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Re: [tips_and_tricks] Fwd: Police Perjury - cops call it "testilying"

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  • 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 1 of 9 , Dec 2, 2005
      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 2 of 9 , Dec 3, 2005
        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 3 of 9 , Dec 3, 2005
          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 4 of 9 , Dec 3, 2005
            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 5 of 9 , Dec 4, 2005
              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 6 of 9 , Dec 4, 2005


                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 7 of 9 , Dec 4, 2005
                  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 8 of 9 , Dec 6, 2005
                    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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