                      the man was an addict and all that stuff, but what I mean is that
                      when I see a hype move the way that guy moved, I know he's trying to
                      get rid of something. [FN81]

                      The officer felt that he had enough evidence to search the man's
                      hand, but also believed, according to Skolnick rightly so, that he
                      did not have probable cause as that term is defined by the courts.
                      In such a situation, elaboration of the facts, perhaps adding that
                      the person tried to run away, or that the drug was in plain view, is
                      a natural reaction on the part of a police officer. Professor
                      Uviller calls this type of perjury an "instrumental adjustment, [a]
                      slight alteration in the facts to accommodate an unwieldy
                      constitutional constraint and obtain a just result." [FN82]

                      At least one constitutional constraint probable cause should not
                      be so unwieldy. We need to take seriously the Supreme Court's
                      injunction that probable cause is a "common sense" concept which
                      should incorporate the experience of the officer. [FN83] Contrary
                      to what courts have said, for instance, observation of a stranger to
                      the neighborhood trying to hitch a ride with his shirt draped over a
                      TV and wool gloves in his back pocket, an hour after he was seen
                      peering into two houses, should be sufficient to authorize a search;
                      [FN84] so should possession of reliable information that a person
                      sold drugs five months earlier, when combined with recent police
                      observation of people routinely leaving his house with small
                      packages. [FN85]

                      *1057 Further, as I have argued elsewhere, [FN86] probable cause
                      to search should not be conceptualized as a fixed quantity of
                      certainty but rather, as is already the case with suspicion
                      requirements associated with seizures, [FN87] should be varied
                      according to the level of intrusion involved.
                      This "proportionality" approach, which can be reconciled with both
                      the language and the history of the Fourth Amendment, [FN88] has
                      several advantages. [FN89] The most important advantage for present
                      purposes is the flexibility it gives the police. For instance,
                      under this approach and the definition of probable cause urged
                      above, the heavily criticized entry of Simpson's compound would be
                      viewed in a different light: based on their knowledge of Simpson's
                      history and the inability to reach him at his home, the police may
                      well have had enough cause to search his curtilage if not his
                      house even if the Bronco had had no blood stains on it. [FN90]

                      The danger in "flexifying" probable cause, of course, is the extra
                      discretion it gives police. But if this flexibility is coupled with
                      a stringent warrant requirement, [FN91] police discretion may not be
                      appreciably expanded. In the meantime, this flexibility will reduce
                      the occasions in which police need to make "instrumental
                      adjustments" while under oath, whether in a warrant proceeding, a
                      suppression hearing or, as discussed below, a damages suit.

                      C. Changing the Remedy

                      The final and most controversial suggestion for minimizing
                      testilying is to abolish the exclusionary rule. While the first two
                      proposals attempt to accommodate the police by trying to siphon
                      *1058 off the pressure to lie, this proposal is meant to change the
                      behavior of prosecutors and judges by reducing the urge to wink at
                      such lying. As Orfield and others have observed firsthand, for
                      people in the latter positions, "instrumental adjustments" by police
                      hoping to convict guilty people are very hard to fault, much less
                      prosecute and punish, when the result is the dismissal of worthy
                      charges. If the rule were abolished, on the other hand, prosecutors
                      would be more willing to expose and prosecute such perjury, and
                      judges more willing to conclude that it occurred, especially if, as
                      suggested above, a successful perjury prosecution meant the
                      prosecutor and judge would never have to work with the officer again.

                      Further, abolition of the exclusionary rule does not have to mean
                      the Constitution will become a dead letter. A liquidated damages
                      remedy, such as the one proposed by Professor Robert Davidow, [FN92]
                      may well provide a more than adequate substitute. Davidow would
                      authorize a government ombudsman to receive and investigate
                      complaints against the police and to assign private counsel to sue
                      the individual officer and the government in front of a judge. The
                      officer found in bad faith violation of the Constitution would be
                      liable for a certain percentage of his salary, while the government
                      would pay an equivalent sum for good faith violations. Because such
                      a system makes the officer liable for unreasonable mistakes, it is
                      clearly a better individual deterrent than the rule, which is not
                      very effective in this regard. [FN93] Because it holds the
                      department liable for reasonable mistakes of law made by its
                      officers, this type of damages action also provides a strong
                      incentive for training programs, and thus would probably not
                      diminish the institutional compliance that is the one proven effect
                      of the exclusionary rule. [FN94]

                      *1059 Of course, the fact that a damages action directly affects
                      the officer's wallet might produce even more incentive than the
                      exclusionary rule to dissemble about illegal investigative actions.
                      The three part proposal described above should nonetheless reduce
                      testilying because it will reduce the illegal activity that spawns
                      such fabrication. Positive reinforcement of truth telling should
                      produce more witnesses willing to contradict a lying officer, who
                      will thus have greater incentive to avoid any action that
                      necessitates a cover up. Construing probable cause in a flexible
                      manner will of course directly diminish the number of "illegal"
                      police actions. Finally, the more realistic threat of perjury
                      charges, brought by prosecutors who no longer fear losing their case
                      as a result, should work to reduce violations of the Constitution as
                      officers become less certain their malfeasance and subsequent lies
                      about it will remain unchallenged.

                      Conclusion

                      Police, like people generally, lie in all sorts of contexts for
                      all sorts of reasons. [FN95] This article has focused on police
                      lying designed to convict individuals the police think are guilty.
                      Strong measures are needed to reduce the powerful incentives to
                      practice such testilying and the reluctance of prosecutors and
                      judges to do anything about it. Among them might be the adoption of
                      rewards for truth telling, the redefinition of probable cause, and
                      the elimination of the exclusionary rule and its insidious effect on
                      the resolve of legal actors to implement the commands of the
                      Constitution.

                      Ultimately, however, the various proposals set forth in this
                      article are merely suggestive, meant to stimulate debate about how
                      to curtail testilying at suppression hearings. [FN96] There is
                      *1060 strong evidence to suggest that police in many jurisdictions
                      routinely engage in this kind of deceit, and that prosecutors and
                      judges are sometimes accomplices to it. Even if it turns out that
                      this evidence exaggerates the problem, [FN97] the fact remains that,
                      because of the O.J. Simpson trial and similar events, more people
                      than ever before believe it exists. To restore trust in the police
                      and the criminal justice system, we need to take meaningful steps
                      against testilying now.

                      FNa. Professor of Law & Alumni Research Scholar, University of
                      Florida College of Law.

                      FN1. For one account of this series of events, see Jeffrey Toobin, A
                      Horrible Human Event, New Yorker, Oct. 23, 1995, at 40, 41 42.

                      FN2. Vannatter also neglected to mention that much of the basis for
                      his assertion that there was probable cause came from a warrantless
                      entry of O.J.'s compound, the legality of which had not yet been
                      litigated. See infra text accompanying notes 4 5.

                      FN3. For a description of these misrepresentations and how Judge Ito
                      reacted to them, see Wayne R. LaFave, O.J. Simpson Case
                      Commentaries: Challenging Probable Cause for Search Warrants, 1994
                      WL 530235, Sept. 30, 1994, available in WESTLAW, O.J. Comment
                      database (on file with the University of Colorado Law Review).

                      FN4. Kenneth B. Noble, Ruling Aids Prosecution of Simpson, N.Y.
                      Times, Sept. 20, 1994, at A16.

                      FN5. See, e.g., Wayne R. LaFave, O.J. Simpson Case Commentaries:
                      Over the Wall: A New Theory Regarding Entry of the Simpson
                      Compound, 1994 WL 562135, at 1, Oct. 15, 1994, available in WESTLAW,
                      O.J. Comment database (on file with the University of Colorado Law
                      Review) ("The LaFave poll (admittedly unscientific and consisting of
                      nothing more than the random reactions of friends, colleagues and
                      students with whom I have discussed the Simpson case) indicates that
                      most people have responded to [these claims] with a fair degree of
                      incredulity.").

                      FN6. See Toobin, supra note 1, at 41 42.

                      FN7. The idea of trust as a social good is presented in Sissela Bok,
                      Lying: Moral Choice in Public and Private Life 26 27 (1978) ("[T]
                      rust is a social good to be protected just as much as the air we
                      breathe or the water we drink. When it is damaged, the community as
                      a whole suffers; and when it is destroyed, societies falter and
                      collapse.").

                      FN8. Joe Sexton, Jurors Question Honesty of Police, N.Y. Times,
                      Sept. 25, 1995, at B3 (quoting Michael F. Vecchione, Brooklyn
                      District Attorney Charles J. Hynes's deputy in charge of trials).
                      Consider also these words:
                      [I]t has to be recognized that, while there is no reason to suppose
                      that policemen as individuals are any less fallible than other
                      members of society, people are often shocked and outraged when
                      policemen are exposed violating the law. The reason is simple.
                      Their deviance elicits a special feeling of betrayal. In a sense,
                      they are doubly condemned; that is, not just for the infringement
                      itself but even more for the breach of trust involved. Something
                      extra is involved when public officials in general and policemen in
                      particular deviate from accepted norms: "That something more is the
                      violation of a fiduciary relationship, the corruption of a public
                      trust, of public virtue."
                      Maurice Punch, Conduct Unbecoming 8 (1985) (quoting Albert J. Reiss,
                      Jr., Foreword to The Literature of Police Corruption ix x (Anthony
                      E. Simpson ed., 1977)).

                      FN9. See infra text accompanying notes 35 52.

                      FN10. See Mapp v. Ohio, 367 U.S. 643 (1961) (requiring exclusion of
                      evidence seized in violation of the Fourth Amendment); see
                      also Miranda v. Arizona, 384 U.S. 436 (1966) (requiring exclusion of
                      evidence seized in violation of the Miranda warnings requirement).

                      FN11. 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."').

                      FN12. 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."); see also David Wolchover,
                      Police Perjury in London, 136 New L.J. 181, 183 (1986) (estimating
                      that police officers lie in 3 out of 10 trials).

                      FN13. Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater
                      Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U.
                      Colo. L. Rev. 75, 107 (1992) (survey of prosecutors, defense
                      attorneys, and judges indicates a belief that, on average, perjury
                      occurs 20% of the time, with defense attorneys estimating it occurs
                      53% of the time in connection with Fourth Amendment issues; only 8%
                      believe that police never, or almost never, lie in court); see also
                      Fred Cohen, Police Perjury: An Interview with Martin Garbus, 8
                      Crim. L. Bull. 363, 367 (1972) ("[A]mong all the lawyers that I
                      know whether they are into defense work or prosecution not one of
                      them will argue that systematic police perjury does not exist. We
                      may differ on its extent, its impact ... but no trial lawyer that I
                      know will argue that police perjury is nonexistent or sporadic.");
                      N. G. Kittel, Police Perjury: Criminal Defense Attorneys'
                      Perspective, 11 Am. J. Crim. Just. 11, 16 (1986) (57% of 277
                      attorneys believe police perjury takes place very often or often).

                      FN14. See Sarah Barlow, Patterns of Arrests for Misdemeanor
                      Narcotics Possession: Manhattan Police Practices 1960 62, 4 Crim.
                      L. Bull. 549, 549 50 (1968) (presenting data showing that "dropsy
                      testimony" i.e., police testimony that an arrestee had dropped
                      drugs as the police came upon them increased after Mapp v. Ohio
                      imposed the exclusionary rule on state police, indicating that
                      the "police are lying about the circumstances of such arrests so
                      that the contraband which they have seized illegally will be
                      admissible as evidence.").

                      FN15. Alan M. Dershowitz, The Best Defense xxi xxii (1983) ("Rule
                      IV: Almost all police lie about whether they violated the
                      Constitution in order to convict guilty defendants.").

                      FN16. Orfield, supra note 13, at 83 ("Respondents, including
                      prosecutors, estimate that police commit perjury between 20% and 50%
                      of the time they testify on Fourth Amendment issues."). It should
                      also be noted that many of these respondents did not consider lying
                      at a suppression hearing perjury, infra text accompanying note 47,
                      which would have the effect of deflating these percentages.

                      FN17. Jerome H. Skolnick, Deception by Police, Crim. Just. Ethics,
                      Summer/Fall 1982, at 40, 42.

                      FN18. Scott Turow, Simpson Prosecutors Pay for their Blunders, N.Y.
                      Times, Oct. 4, 1995, at A21 (Turow was a prosecutor for several
                      years.).

                      FN19. Younger, supra note 12, at 596 (Younger was a prosecutor and a
                      judge.).

                      FN20. H. Richard Uviller, Tempered Zeal: A Columbia Law Professor's
                      Year on the Streets with the New York City Police 116 (1988)
                      (Uviller was a prosecutor for 14 years.).

                      FN21. See supra note 11 and accompanying text.

                      FN22. See id.; see also Robert Daley, The Prince of the City 73
                      (1978) (describing perjury that "detectives ... committed all the
                      time in the interest of putting bad people in jail"); Myron R.
                      Orfield, The Exclusionary Rule and Deterrence: An Empirical Study
                      of Chicago Narcotics Officers, 54 Chi. L. Rev. 1016, at 1049 50
                      (1987) (Seventy six percent of police surveyed believe police shade
                      the facts regarding probable cause, 56% believed perjury was
                      infrequent and 19% believe it was reasonably common.).

                      FN23. Mollen Report, supra note 11, at 38.

                      FN24. See also Jerome H. Skolnick, Justice Without Trial 212 19 (2d
                      ed. 1975).

                      FN25. Uviller, supra note 20, at 116.

                      FN26. "[N]o Warrants shall issue, but upon probable cause, supported
                      by Oath or affirmation ...." U.S. Const. amend. IV.

                      FN27. Jonathan Rubinstein, City Police 386 88 (1973) (describing the
                      preparation of false search warrants as routine, with supervisors
                      often selecting the officers most skilled in perjury as the ones
                      to seek the warrant); see also Orfield, supra note 13, at 102 08
                      (describing improper use of "boilerplate" language in warrant
                      applications). In Albright v. Oliver, 114 S. Ct. 807 (1994), the
                      complaint alleged that a detective repeatedly used an informant (on
                      50 occasions) despite the fact that on each occasion her information
                      turned out to be false and charges were dismissed. Id. at 823 n.3
                      (Stevens, J., dissenting).

                      FN28. One of the more extreme examples (one hopes) is described in
                      Commonwealth v. Lewin, 542 N.E.2d 275 (Mass. 1989), in which the
                      court concluded that in all likelihood an informant named "John,"
                      who supplied the basis for 31 search warrants over a 10 month
                      period, and for many others over a five year period, never existed.
                      Id. at 284. Many have speculated that the "informer" involved in
                      Spinelli v. United States, 393 U.S. 410 (1969), did not exist. See,
                      e.g., Joseph D. Grano, A Dilemma for Defense Counsel: Spinelli
                      Harris Search Warrants and the Possibility of Police Perjury, 1971
                      Law F. 405, 427, 456 57.

                      FN29. Mollen Report, supra note 11, at 38.

                      FN30. Stanley Z. Fisher, "Just the Facts, Ma'am": Lying and the
                      Omissionof Exculpatory Evidence in Police Reports, 28 N. Eng.
                      L. Rev. 1, 36 38 (1993).

                      FN31. Skolnick, supra note 17, at 43. See also Carl B. Klockars,
                      Blue Lies and Police Placebos, 27 Amer. Behav. Sci. 529, 540 (1984)
                      (Police lie at suppression hearings because they see search and
                      seizure rules, and other evidentiary rules, as procedural rules "the
                      violation of which does not affect a perpetrator's factual guilt.").

                      FN32. Indeed, significant evidence suggests that police supervisors,
                      driven by the same crime control and quota pressures that drive
                      field officers, actively encourage testilying. See Mollen Report,
                      supra note 11, at 40 41 (describing how supervisors train officers
                      in how to commit perjury); Allan N. Kornblum, The Moral Hazards:
                      Police Strategies for Honesty and Ethical Behavior 80 (1976)
                      (describing New York City police practice of "flaking," or planting
                      evidence on suspects to meet "norms of production").

                      FN33. Skolnick, supra note 17, at 42.

                      FN34. Although police reports are not testimony, in some
                      jurisdictions they are written under oath. In others, falsification
                      of a report can result in statutory penalties. See Fisher, supra
                      note 30, at 9 n.36.

                      FN35. See Uviller, supra note 20, at 111 (asserting that perjury "is
                      extremely elusive, almost impossible to identify with certainty in a
                      particular instance"); Fisher, supra note 30, at 10 n.40 (stating
                      that Uviller's experience mirrors his own).

                      FN36. 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, P hila. I nq.,
                      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."); Younger,
                      supra note 12, at 596 ("[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.").

                      FN37. Alan Dershowitz, Police Perjury Destroyed the Simpson
                      Prosecution, Buff. News, Oct. 7, 1995, at 3B.

                      FN38. Turow, supra note 18, at A21.

                      FN39. Orfield, supra note 13.

                      FN40. The first three observers cited in supra note 36 are defense
                      attorneys.

                      FN41. Orfield, supra note 13, at 109.

                      FN42. Id. at 110.

                      FN43. Id. at 112.

                      FN44. As one state's attorney stated: "We view our role as neutral.
                      We don't try to influence perjury one way or another." Id. at 111.

                      FN45. Id. at 110 11. In what seems to be a contradiction, Orfield
                      reports that 61% believed prosecutors tolerate perjury, while 48%
                      believe prosecutors discourage it.

                      FN46. Id. at 110.

                      FN47. Id. at 112. Interestingly, of the 11 respondents who answered
                      this way, two were judges, three were state's attorneys, and six
                      were public defenders. Id. at 112 n.172. Prosecutors explained
                      their views in this regard by calling the perjury "fudging" rather
                      than lying, or by defining perjury as lying about guilt or
                      innocence. Id. at 112 13.

                      FN48. Id. at 114. In another part of the study, reported
                      separately, Orfield found that 86% of police officers surveyed
                      believed it "unusual but not rare" for judges to disbelieve police
                      testimony. Orfield, supra note 22, at 1049.

                      FN49. 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 also sources cited supra note 36.

                      FN50. Orfield, supra note 13, at 113 ("Many prosecutors believe
                      that 'real' perjury only concerns questions of guilt or innocence,
                      not questions of probable cause.").

                      FN51. Id. at 121 (finding that 70% of respondents believe that
                      judges sometimes fail to suppress evidence when the law requires
                      suppression "because [the judge] believes it is unjust to suppress
                      the evidence given the circumstances of the case before him").

                      FN52. Morgan Cloud, The Dirty Little Secret, 43 Emory L.J. 1311,
                      1323 24 (1994).

                      FN53. Skolnick, supra note 24, at 203.
                      The prosecutor need not be successful in making the policeman
                      approve of the strictures of due process of law, which he typically
                      does not admire himself. By accepting their legitimacy, however, he
                      demonstrates to the policeman that it is at once possible to
                      disagree with the rules of the game as they are laid down, and
                      at the same time to carry out the enforcement of substantive
                      criminal law ....
                      Id.

                      FN54. The American Bar Association's Model Rules of Professional
                      Conduct state that the "prosecutor in a criminal case shall ... make
                      timely disclosure to the defense of all evidence or information
                      known to the prosecutor that tends to negate the guilt of the
                      accused or mitigates the offense." Model Rules of Professional
                      Conduct Rule 3.8(d) (1983). The ABA's Criminal Justice Standards on
                      the Prosecution Function provide, inter alia, that "[t]he duty of
                      the prosecutor is to seek justice, not merely to convict," Standards
                      for Criminal Justice s 3 1.1 (2d ed. 1979); that the prosecutor "has
                      an affirmative responsibility to investigate suspected illegal
                      activity when it is not adequately dealt with by other agencies,"
                      id. s 3 3.1(a); that the prosecutor must not "knowingly ... use
                      illegal means to obtain evidence or to employ or instruct or
                      encourage others to use such means," id. s 3 3.1(b); and that a
                      prosecutor shall not "intentionally ... avoid pursuit of evidence
                      because he or she believes it will damage the prosecution's case or
                      aid the accused," id. s 3 3.11(c).

                      FN55. See Model Rules of Professional Conduct, supra note 54, Rule
                      3.8(d).

                      FN56. See generally Jerome H. Skolnick & James J. Fyfe, Above the
                      Law: Police and the Excessive Use of Force 237 66 (1993) (stating
                      that problem oriented policing and community oriented
                      policing "stand in opposition to incident driven policing," id. at
                      257).

                      FN57. See generally John H. Langbein & Lloyd L. Weinreb, Continental
                      Criminal Procedure: "Myth" and Reality, 87 Yale L.J. 1549, 1552 54,
                      1562 63 & n.51 (German and French police are trained as "judicial
                      officers" and required to report exculpatory as well as inculpatory
                      information.).

                      FN58. See generally Symposium, Police Corruption, Municipal
                      Corruption: Cures at What Cost?, 40 N.Y.L. Sch. L. Rev. 1 (1995).
                      Several of the commentators in this symposium issue remark on the
                      fact that police corruption scandals erupt at 20 year intervals
                      despite institutional reform. See, e.g., id. at 6, 45, 55 (three
                      authors, a judge, an ex police commissioner, and an administrator,
                      making this point).

                      FN59. Cloud, supra note 52, at 1344 48.

                      FN60. See supra notes 26 28 and accompanying text.

                      FN61. See Skolnick, supra note 24, at 144 ("The practice of making
                      an unlawful exploratory search of the room of a suspected criminal
                      is, so far as I could tell on several occasions, accepted by both
                      the Westville police and the state police.").

                      FN62. "The vast majority of searches are conducted without a
                      warrant ...." Richard Van Duizend et al., The Search Warrant
                      Process: Preconceptions, Perceptions, Practices 19 (1985). Any
                      significant increase in that percentage could burden judges, with a
                      concomitant greater potential for rubber stamping of applications.

                      FN63. Christopher Slobogin, The World Without a Fourth Amendment, 39
                      UCLA L. Rev. 1, 29 38 (1991).

                      FN64. Some courts have endorsed this approach. See, e.g., United
                      States v. Manley, 632 F.2d 978 (2d Cir. 1980); People v. Darden, 313
                      N.E.2d 49 (1974).

                      FN65. Telephonic warrants, which allow police to obtain a warrant
                      while still on the street in a fraction of the time normally
                      required to obtain a warrant, Van Duizend et al., supra note 62, at
                      85 87, are a crucial aspect of most proposals for expanding the
                      warrant requirement. See also Craig M. Bradley, Two Models of the
                      Fourth Amendment, 83 Mich. L. Rev. 1468, 1491 98 (1985); Cloud,
                      supra note 52, at 1346; Slobogin, supra note 63, at 32.

                      FN66. For a description of the French procedure, see Richard S.
                      Frase, Comparative Criminal Justice As a Guide to American Law
                      Reform: How Do the French Do It, How Can We Find Out, and Why
                      Should We Care?, 78 Cal. L. Rev. 539, 580 (1990). For a description
                      of the Indian system, see Susan C. Lushing, Comparative Criminal
                      Justice Search and Seizure, Interrogation, and Identification of
                      Suspects in India: A Research Note, 10 J. Crim. Just. 239, 240 42
                      (1982).

                      FN67. See Lushing, supra note 66, at 242.

                      FN68. See William A. Geller et al., A Report to the National
                      Institute of Justice, Police Videotaping of Suspect Interrogations
                      and Confessions: A Preliminary Examination of Issues and Practices
                      54 tbl. 1 (1992) (As of 1991, approximately one sixth of all police
                      and sheriffs' departments videotaped confessions, although in many
                      jurisdictions it was at the interrogating detective's discretion.).

                      FN69. See Jeff Collins, New Technology Can Turn Officers into
                      Walking Lenses, Recording Contacts for Their and the Public's
                      Safety, Orange County Reg. May 8, 1995, at B1; Lan Nguyen, Cameras
                      Roll with Patrol Cars: Video Rides Shotgun on Arlington Streets,
                      Wash. Post, July 6, 1995, at B1 (describing video cameras that
                      attach to the windshield and contain tape that cannot be erased).
                      See generally Gary T. Marx, Undercover: Police Surveillance in
                      America 55 56 (1988) (describing use of videotape in undercover
                      operations).

                      FN70. 388 U.S. 218 (1967).

                      FN71. Id. at 235 ("Insofar as the accused's conviction may rest on a
                      courtroom identification in fact the fruit of a suspect pretrial
                      identification which the accused is helpless to subject to effective
                      scrutiny at trial, the accused is deprived of that right of cross
                      examination which is an essential safeguard to his right to confront
                      the witnesses against him.").

                      FN72. In United States v. Ash, 413 U.S. 300 (1973), the Supreme
                      Court appeared to reject the "critical stage" analysis of Wade and
                      adopted a "trial like confrontation" analysis, which contemplates
                      application of the Sixth Amendment only to those stages of the
                      criminal process in which the "intricacies of the law and the
                      advocacy of the public prosecutor are involved." Id. at 309; see
                      also Charles H. Whitebread & Christopher Slobogin, Criminal
                      Procedure: An Analysis of Cases and Concepts s 31.03(a) (1993).

                      FN73. Donald A. Dripps, Police, Plus Perjury, Equals Polygraphy (in
                      press, manuscript on file with author).

                      FN74. Id. at 1.

                      FN75. Id. at 27.

                      FN76. Id. at 35. ("[A] rule of admissibility [of polygraph results]
                      would create incentives for the police to actively prevent, rather
                      than actively encourage, swearing contests.").

                      FN77. Id. at 28.

                      FN78. One could add to these two punishments liability in damages
                      but, at the federal level at least, this would require reversal of
                      Briscoe v. LaHue, 460 U.S. 325 (1983).

                      FN79. Albert T. Quick, Attitudinal Aspects of Police Compliance with
                      Procedural Due Process, 6 Am. J. Crim. L. 25, 48 54 (1978)
                      (describing various methods of reinforcing police conformance with
                      due process norms (e.g., promotions, bonuses, praise), an approach
                      that is claimed to change attitudes and thus help establish the
                      desired patterns of behavior).

                      FN80. Cf. Punch, supra note 8, at 155 (describing how
                      police "operate by a code of silence which dictates that you do
                      not 'rat on your mates"').

                      FN81. Skolnick, supra note 24, at 216.

                      FN82. Uviller, supra note 20, at 115 16.

                      FN83. See, e.g., United States v. Cortez, 449 U.S. 411, 418 (1981)
                      (Probable cause "does not deal with hard certainties, but with
                      probabilities [and] common sense conclusions about human
                      behavior .... [T]he evidence thus collected must be seen and weighed
                      not in terms of library analysis by scholars, but as understood by
                      those versed in the field of law enforcement."); Illinois v. Gates,
                      462 U.S. 213, 232 (1983) (after quoting the above passage in Cortez,
                      stating that "probable cause is a fluid concept turning on the
                      assessment of probabilities in particular factual contexts
                      not readily, or even usefully, reduced to a neat set of legal
                      rules").

                      FN84. People v. Quintero, 657 P.2d 948 (Colo. 1983) (no probable
                      cause on these facts).

                      FN85. These are essentially the facts of United States v. Leon, 468
                      U.S. 897 (1984), in which the suppression hearing judge ruled that
                      probable cause did not exist. Id. at 903 n.2.

                      FN86. Slobogin, supra note 63, at 68 75.

                      FN87. Cf. Michigan v. Sitz, 496 U.S. 444 (1990) (minimal intrusion
                      of state sobriety checkpoint program held reasonable when balanced
                      against substantial state interest in highway safety); Terry v.
                      Ohio, 392 U.S. 1 (1968) (pat down of outer clothing to search for
                      weapons justified by circumstances).

                      FN88. Slobogin, supra note 63, at 75 78 (noting that the
                      term "probable cause" had no clear meaning as an historical matter
                      and thus can constitutionally be defined as "that cause which makes
                      probable the reasonableness of the intrusion occasioned by a given
                      search or seizure").

                      FN89. For example, it allows the amendment greater scope than
                      current law because it avoids imposing a "more likely than not"
                      certainty requirement every time a police action is labeled a
                      search. Id. at 77.

                      FN90. However, I would have required a warrant in this situation
                      given the time elapsed between the initial investigation of the
                      murder scene and the entry of the compound. See id. at 32; Cloud,
                      supra note 52, at 1346 47.

                      FN91. See Slobogin, supra note 63, at 29 33, 75.

                      FN92. Robert P. Davidow, Criminal Procedure Ombudsman Revisited, 73
                      J. Crim. L. & Criminology 939 (1982).

                      FN93. See, e.g., Dallin H. Oaks, Studying the Exclusionary Rule in
                      Search and Seizure, 37 U. Chi. L. Rev. 665, 720 31 (1970) (pointing
                      out, inter alia, that the primary effect of the rule is visited on
                      the prosecutor rather than the police officer). Indeed, a damages
                      remedy could over deter. See Milton A. Loewenthal, Evaluating the
                      Exclusionary Rule in Search and Seizure, 49 UMKC L. Rev. 24, 31 32
                      (1980). The good faith exception in the Davidow proposal should
                      minimize that problem. Furthermore, of course, the latter remedy
                      avoids the damage to the credibility of the criminal justice system
                      caused when exclusion allows a criminal to be released on
                      a "technicality."

                      FN94. See Yale Kamisar, Does (Did) (Should) the Exclusionary Rule
                      Rest on a "Principled Basis" Rather Than an "Empirical
                      Proposition"?, 16 Creighton L. Rev. 565, 590 91 (1983). An
                      ombudsman system could also facilitate detection of patterns of
                      misbehavior and particular miscreant officers, something which is
                      not easily accomplished under an exclusionary rule regime relying on
                      individual attorneys.

                      FN95. For a treatment of other types of police lies, see Christopher
                      Slobogin, Investigative Lies by the Police (in preparation). See
                      also Tom Barker & David Carter, Fluffing Up the Evidence and
                      Covering Your Ass: Some Conceptual Notes on Police Lying, 11
                      Deviant Behav. 61, 62 67 (1990).

                      FN96. Cf. Kevin R. Reitz, Testilying As a Problem of Crime Control:
                      A Reply to Professor Slobogin, 67 U. Colo. L. Rev. 1061 (1996). My
                      only quibble with Professor Reitz's criticisms of my proposals is
                      that I think he underestimates the impact of flexifying probable
                      cause and overestimates the impact of substituting a damages remedy
                      for the exclusionary rule.

                      FN97. See id. at 1062 65.

                      END OF DOCUMENT
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