Testilying

January 30, 2009 1:14 AM

Cops regularly perjure themselves - Blue Lies.Though few officers will confess to lying -- after all, it's a crime -- work by researchers and a 1990s commission appointed to examine police corruption shows there's a tacit agreement among many officers that lying about how evidence is seized keeps criminals off the street.... Criminal-justice researchers say it's difficult to quantify how often perjury is being committed. According to a 1992 survey, prosecutors, defense attorneys and judges in Chicago said they thought that, on average, perjury by police occurs 20% of the time in which defendants claim evidence was illegally seized. "It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers," though it's difficult to detect in specific cases, said Alex Kozinski, a federal appeals-court judge, in the 1990s.

To stem the problem, some criminal-justice researchers and academic experts have called for doing polygraphs on officers who take the stand or requiring officers to tape their searches.

A Supreme Court ruling this month, however, suggests that a simpler, though controversial, solution may be to weaken a longstanding part of U.S. law, known as the exclusionary rule. The 5-4 ruling in Herring v. U.S. that evidence obtained from certain unlawful arrests may nevertheless be used against a criminal defendant could indicate the U.S. is inching closer to a system in which officers might not be tempted to lie to prevent evidence from being thrown out.

Before Mapp, the policeman typically testified that he
stopped the defendant for little or no reason, searched him,
and found narcotics on his person. This had the ring of
truth. It was an illegal search . . . but the evidence was
admissible . . . . Since it made no difference, the policeman
testified truthfully. After the decision in Mapp, it made a
great deal of difference. For the first few months, New
York policemen continued to tell the truth about the
circumstances of their searches, with the result that the
evidence was suppressed. Then the police made the great
discovery that if the defendant drops the narcotics on the
ground, after which the policeman arrests him, then the
search is reasonable and the evidence is admissible. Spend
a few hours in the New York City Criminal Court
nowadays, and you will hear case after case in which a
policeman testifies that the defendant dropped the
narcotics on the ground, whereupon the policeman arrested
him.

posted by caddis (75 comments total)

Wait a minute... the cops lie about breaking the law, so the solution is to change the law?

I was hoping that shit would stop after the 20th.
posted by ryanrs at 1:36 AM on January 30, 2009 [3 favorites]

> I was hoping that shit would stop after the 20th.

Yeah, I figured Obama would have Solved Everything by now, too.
posted by you just lost the game at 2:11 AM on January 30, 2009

i know insane it sounds but..... perhaps we need a true system of oversight focused on the appointed guardians of society (i.e. the police). sousveillance is a dandy start.....
posted by vantam at 2:19 AM on January 30, 2009

This reminds me of High Priest of Harmful Matter, Jello Biafra's spoken word album on his obscenity trial. He described jury selection, and personally witnessed an effective way of getting out of jury duty:

So the prosecuting attorney asks this guy, "Is there any reason why you wouldn't be able to review the facts presented at the trial in an objective manner?"
And the guy responds, "Yeah. All cops are liars."
Judge: "OUT!"

posted by Marisa Stole the Precious Thing at 2:23 AM on January 30, 2009 [8 favorites]

The 5-4 ruling in Herring v. U.S. that evidence obtained from certain unlawful arrests may nevertheless be used against a criminal defendant could indicate the U.S. is inching closer to a system in which officers might not be tempted to lie to prevent evidence from being thrown out.

We don't want cops eager for convictions to break the law by lying on the stand. So we'll make it easier for them to get convictions by breaking the law when they arrest people.

This is the plan?
posted by Joe Beese at 2:25 AM on January 30, 2009 [6 favorites]

This is the plan?

You're not looking at this the right way. This is more a "pick your battles" situation. Like when a little kid wants to watch cartoons AND have ice cream for breakfast. You let him watch the cartoons so he won't wail as hard about not getting ice cream for breakfast. Only in this case, substitute "watch cartoons" with "ignore the Constitution and the rule of law". See? It's not so bad.
posted by Marisa Stole the Precious Thing at 2:36 AM on January 30, 2009

One would imagine the defendants are also tempted to "testilie" about their possession of drugs even when they did in fact possess them. Applying the same logic...
posted by jaduncan at 2:40 AM on January 30, 2009 [1 favorite]

And naturally cops should be allowed to break the law since the criminals do.
posted by ryanrs at 3:08 AM on January 30, 2009

At first, I thought the mandatory videotaping of searches is the way to go. In the case of motor patrol officers, surely we have the technology to have a camera in the unit turn on when the cop gets out and track him until he gets back in. Evidence obtained out of sight of the camera would normally be inadmissable.

Then I thought about it some more. If the camera sees the cop bending down to apparently pick something up off the ground, would it be able to show whether the suspect dropped it, or the cop did?
posted by Kirth Gerson at 3:47 AM on January 30, 2009

This reminds me of High Priest of Harmful Matter, Jello Biafra's spoken word album on his obscenity trial. He described jury selection, and personally witnessed an effective way of getting out of jury duty:
So the prosecuting attorney asks this guy, "Is there any reason why you wouldn't be able to review the facts presented at the trial in an objective manner?"
And the guy responds, "Yeah. All cops are liars."
Judge: "OUT!"

posted by Marisa Stole the Precious Thing at 2:23 AM

Ha! I did almost the same thing during jury selection once! I wasn't really trying to get out of serving, but I said that I would have difficulty in trusting an officer's testimony. I also said that I could be an impartial juror, though. So this really got the judge kinda pissed. He took me back to his chambers (along with the lawyers) and forced me to choose one way or the other, after which I had to admit that I could not be an impartial juror. Jerk.
posted by orme at 4:01 AM on January 30, 2009 [2 favorites]

When lying on the stand is outlawed, only outlaws will lie on the stand.
posted by RussHy at 4:22 AM on January 30, 2009 [3 favorites]

I have a relative who was a cop. He was in his second year as an officer. He dropped a drunk off outside of town instead of taking him home or downtown to the drunk tank. (Something he was told was standard operating procedure by the more veteran officers.) At shift's end his superior asked what he had done and he told him he drove the drunk home. The next day he was asked again, because the drunk guy remembered him, and he told his superior the truth.

He was thrown off the force, and dropped like a hot brick by the police union for lying to his superior. He managed to avoid a kidnapping charge and civil lawsuit though. If he had not lied when originally asked, his superior and the police union would have stood by him.

Cops are liars. It's built into the job. If a cop gets caught in a lie it puts into question every testimony they have ever given. So they lie when they can, especially when there are no witnesses. They know the system better then most citizens and will use it to their advantage as often as possible. This same relative, while still an officer had said directly to me, "If the public knew what we get away with on a daily basis, they'd shut us down overnight."

This is why I have nothing to say to a cop other than "Am I being detained?" and "Am I free to go?" I will never consent to a search. It probably won't do much good.

And the survey above is from 1992? Do you really thing that in the culture of fear that's been going on for the past 8 years that cops are MORE honest?
posted by Catblack at 4:34 AM on January 30, 2009 [5 favorites]

[kneejerk/] PIGS IS EVIL!

This seems like a reasonable law. Wasn't the point, though, not so much about changing the behavior of cops but changing the results of lock solid convictions that were thrown out because of technicalities? Or was that another recent, but different, Supreme decision? It does seem as though if "the system" or, perhaps in the parlance of MeFi, "the man," allowed for the possibility that some fucked up lying cops will try to cement a case by planting evidence or fucking with witnesses and suspects, then this ruling will now allow for two positive things to happen: 1) the dumbass cop can still be, and may even be more likely to be, reprimanded and/or removed from their position for lying and 2) cases can still proceed based on evidence besides that which was gathered/tampered with by the offending officer.

Perhaps this is not sufficiently Uhmurcan for some, but it seems reasonable enough to me.
posted by billysumday at 4:51 AM on January 30, 2009

I've worked with police officers, and this is absolutely true. Police officers lie habitually and in obviously pro forma ways to legitimate unconstitutional stops and searches. But here's the thing: the exclusionary rule is a pretty nuclear response to unreasonable searches. Since this usually comes up in drug cases, it seems relatively benign to allow the drug user or dealer to walk because most of us don't like drug laws or see them enforced in racist ways and thus sap the legitimacy.

And what about when it's a violent crime? Suppressing evidence gained improperly seems troublesome in those circumstances. We really shouldn't be letting serial killers loose because some guy with a high school education didn't understand the difference between reasonable suspicion and probable cause. Most ordinary folks think Mapp exclusion is absurdly over-lenient, which saps the legitimacy of the constitutional protection. Like it or not, there's a symbiotic relationship between public opinion and civil rights.

Another very common way to avoid constitutional issues with a search is to relay the target to a third officer by radio. Police officers can treat the advice of another LEO as the equivalent of probable cause, so it's a good way to jump the suspicion ladder. Officer Asshole sees someone he wants to search, but doesn't have a good reason, so he radios Officer Friendly the description and location, and on the basis of that transmission, sans any reasons or accusations, Officer Friendly can stop and search Asshole's suspect. If Officer Asshole did it, any evidence garnered by the search would be unconstitutional, but because he is relying on his asshole colleague, Officer Friendly's search is admissible.

The problem is that this habitual lying and gaming to enforce the law is terribly corrupting. If the first thing you learn on the job is to lie to legitimate the search, it's easy to slide from that lie to another that legitimates brutality. I've heard the same description of resisting arrest a hundred times: "he waved his arms and legs, resisting arrest, so I...."

You can't stop trusting police completely and still have the rule of law, and the surveillance equipment needed to render their actions perfectly reviewable isn't quite available yet. (Though I've known some honest cops who carry tape recorders to document all of their interactions, it's still only audio.) The exclusionary rule is the best we've been able to do so far, but it's a hardly perfect and we ought not pretend it is.
posted by anotherpanacea at 5:00 AM on January 30, 2009 [6 favorites]

that evidence obtained from certain unlawful arrests may nevertheless be used against a criminal defendant could indicate the U.S. is inching closer to a system in which officers might not be tempted to lie to prevent evidence from being thrown out.

That is so wrong. You can't loosen defendant's protections because of this.

I've never seen a cop testify in a criminal trial so I have no data on this from my own experience. Nor I have I discussed this with officers. I've had a prosecutor friend drop cases when they feel the officer is lying. I have seen Internal Affairs investigators lie on the stand to get police officers fired. Since I have a lot of time to prepare, it is relatively easy to catch them--it is hard to lie effectively when well-prepared attorneys engage in spirited cross-examination.

I do think the real problem is one of not enough criminal defense lawyers. They have no time to prepare. If you've ever been at the cattle call which is a criminal courtroom, you'd understand what I mean.

My experience is much like Catblack's. If an officer is caught lying, they are fired and usually lose any appeals.

I do know that Alex Kozinski is a conservative who watches porn in his chambers on federal government computers. He does not deny this.
posted by Ironmouth at 5:05 AM on January 30, 2009 [1 favorite]

I just think that police officers should be required to wear helmets. Helmets with multiple view webcams and microphones, that automatically stream everything they see and hear up to a server in a timestamped format with GPS coordinates, and then checksummed for anti-tampering and encrypted. They start a shift, they put on the helmet. They end a shift, they take off the helmet.

All data must be kept for at least a year, after which they can optionally throw away the footage.

In any case where footage is in any fashion unavailable during trial, the defendant automatically goes free.

I mean, if you've got nothing to hide, right ...?
posted by adipocere at 5:12 AM on January 30, 2009 [11 favorites]

We really shouldn't be letting serial killers loose because some guy with a high school education didn't understand the difference between reasonable suspicion and probable cause.

Edge cases make for bad policy.
posted by squorch at 5:14 AM on January 30, 2009 [10 favorites]

changing the results of lock solid convictions that were thrown out because of technicalities?

Uh, they'd be going through everybody's house on a regular basis without that rule these days. It is a powerful deterrent.

An officer violating a suspect's rights isn't a technicality.

Very few cases are thrown out on issues stemming from violations of a suspect's rights (what conservative spinmeisters call a "technicality.") My textbook in law school asserted that 90% of cases are pled out and 90% of cases that go to trial are won by the state. Here in DC, the conviction rate is lower.

Note that ending the drug war would solve the vast majority of these problems instantly.
posted by Ironmouth at 5:18 AM on January 30, 2009 [1 favorite]

Also, I know of zero actual cases where a serial killer was released because of an illegal search. Could you cite to one?

A huge amount of the public's perception of these cases is driven by fictional portrayals.
posted by Ironmouth at 5:22 AM on January 30, 2009 [1 favorite]

I just think that police officers should be required to wear helmets...

The same goes for all politicians.
posted by Enron Hubbard at 5:27 AM on January 30, 2009 [1 favorite]

Also, I know of zero actual cases where a serial killer was released because of an illegal search

I was seeking an example. I made one up. Sue me, or substitute one that you've actually seen.

Very few cases are thrown out on issues stemming from violations of a suspect's rights (what conservative spinmeisters call a "technicality.") My textbook in law school asserted that 90% of cases are pled out and 90% of cases that go to trial are won by the state. Here in DC, the conviction rate is lower.

This is in large part because police officers lie about the circumstances surrounding their arrests and searches. It's also evidence that a large number of criminal defendants are denied their constitutional right to a jury trial through coercive plea bargaining.
posted by anotherpanacea at 5:38 AM on January 30, 2009

A friend of mine who was a rather successful defense attorney in Toronto used this against the police. Because he knew they lied all the time he could catch the lie, expose it, and get his client off. His biggest complaint was "the police are so stupid, they make my job so easy".
posted by Vindaloo at 5:42 AM on January 30, 2009

Ironmouth: the perception of the O. J. Simpson case is that he got off because the police chief once said the n-word to another cop and because the police officers on the scene did not follow the correct procedures when gathering evidence. Obviously it's more complicated than that, but there you go. Also, members of the Weather Underground blew up a bunch of buildings but many were never convicted of anything, largely because of the fact that an FBI agent gathered some evidence incorrectly. So it does happen, sometimes in big cases.
posted by billysumday at 5:47 AM on January 30, 2009

The only reason cops get away with this is because they only do it to powerless people. Cops are bullies. If they were systematically doing this to the judge's peer group, this would end in very short order.
posted by popechunk at 5:55 AM on January 30, 2009 [6 favorites]

I just think that police officers should be required to wear helmets. Helmets with multiple view webcams and microphones, that automatically stream everything they see and hear up to a server in a timestamped format with GPS coordinates, and then checksummed for anti-tampering and encrypted.

Hmmm, I think I prefer living in this world, where every interaction at every streetcorner is not recorded and kept on file for years by the police.
posted by billysumday at 6:04 AM on January 30, 2009

I think a big part of why OJ got off was that Mark Fuhrman lied on the witness stand about having repeatedly used the N-word, which undermined his credibility and raised doubts about whether he actually found a glove at Simpson's house--on the other side of the building from the trail of blood from the car into the house--or planted it there.
posted by kirkaracha at 6:11 AM on January 30, 2009

I think vantam above is absolutely correct, though I'd add "inverse surveillance".
News Flash:
Perjury is widespread anywhere there is law.
And everywhere else.
posted by vapidave at 6:12 AM on January 30, 2009

The proper response isn't "let's loosen the rules so that cops can be honest about lawbreaking" it's to require police to record everything that happens when their on the job in order to make lying much more difficult. Cameras are much cheaper these days, and it would only cost a few hundred dollars to put multiple cameras on a cop's uniform. Less then the cost of a gun and taser.
posted by delmoi at 6:15 AM on January 30, 2009

I think a big part of why OJ got off was that Mark Fuhrman lied on the witness stand about having repeatedly used the N-word, which undermined his credibility and raised doubts about whether he actually found a glove at Simpson's house--on the other side of the building from the trail of blood from the car into the house--or planted it there.

Sort of my point, I guess. The trial became about what an asshole Fuhrman was and not on the overwhelming evidence - glove or no glove - that pointed to Simpson's guilt. Seems like you can have it both ways, ie, Fuhrman was an idiot and a jerk who should have been reprimanded/suspended, and also, Simpson is clearly guilty, let's not throw the baby out with the bathwater.
posted by billysumday at 6:17 AM on January 30, 2009

In my limited courtroom experience I've witnessed LEO reverse their stories while on the stand, and not admit to it. The thing is nobody gave a shit, especially not the judge. But thats really what law enforcement is: kids who barely squeaked by with a high school diploma harassing kids who didn't squeak by with a high school diploma. If you're a judge it's probably hard to care: you know the cop is lying but you know the defendant actually was selling the minuscule amount of controlled substance for which the Federal Sentencing Guidelines will lock him up for 98 months or whatever.

My problem is when I get harassed by LEO. I'm actually a useful citizen and am not deserving of the blanket ghetto-warfare tactics cops use on everybody these days.
posted by norabarnacl3 at 6:20 AM on January 30, 2009

A friend of mine who was a rather successful defense attorney in Toronto used this against the police. Because he knew they lied all the time he could catch the lie, expose it, and get his client off. His biggest complaint was "the police are so stupid, they make my job so easy".

The problem is that it's almost never that easy.I'd guess that the vast majority of police lies are in misdemeanor drug possession cases, where the only witnesses are the cops and defendant. The cops say the person consented to a search, the defendant denies this. The cops are well trained professional witnesses, and the defendant is a mentally ill, homeless man with a long criminal record and a tendency to shout obscenities in court. No matter how much the cops lie, it's going to be really, really hard to catch them in it, because the only evidence that they're lying is the defendant's testimony, which no one will believe.
posted by Bulgaroktonos at 6:23 AM on January 30, 2009 [1 favorite]

There is a whole lot of generalization going on in here.
posted by riane at 6:30 AM on January 30, 2009 [3 favorites]

Yeah I got picked up for hitchhiking on an Interstate, years ago. Cop never read me my rights or anything close to it but when I brought it up before the judge he said he did & his partner backed him up. Cops lie, absolutely.
posted by scalefree at 6:32 AM on January 30, 2009

What? No [fuck the police] tag?
posted by Jeremy at 6:33 AM on January 30, 2009

Lying about how evidence was seized. In other words, they're not lying about the guilt of the defendant. They're lying to get evidence heard in court. I can live with that.
posted by snookums at 6:36 AM on January 30, 2009

No serial killers however.

OJ was acquitted by a jury. That's not a "technicality" under anyone's definition. 12 people felt the prosecution didn't prove their case. The evidence in that case was not excluded by the exclusionary rule, it was questioned by the jury. That jury knows more about the OJ case than you or I will ever know. More about the case than the TV reporters. Everytime I hear people talk about that case they act like they "know" OJ did it. More than the jury? Please.

Let's get real here. The Wall Street Journal was one of the most conservative papers in the nation before Rupert Murdoch of Fox News bought it last year. This is a "trojan horse" piece designed to get liberals to sign off on removing protections from criminal defendants because some of them dislike the police. Those protections are what makes this country great. You can't be against the PATRIOT Act and for getting rid of the exclusionary rule because cops sometimes lie. One is far worse than the other and its not the PATRIOT Act.

I remember a few years ago, the Bush head of the Federal Election Commission, a man thoroughly against campaign-finance laws, told a Wired reporter that the FEC was considering going after what bloggers had to say as a contribution. The FEC, was, in actuality, considering nothing of the sort. But Daily Kos and a whole lot of people fell for the bait and started denouncing McCain-Feingold like robots. Mission Accomplished.

Do police lie on the stand? Sometimes. Do criminal defendants lie on the stand? A lot more than that. Does this mean we should drop a ver effective deterrent to police misconduct? Never.

Think of it--the authors are floating a proposal to stop police misconduct on the stand by removing a deterrent to police misconduct on the streets. Who here is for that? Not me.
posted by Ironmouth at 6:36 AM on January 30, 2009 [13 favorites]

Do police lie on the stand? Sometimes. Do criminal defendants lie on the stand?

Maybe as a percentage, this is true, but the number of criminal defendants who testify at all is incredibly low.
posted by Bulgaroktonos at 6:41 AM on January 30, 2009

*gasp*

academic experts have called for doing polygraphs on officers who take the stand

Uhh...who are these "academic experts" and why don't they know about polygraphs being pseudoscience?

We really shouldn't be letting serial killers loose because some guy with a high school education didn't understand the difference between reasonable suspicion and probable cause.

I agree. So why are we requiring such poorly educated people to make these decisions? Don't dumb the necessary process down to the participant--smarten the participant up to the process.
posted by DU at 6:49 AM on January 30, 2009 [1 favorite]

This is a "trojan horse" piece designed to get liberals to sign off on removing protections from criminal defendants because some of them dislike the police.

I don't really think that's accurate. What do you make of the longstanding debate in which numerous legal scholars have suggested that the exclusionary rule be replaced with either a system of monetary compensation for persons whose 4A rights have been violated or with a system in which the evidence is admitted but the defendant is given a mandatory sentencing reduction? The exclusionary rule has been regarded as flawed by people of all sorts of political backgrounds. I personally would favor continued exclusion on constitutional grounds, but I'm not sure what the long-term costs of that as policy choice are and I don't think my reading of 4A is the only possible one.
posted by Inspector.Gadget at 6:49 AM on January 30, 2009

The problem is that this habitual lying and gaming to enforce the law is terribly corrupting. If the first thing you learn on the job is to lie to legitimate the search, it's easy to slide from that lie to another that legitimates brutality.

Exactly. There are lots of little areas of policing where the rules that apply to the general public do not apply to them. For instance, an off duty cop is not getting a traffic ticket, except perhaps in an extreme DUI situation. Obviously the whole institutionalized lying thing is a much bigger problem, but they all lead to a slippery slope of dishonor while the officers and even many of the public still see this as honor.

My problem is when I get harassed by LEO. I'm actually a useful citizen and am not deserving of the blanket ghetto-warfare tactics cops use on everybody these days.

Translation - it's OK to harass minorities or punks because we all know they are crooks, but don't harass me.
posted by caddis at 6:52 AM on January 30, 2009 [2 favorites]

Let us suppose that a vehicle makes a turn without using a turn signal and that there is no other traffic around. An officer observes this and pulls the person over. Let us further suppose that the state where this occurs has a law that says not turning on a turn signal is only a violation of the rules of the road if there is another vehicle within 200 feet of the car.

This defendant then goes to court and challenges his arrest by saying there was no reasonable suspicion for the stop. The defendant wound up being arrested for DWI or a misdemeanor possession of marijuana. Most -- if not all -- judges would find that there was no reasonable suspicion for the stop. The case would be dismissed.

Operating under the same facts as above, but now the officer found twenty pounds of marijuana in the trunk. Defendant makes the same motion. Some -- maybe half -- judges would find there was no reasonable suspicion for the stop and the case would be dismissed.

Same as above, but now a body is found in the trunk. Defendant makes the same motion. There is not a judge in the United States of America who would rule that there was no probably cause.

The thing is, there is nothing in the law that says any different standard to the stop should be applied based on what the person wound up being charged with. But we realize that the whole requirement for reasonable suspicion to stop a vehicle is really just a fiction.

This problem could easily be addressed by not allowing the judge to know what the person was charged with before ruling on reasonable suspicion. That would be a simple solution. That is not done, obviously, because someone would get away with something really big. So the judge knows what the person is charged with before ruling on the stop of the vehicle. I have seen a hearing for reasonable suspicion and the officers brought in fifty or so pounds of marijuana. The presence of or amount of marijuana had no bearing on the issue that was being heard. The officers just wanted the judge to see exactly what the defendant would be getting away with if the judge decided to cut him loose.
posted by flarbuse at 6:55 AM on January 30, 2009 [9 favorites]

Edge cases make for bad policy.
posted by squorch at 8:14 AM

Too bad multiple favorites cost $5 each.
posted by fantabulous timewaster at 6:58 AM on January 30, 2009

This is in large part because police officers lie about the circumstances surrounding their arrests and searches. It's also evidence that a large number of criminal defendants are denied their constitutional right to a jury trial through coercive plea bargaining.

Wow. What have you done with the real anotherpanacea?

First, you have no evidence for the first proposition. I'm quoting stats I saw in my crim pro book. There's no study that I've seen that supports your proposition. The survey above says ony 20% are lying. Even if those numbers were true, they do not support your proposition that lying about the circumstances of arrest has any major effect on plea bargaining as a whole in this country. I'm a bit surprised that you would advance this without evidence (I read your blog).

Second, there is simply no logical construction that would support the conclusion that "coercive plea bargaining" denies anyone the right to a fair trial. As has been put in the hundreds of cases where people have challenged plea bargains or settlements of civil or administrative cases, the fact that a person has to choose between two equally distasteful alternatives is not the basis for throwing out a plea. If the plea bargain is not taken, the defendant retains his right to the trial. This is the law and it operates like that day in and day out. Thousands avail themselves of the ancient right every year. Our entire system is based on putting people in a difficult place in order to work. It is, by definition, an adversarial system. That's what should be happening with police on the stand--good defense attorneys like the one mentioned in Toronto can easily see through the corner-cutting which is at the base of all of this. These are not elaborate air-tight stories. I've seen dozens lie on the stand and it isn't easy to do with effective, well-prepared counsel. Any one who has conducted an actual cross-examination knows this. The problem is that the poor have very little access to good representation with the time and energy to prepare effectively. If they did, this would be far less of a problem. We need better criminal representation, at a rate of pay which doesn't require defense lawyers to do assembly-line defenses just to put food on the table and pay off 100k in law school debt.
posted by Ironmouth at 7:04 AM on January 30, 2009

In the OJ case the police also claimed that they entered the ground of OJ's house because they were worried about his safety. This was obviously a lie and it was a material one. After jumping the wall without a warrant Fuhrman found the bloody glove. The fact that the trial judge did not suppress the evidence does not change the fact that everyone in the court room must have known that the police were lying about why they jumped the wall. So I don't think you can reduce the LAPD's credibility problems to whether or not Fuhrman used the N-word.
posted by rdr at 7:10 AM on January 30, 2009

Seems like you can have it both ways, ie, Fuhrman was an idiot and a jerk who should have been reprimanded/suspended, and also, Simpson is clearly guilty, let's not throw the baby out with the bathwater.

It's just like the movie, Touch of Evil. A cop can frame somebody, yet the person still might be guilty.
posted by jonp72 at 7:17 AM on January 30, 2009 [1 favorite]

What do you make of the longstanding debate in which numerous legal scholars have suggested that the exclusionary rule be replaced with either a system of monetary compensation for persons whose 4A rights have been violated or with a system in which the evidence is admitted but the defendant is given a mandatory sentencing reduction?

The stated purpose of the exclusionary rule is deterrence of police misconduct, not to reward a convicted criminal for having his rights violated. How is that served by after the fact remedies such as you propose?
posted by Ironmouth at 7:19 AM on January 30, 2009 [1 favorite]

It kills me how this community dismisses the police as power-hungry assholes "who barely squeaked by with a high school diploma" - snobbery at its finest.

If you really believe that formal education skills are necessary to police work, then the issue isn't whether or not we should give cops incentives not to lie. The problem is that higher education creates a class of people who, by and large, have no interest in taking the shit job that is being a cop. Because once you have better prospects, who wants a job where you get abused by the people you're supposedly trying to help, where you have 20 miles of red tape to get through to get a new pen, where you don't get paid very well, where there's a very real chance you might get injured or killed? I sure as hell don't. But if we don't do the job, then someone has to (assuming you buy into the premise that having police in general is a good idea, and I think you probably do). Just as more poor, undereducated kids become soldiers, so do more poor, undereducated kids become cops.

But I don't believe that people who sailed through school have a monopoly on caring about justice, though, and I do think that people who sign up to be cops, a lot of the time, just want to make the world safer. Sometimes they get corrupted, yeah, and sometimes people do take the job because they want power. But it's confirmation bias - there's still a lot of good out there being done. We need to take a good hard look at the system and what we as a society has made of our police before we start condemning them.
posted by marginaliana at 7:27 AM on January 30, 2009 [2 favorites]

It kills me how this community dismisses the police as power-hungry assholes "who barely squeaked by with a high school diploma" - snobbery at its finest.

Your first thread with norabarnacl3, I see.
posted by Benjy at 7:52 AM on January 30, 2009

Indeed, the fourth amendment isn't a technicality, and if we do away with the exclusionary rule, we have effectively repealed the fourth amendment because a right without a remedy is no right at all.

The only mechanism we have to enforce the fourth amendment is the exclusionary rule.

When my dad was pulled over at 4:30 am in Dade County, Georgia, on his way home from driving a mail truck and kept on the side of the road in the cold for an hour while the police searched his car, what was his remedy? Nothing.

When my co-worker's 18-year-old son was pulled over just after midnight and arrested for "evading the police" because he drove half a mile at 5mph under the speed limit to a lighted parking lot instead of pulling off on a dark rural highway with no shoulder, spent the night in jail, and had his father's hunting rifle, rifle case, and "subversive literature" (including a copy of the US Constitution) confiscated by the deputy, what was his remedy? Nothing, not even when the sheriff's department "lost" his rifle.

By definition, the only people in the US who have the right to enforce the fourth amendment are criminals, They're guilty of something, and it's a natural tendency to try to find some exception to the fourth amendment to put the "bad people" away. It's hard to have much sympathy for Mr. Herring--he walked into a police station carrying a loaded gun and a pocketful of methamphetamine. One of my students just yesterday said he ought to go to jail for being that stupid.

And that's the real problem with the exclusionary rule: violations of the fourth amendment have gone from "fruit of the poisoned tree" that would taint any part of the judicial process they touched to a technicality that we'll enforce only if the benefit is greater than the "harm" caused to the justice system by not putting another person in jail--the standard Roberts used in Herring to uphold the conviction. We get sidetracked worrying about criminals roaming the streets and forget that the only protection any of us have from unreasonable search & seizure lies in enforcing the fourth amendment when a criminal's rights are violated.

One advantage of allowing anyone (not just the guilty) to be compensated for fourth amendment violations is that it would protect the innocent as well as the guilty. Our current rule protects the guilty (sometimes, when we don't want to lock them up badly enough). Even if we don't hold the officer who violates the fourth amendment directly liable, if the cost of paying damages for fourth amendment violations comes out of the department budget, there will be an incentive to minimize illegal searches. I'm not ready to do away with the exclusionary rule, but I'm also disturbed by the lack of remedy for fourth amendment violations available to those who aren't guilty of a crime.
posted by fogovonslack at 8:02 AM on January 30, 2009 [14 favorites]

In case anyone got too involved arguing about the police to read to the end of the wsj article:

Throwing out evidence because of wrongful searches and arrests "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free," wrote Chief Justice John Roberts.

Yes, that's right, he's the Chief Justice of the Supreme Court of the United States.
posted by Bun at 8:06 AM on January 30, 2009 [1 favorite]

How's that again, marginaliana? You condemn as snobbish the assumption that cops are uneducated...Before explaining that cops are...uneducated?
posted by applemeat at 8:06 AM on January 30, 2009

For instance, an off duty cop is not getting a traffic ticket, except perhaps in an extreme DUI situation.

Off duty cops get traffic tickets a lot. In terms of DUIs, they are usually nailed to the wall. I've personally defended multiple officers in trouble for DUIs with their force after the criminal case is taken care of. It doesn't take an "extreme" DUI for an off-duty officer to get busted. A large proportion of my cases involve DUIs. That and looking up the Ex on the police databases.
posted by Ironmouth at 8:09 AM on January 30, 2009

If you really believe that formal education skills are necessary to police work, then the issue isn't whether or not we should give cops incentives not to lie. The problem is that higher education creates a class of people who, by and large, have no interest in taking the shit job that is being a cop. Because once you have better prospects, who wants a job where you get abused by the people you're supposedly trying to help, where you have 20 miles of red tape to get through to get a new pen, where you don't get paid very well, where there's a very real chance you might get injured or killed?

Absolutely. I've been saying this here for years. We should be paying cops a lot more so that we have the best people doing one of the most important jobs out there. Same with teachers, who we rely on much more than we realize.
posted by Ironmouth at 8:12 AM on January 30, 2009 [1 favorite]

I got around to reading the Herring decision after the thread for that was basically dead, but since it's come up again, I found the decision pretty terrifying. Not so much because it broke any new ground but because of all the precent it cited that I had no idea about, and that's the court's conclusion was basically "Defendant's fourth amendment rights were violated¹ but the amendment provides no recourse."

The exclusionary rule may indeed be a "nuclear option" but I don't know what sort of alternatives are available that would also provide some measure of protection. It really seems to me like the court has said that the Fourth Amendment is important but has limitations that don't appear in the amendment.

In Herring it's unconsted that Herring's fourth-amendment rights were violated, but there are no consequences for this violation. This is what disturbs me most. (Second most is that the case provides no incentives for police to maintain accurate databases, and to some may provide disincentives to that goal.) After all, what good is a constitutional right if, when it's violated, it provides no protection?


¹ "The parties here agree that the ensuing arrest is still a violation of the Fourth Amendment, but dispute whether contraband found during a search incident to that arrest must be excluded in a later prosecution."
posted by Godbert at 8:19 AM on January 30, 2009

Flarbuse also has some excellent insights. That's why serial killers never get off on a "technicality." Usually they use the inevitable discovery rule. Regardless, you won't see a single judge, especially an elected one, let a serial killer go on a fourth amendment violation.
posted by Ironmouth at 8:19 AM on January 30, 2009

applemeat, I'll agree that cops, by and large, are not people who have lots of education. What I'm saying is that a) I'm not sure that's the real problem, and b) even if you think that is the real problem, scapegoating the undereducated as incapable of understanding how justice works is not really going to help.
posted by marginaliana at 8:20 AM on January 30, 2009 [1 favorite]

the number of criminal defendants who testify at all is incredibly low.

A common misconception. Plenty of dumb defendants will insist on testifying and you won't be able to do anything about it. You'll see.
posted by Ironmouth at 8:27 AM on January 30, 2009 [1 favorite]

The fourth amendment says that searches without probable cause shall not happen. Seems implicit to me that if such a search *does* occur, whatever it takes to make it as if it didn't happen has to be done. That's what the exclusionary rule does (as far as the legal proceedings go, anyway). That's probably the best we can do without time machines. I hope it deters police misconduct, but that's a side issue. And if a serial killer goes free, that's just too damn bad, and a necessary thing to prevent the rights of innocent people from being violated by the government.
posted by Crabby Appleton at 8:31 AM on January 30, 2009

"And what about when it's a violent crime? Suppressing evidence gained improperly seems troublesome in those circumstances. We really shouldn't be letting serial killers loose because some guy with a high school education didn't understand the difference between reasonable suspicion and probable cause."

We really should be training officers better on these issues, not locking people up unconstitutionally. Until convicted, someone isn't technically a serial killer in the eyes of the law.
posted by krinklyfig at 9:55 AM on January 30, 2009

Actually, there's a very simple alternative to the exclusionary rule; you simply charge cops who break it with whatever crime it would be if they were civilians doing the same thing.

The point is that the entire system is endemically corrupt from top to bottom. Please note the word endemic: this doesn't mean that your average cop is taking bribes, but it certainly means that your average cop knows another cop who is.

I lived next door to an illegal cocaine club for a while. They weren't ravening murderers, but they played their jukebox all night and you could walk in and get coke right over the counter.

There were people in the police station tasked with shutting down just this illegal club. They knew about the place - but it was marked as "closed" on their map. I told them - come over any night between midnight and 8AM! I told them that the cops regularly showed up there because of noise complaints and fights. Nothing.

A few weeks later there was some huge fight there - I opened the door and saw someone running away with blood all over his face. The cops showed up - I was in my dressing gown, I must have looked pretty harmless - and I asked them, "Why can't you shut them down?" "They have a license." "Not only do they not have a license, they sell cocaine over the bar, and anyway, it's 5 in the morning, there's no license in the world for that!"

The cops simply wouldn't look me in the eye - and I realized, they're on the take.

Rarely do problems have simple solutions, but it's obvious to me - end the drug wars! The police stations are awash in drug money, it brings guns onto the streets, and it generally erodes respect for law on everyone's part.

End the drug wars and then the cops would have more than enough personnel to do things right, follow the exclusionary rule and actually spend their time taking down bad people - thieves, murderers, Wall St executives and the like.

End the drug wars and over the course of years the hatred between the police and the non-white population would subside once the police stopped destroying the lives of people who've done nothing to hurt anyone else.

---

Throwing out evidence because of wrongful searches and arrests "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free," wrote Chief Justice John Roberts.

I'm somewhat in favour of the exclusionary rule *but* what Justice Roberts writes is essentially correct.

Remember, we're talking about actual evidence here - something that might prove a person's guilt.

What the exclusionary rule says is, "Sometimes we have to let people off whom we could otherwise prove had committed a crime in order to prevent cops from committing crimes in their turn."

I have to say that I don't think it's an entirely watertight argument. The stakes are very much bigger for the accused than the policeman - in some sense, the arresting officer simply doesn't care that much if a few people get off because he commits criminal activity.

In fact, from a game theoretical perspective, a cop should be breaking the rules of evidence some portion of the time as long as the number of extra convictions of guilty people will outweigh the number of people getting off via the exclusionary rule.

Again, I go back to my initial argument - charge cops with with (minor) crimes when they commit them. It'd have to be like a speeding ticket - they'd get points, pay a fine and eventually lose their license.

And again I go back to my other argument - stop the drug wars. It'd be like adding 50% to the police force overnight. They could literally afford to have a camera man on each arrest.
posted by lupus_yonderboy at 10:11 AM on January 30, 2009 [1 favorite]

Actually, there's a very simple alternative to the exclusionary rule; you simply charge cops who break it with whatever crime it would be if they were civilians doing the same thing.

Many incidents that are searches for the purpose of the 4th Amendment are not otherwise criminal.
posted by Inspector.Gadget at 11:54 AM on January 30, 2009

So, I probably favorited everything Ironmouth said in this thread, but just in case I missed any: I meant to.
posted by Amanojaku at 12:10 PM on January 30, 2009

"In fact, from a game theoretical perspective, a cop should be breaking the rules of evidence some portion of the time as long as the number of extra convictions of guilty people will outweigh the number of people getting off via the exclusionary rule."

Well, since we have a legal basis in the constitution, I'm afraid game theory doesn't hold much water, at least legally speaking. What you don't mention is the number of people wrongly convicted going up. It's not just the ends that are important, but constitutionally the means are of utmost importance. We could also cut down on crime by eliminating habeus corpus, but chances are the criminal element would move more completely into law enforcement, seeing as they would have few restrictions on their power.
posted by krinklyfig at 12:21 PM on January 30, 2009

Look, folks, here's the thing about freedom: sometimes, the consequences suck. We like to talk about how Freedom Isn't Free and about Paying the Price of Liberty, but when it comes down to it, I see an awful lot of people who want to pay for freedom with freedom itself. We'll surrender our freedom, they say, to get freedom.

And that's insane, just as insane as the idea of buying money with money. Liberty means that sometimes, people get off, because the consequences of people occasionally Getting Away With It are far better than having a police state. Those of you who would repeal the exclusionary rule are no different from those who supported USA-PATRIOT and who went on FOX News and explained that freedom could only be protected by surrendering it. We all have to decide what's more important to us: our freedom or the possibility that someone, somewhere, is going to get away with something.
posted by Pope Guilty at 12:42 PM on January 30, 2009 [3 favorites]

Also holy crap how often am I on the same side of an argument about the police as Ironmouth?
posted by Pope Guilty at 12:42 PM on January 30, 2009

Actually, there's a very simple alternative to the exclusionary rule; you simply charge cops who break it with whatever crime it would be if they were civilians doing the same thing.

This is not possible. The police (and all government officials) have qualified immunity, which protects those with a good faith belief that their actions were constitutional. If it didn't exist, nobody would do the job. Why would they risk life, limb and arrest for 35k a year and 3rd shift hours?

Also, Inspector Gadget has it right--these are not criminal acts in themselves.

Remember, we're talking about actual evidence here - something that might prove a person's guilt.

Think of it this way--assume you drive a red camaro and the police know a red camaro was seen leaving a bank robbery. Why not tear apart the houses of everyone who owns a red camaro within 100 miles of the crime, as well as all of their friends. Its highly likely to obtain evidence against the actual perpetrator. Of course a whole bunch of people will have to pay to have their houses fixed from having a SWAT team break down their door, but the perpetrator will be caught. These things are often thought of as stopping murderers but they protect you in ways you don't see. Currently the police would never dream of doing that. Why? Because the Fourth Amendment prohibits it. Without the Fourth Amendment, you'd see it all of the time. The fact that the exclusionarly rule only comes into play in criminal prosecutions doesn't mean its protections don't affect all of us. Remember that our forefathers had to deal with this crap a lot more, as the Redcoats could do as they liked. We only have a society where the cops can't just storm in anywhere because of the Fourth Amendment. The Bill of Rights is such an amazing and powerful set of protections that we don't even notice they are protecting us from these types of searches.
posted by Ironmouth at 1:49 PM on January 30, 2009 [2 favorites]

Also holy crap how often am I on the same side of an argument about the police as Ironmouth?

Actually, it doesn't surprise me at all. The police are needed, they protect us from crime, disaster, traffic accidents, a whole slew of things. The only differences we have involve my belief, based on my experience, that they are not evil jackbooted thugs, but people who have tough jobs that involve balancing the rights of citizens with the task of preventing bad things from happening to us. We need to have those rights protected.
posted by Ironmouth at 1:59 PM on January 30, 2009 [1 favorite]

The cops simply wouldn't look me in the eye - and I realized, they're on the take.

If you have evidence of this, you should bring it to the authorities. It is your civic duty.
posted by Ironmouth at 2:12 PM on January 30, 2009 [1 favorite]

“Liberty means that sometimes, people get off,”

Very true. Funny how people forget that the objective to have a free society not to make sure everyone is punished for the sake of a minority.

Pretty good thread btw, not a lot of knee jerk aphorisms.
posted by Smedleyman at 3:14 PM on January 30, 2009

Supreme Court Restricts More Rights
posted by homunculus at 4:01 PM on January 30, 2009

Anecdotes: A cop I met in Central Park summer 1989 picked me up, wanted to date. I'd never been approached like that by a cop before and was curious, spent a couple of hours talking with him. As a former hippie, who grew up thinking of cops as "pigs", I wanted to open my mind as an adult. That conversation, however, was enough to never want to go out with a cop. I have no idea why he confessed the things he did to me. It was a surreal couple of hours. He said he'd drive me to the park entrance but then took me on a brief ride. He parked his scooter in The Ramble, a part of Central Park notorious for various sexcapades and frankly, I was afraid, glad when I parted company, in tact.

First, he said he had been demoted and that's why he was using one of those scooter vehicles. He said they were often used for demoted cops. He said he'd been demoted because when he worked uptown he'd made a lot of drug busts (the arrests were called "collars") and it is assumed that the cop who busted the dealer pocketed the dealer's money. The cop jargon was then, according to him, "collars for dollars".

A rule came in to the police force he said, that officers were obliged to make a quota each day of an assortment of fines, not just criminals. This would bring the city revenue. So there was tremendous pressure on the supervisors by politicians to generate revenue for the city coffers with all kinds of tickets for anything, like pissing in public, drinking beer in public, loitering, littering and take the focus off the drug dealers.

He said the new head of police had come from out of town and was demanding that officers, in uniform, hide in trash bags or other containers, as a way to camouflage themselves but witness criminal activity/make arrests. He said this was patently insane. I didn't know whether to believe him or not.

The scariest part was that he said he was one of the cops who busted one of the kids in the Central Park jogger rape case. (Over the years it was revealed those 5 kids were not, in fact, the rapists. The confessions must have been coerced.) He said his specialty was busting rapists. The way he said it and described several rape scenes I got the distinct impression he enjoyed the idea or action of rape. He said he lived with his dad, also a cop, was single and that women wouldn't go out with cops because the rotation of their hours made it impossible to have any kind of normal life.

As a street vendor I've seen and heard a lot of things over the years as anyone who spends enough time on any NYC street. In my neighborhood a woman I know who worked as a prostitute, now in recovery and leading a peaceful life, said she was brutally raped by a local cop. When she speaks about it her demeanor changes and it is plain she was deeply traumatized by the experience.

Also in the 80's very early one street vending day after I'd finished sweeping the pavement to prepare it for business, a big guy parked his car in front of my selling turf and dropped a piece of paper, littering. I went to pick it up to see if it were something I should return to him and then changed my mind. It said something like: "Here's the cash, the cops have been paid off. Meet me on island." I followed the guy because I then thought he might be about to commit murder or something. He went into the Hilton Hotel. I called the anonymous TIPS hotline with the guy's license plate but noticed he returned to his car some hours later and drove away.

There was one very tall, big-bodied vendor police officer I called The Great White Shark. The vendor police in Manhattan are called "Alpha" because they used to patrol in vans that said "Alpha Moving Company" on the side. They're undercover, not in uniform. This Alpha cop had a thing for arresting unlicensed female vendors and he would leap out of a taxi in front of any unlicensed female vendor and arrest them. I saw that repeatedly with my own eyes. But there was one female unlicensed vendor he fancied and never arrested. The women I saw arrested sold hand made jewelry and had a TV table sized display, really utterly harmless. The unlicensed vendor would then spend 3 days in the nightmare dungeon of The Tombs jail downtown. The stories I've heard from the vendors taken there was that it is not a fun place, at all.

Looking up The Tombs I came across this eye-opening essay by a guy who had a nervous breakdown and ended up in the correctional system, depicting a brief glimpse into the corruption and offering an assortment of darkly interesting snippets of info like, Steering is when an undercover cop comes up to you and asks you where people are selling drugs. Even a get-rid-of-you wave in the wrong direction can get you arrested.
posted by nickyskye at 4:05 PM on January 30, 2009 [1 favorite]

"In fact, from a game theoretical perspective, a cop should be breaking the rules of evidence some portion of the time as long as the number of extra convictions of guilty people will outweigh the number of people getting off via the exclusionary rule."

Well, since we have a legal basis in the constitution, I'm afraid game theory doesn't hold much water, at least legally speaking.

Sigh, you are missing my point entirely. Let me be even clearer.

"There is no advantage to a police officer not to break the law by lying unless we punish them for doing it. In fact, the way the system is set up now, there's every advantage TO lying."
posted by lupus_yonderboy at 5:41 PM on January 30, 2009

I'm a bit surprised that you would advance this without evidence (I read your blog).

Well, I worked for two years investigating police misconduct in New York City. In a few cases I investigated, I saw that bad searches had been used to persuade defendants to plead guilty to charges that might not have held up in court, on the basis of searches that I was able to show were not just unconstitutional, but rose to the level of misconduct. This was evidence that would have been excluded, and that the officer knew or should have known was completely inadmissible, so they lied about it and we caught them at it.

I don't have statistics to back my claim up, and I'd be suspicious of any that were offered, but I investigated dozens of cases and I saw some patterns that I believe were widespread given my interaction with my superiors and colleagues, and the general tenor of the agency. Many officers lied, or at least they fit complicated events into a simple fact pattern that they had learned by heart, which is deceptive even if the intent to mislead was not always there. Only rarely did we charge them with perjury: the effective standard of proof was unbelievably high. If you can't trust cops, who can you trust, right?

Granted, I worked with officers whose actions had already risen to the level that called for investigation, but I saw many cases in which even an honest cop with a clean arrest still resorted to the pro forma account of the causes of suspicion, the results of the search, and the reasons for using force during the arrest. Maybe later this weekend I'll dig out some old reports and see if I can put together some numbers for you.

As for studies of the impact of coercive plea bargaining, I've seen some law review articles to this effect, and I've definitely heard it from prisoners describing their own experience: as I understand it, a prosecutor can be pretty punitive in lumping charges onto a perpetrator so as to make the plea the only reasonable choice. The courts (in NYC at least, but this seems like a national concern) are pretty busy, and there are a lot of incentives for public defenders, judges, and even sometimes defendants (who want to get out of Rykers and start serving a settled sentence rather than having things up in the air) to skip the delay and the uncertainty of a jury trial. This isn't really the same thing as 'denying' them their right to a jury trial, but it's definitely coercive in a way that I think is troublesome.

We need better criminal representation, at a rate of pay which doesn't require defense lawyers to do assembly-line defenses just to put food on the table and pay off 100k in law school debt.

That would be good, yes, but it's a bit utopian. Are you following Vermont v Brillon? I'm feeling a little worried about Gideon rights these days: the system is feeling mighty brittle....

BTW: thanks for reading the blog!
posted by anotherpanacea at 9:50 PM on January 30, 2009 [1 favorite]

Deadly Force: What a SWAT team did to Cheye Calvo's family may seem extreme. But decades into America's war on drugs, it's business as usual.
posted by homunculus at 2:04 PM on February 1, 2009

Is the Supreme Court About to Kill Off the Exclusionary Rule?
posted by homunculus at 7:14 PM on February 16, 2009