(Cite as: 67 U. Colo. L. Rev. 1037)
University of Colorado Law Review
Fall 1996
Reform
The
Police
*1037
TESTILYING: POLICE PERJURY AND WHAT TO DO ABOUT IT
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