Re: [tips_and_tricks] Fwd: Police Perjury - cops call it "testilying"
- 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.Have you ever stopped to consider what it takes to go from being one of
> Then you have to prove that they are lieing to get to an even point in
> the trial.
"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
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.
- TESTILYING: POLICE PERJURY AND WHAT TO DO ABOUT IT
(Cite as: 67 U. Colo. L. Rev. 1037)
University of Colorado Law Review
Christopher Slobogin [FNa]
Copyright © 1996 University of Colorado Law Review, Inc.; Christopher
O.J. Simpson's trial for the murders of Nicole Brown Simpson
and Ronald Goldman provided the nation with at least two pristine
examples of police perjury. First, there was the exposure of
Detective Marc Fuhrman as a liar. While under oath at trial the
detective firmly asserted, in response to F. Lee Bailey's questions,
that he had not used the word "nigger" in the past decade. The
McKinny tapes and assorted other witnesses made clear this statement
was an untruth. That proof of perjury, together with the defense's
innuendo that Fuhrman had planted a glove smeared with Nicole's
blood on Simpson's property, severely damaged the prosecution's
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
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
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
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
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
*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.
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.
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.
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
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
*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.
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
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
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
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
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
FN19. Younger, supra note 12, at 596 (Younger was a prosecutor and a
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
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
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 ....
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
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
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
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
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
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
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
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
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