Is it okay for cops to lie?

Is it okay for cops to lie?  Many years ago when Bill Bratton was the head of the NYPD he used the phrase “testilying” to describe when officers bend the truth when testifying.  We’ve come a long way since then.  Today most Chiefs and Sheriffs and their agencies take the stand that “if an officer lies, he dies.”  Lying in any context is no longer acceptable and normally results in termination.  Even if lying or “bending the truth” is just to get the bad guys off the streets under the misguided concept of “noble cause.”  Lying is lying!

But what has caused this newfound philosophy in law enforcement?  The guiding U.S. Supreme Court cases of Brady and Giglio are old cases decided in 1963 and 1973 respectively.  These cases said that any prosecutor had to turn over “exculpatory evidence” and “credibility evidence” to the criminal defense attorney.  In other words, any evidence that might help the defendant or caste doubt on the credibility of any witness the prosecution uses during the trial had to be disclosed if the prosecutor knew about it.

These cases, however, had minimal effect on law enforcement until the mid 1990s.  What changed?  Really there were five things.

First, in 1995, the Supreme Court decided the case of Kyles v. Whitley.  This case changed the requirement on the prosecutor.  In the prior cases the prosecutor was held accountable if s/he knew of the exculpatory evidence.  Kyles now required the prosecutor to make an affirmative search for this evidence and turn it over to the defense.  As a consequence it began with Federal prosecutors who now requested “credibility/Giglio” material on any of our officers who were scheduled to be witnesses.  Today most prosecutors make this request.

During this same period of time the Innocence Project got started.  My friends Barry Scheck and Peter Neufeld attacked the prosecution tactics used in capital cases such as homicides and rapes.  Most of these cases used DNA and other evidence that was hidden from the criminal defense by prosecutors and police.  The cases pretty much say the obligation is on the State and that means both the prosecutor and the police.

A third issue was the development of what has been termed “Brady Bad Boy” lists.  Prosecutors have put officers on this list and generally don’t present cases when they are confronted with an officer who has a “credibility” problem.  Most of the time it is founded on evidence that the officer has been disciplined for lying or false reporting.  If the prosecutor has this list, so does the public defender and the criminal defense attorney.  If an officer can’t testify in court, what good is s/he?

While law enforcement has adopted a very strict stance on lying, the courts and arbitrators aren’t as firm.  It seems that courts, arbitrators and civil service bodies consider some as “big lies” and others as “little lies.”  Big lies are those associated with an officer’s testimonial record; arrest reports, probable cause affidavits for warrants, and court testimony.  Little lies concern false statements on agency procedural matters such as sick usage, damage to police vehicles, or failure to follow some internal policy.  Of course this presents an agency with the problem of what to do with the officer who it has declared as a liar, has been terminated, and yet now has been returned to the agency by some decision of these external bodies.

The fifth issue has surfaced only in the last few years.  Officers are now being criminally prosecuted for false reports or testimony.  In the past the prosecutor might simply dismiss the case and let the agency deal with the misconduct administratively.  A lot of this outcome has surfaced with the proliferation of surveillance cameras.  These images may refute the version officers’ use official reports or during testimony.

Now what does this mean for law enforcement?  My next blog report will discuss what we must do and how to develop reasonable policy to cover this issue.