The Police and ‘Testilying’: Perjury On the Witness Stand?
During any given criminal case, certain facts in police testimony that appear to be banal or happenstance—such as the placement of a hand or someone dropping a bag of drugs—seem reasonable when taken by themselves.
But looking at police testimony in similar cases, if some facts continue to appear in case after case, an observer may come to a disquieting conclusion: police are lying.
“Testilying” is the colloquial term for the police practice of lying on official documentation or in court under oath (i.e., perjury). Typically, testilying is used to justify searches in drug cases that would otherwise be deemed illegal.
The exclusionary rule, established in Mapp v. Ohio (1961), states that evidence gathered from a search that violates the Fourth Amendment cannot be used in court against a defendant. If, however, a police officer testifies that he saw the drugs dropped into plain view, he has probable cause—and thus, legal permission—to conduct a search without a warrant.
Some criminal justice observers think it may be the most common manifestation of police misconduct.
Alex Kozinski, former chief judge of the U.S. Court of Appeals for the Ninth Circuit once said, “It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers.” Many commentators in the legal community agree, though there is no consensus about what to do about it.
The repeat players in the criminal justice system naturally recognize testimony they hear over and over again. Unless drug dealers magically became klutzier after Mapp, there is strong reason to believe so-called dropsy testimony has become a widespread and illegal institutional work-around to the Fourth Amendment.
Perjury—lying in court under oath—is a crime in any circumstance, whether in a misdemeanor drug trial or a capital murder case. Police officers are very rarely charged with perjury in any type of case, despite testilying's ostensible pervasiveness. If testilying is as common as some believe, and police feel immune to perjury prosecutions, the incentive to lie to defend themselves or a colleague in a use-of-force case must be very strong.
Testilying in drug cases strongly suggests police are acutely aware of the evidentiary rules and procedural demands placed on them by legislators and the judiciary. As I noted in my last piece, officers operate with wide discretion within the boundaries of those demands.
In use-of-force cases particularly, giving broad leeway to police officers makes a lot of sense. Unlike members of the public who are free—if not demanded, in some cases—to flee dangerous situations, police officers are tasked to run toward danger for the sake of the citizenry. Police are forced to make split-second judgments on dangers to themselves and others when dealing with a potentially dangerous suspect.
Officers are human and therefore make honest mistakes, and thus the justice system should provide them with a modicum of protection when they make errors that reasonable people would make given the same circumstances.
But just as any power may lead to abuse, so may legal privileges, even those granted with the best of intentions.
The two most prominent Supreme Court cases in use-of-force authority are Tennessee v. Garner (1985) and Graham v. Connor (1989). These two cases indeed provide ample protections for police officers with regard to the use of force.
Edward Garner was a teenager fatally shot by Memphis police while fleeing officers after commission of a burglary. In Tennessee v. Garner, the Supreme Court held that lethal force may not be used to stop a suspect simply to prevent him from fleeing. The Court writes:
“Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so….A police officer may not seize an unarmed, nondangerous [sic] suspect by shooting him dead….[I]f the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”
Notably, the Garner decision exposed the government to litigation for the officer's unreasonable use of force. The Court noted that Garner, being an unarmed young teen of slight physical build who was fleeing police, could have posed no imminent threat to police or others and therefore the use of lethal force was clearly unreasonable.
In Graham, the Court goes further to describe what is and is not a Fourth Amendment violation as a result of excessive force. Perhaps as a surprise to some readers, there is no right against excessive force as such, but rather courts must make after-the-fact determinations of whether seizures (i.e., violence used by police to arrest or detain a suspect) before trial are unreasonable and thus violate the Fourth Amendment. Therefore, even though the officers involved in Graham handcuffed and roughly threw an innocent man suffering insulin shock into a squad car saying, “Ain't nothing wrong with the motherfucker but drunk. Lock the son of a bitch up,” the Court ruled his perfectly legal but suspicious behavior—running into and out of a convenience store—led the police officers to reasonably believe that a crime may have been committed and his detainment, however aggressive, was therefore legal.
Simplifying, then, these cases taken together lay out the standards for what is expected of police officers in use-of-force encounters and how their actions should be judged after the fact. Garner outlines the specific conditions that may obviate the prohibition on the use of lethal force against a suspect: the suspect must pose an immediate threat to the officer or the public; be armed and/or dangerous; must threaten the officer with a weapon; or had committed a crime causing serious physical harm. Additionally, when possible, the officer should warn the suspect before opening fire. Graham dictates that any actions taken by a police officer must be “objectively reasonable” given the circumstances presented to pass Fourth Amendment scrutiny.
Just as we see the fit-the-requirement nature of dropsy testimony to avoid Mapp's exclusionary rule, we may expect to see similar accounts of officer-involved shootings in regard to Garner and Graham.
Put another way, the requirements of these cases may inadvertently provide a template for officer testilying in use-of-force cases.
Sure enough, these shootings tend to include many of the following details: a description of the officer's imminent fear for his own safety; phrases such as “the suspect made furtive movements” or “charged the officer”; the suspect exhibited a super-human resistance to non-lethal force such as physical restraint, TASER, bean-bag rounds, or even bullets; the suspect ignored repeated and explicit demands to put hands up; or the suspect “raised his weapon.” In addition, some version of the phrase “he reached for his waistband,” “he reached under the seat,” or “he was reaching for my gun” will demonstrate the officer had reason to believe the suspect was reaching for a firearm, satisfying Garner's imminent safety requirement, even though the suspect may turn out to be unarmed.
These statements paint a picture of an officer waiting until the last possible moment and exhausting all other available means before deploying lethal force. Indeed, this is what we want our officers to do when faced with mortal danger. A recollection of facts in this way—absent proof to the contrary—is often enough to clear a police officer, given the cultural inclination to give police the benefit of the doubt and the case law currently governing use-of-force incidents.
Surely, sometimes those facts recited in these investigations are entirely true. But given the relative uniformity of testimony in case after case, it is unreasonable to believe each officer is following the guidelines time after time.
The quick-to-violence escalations we see on video of officer-involved shootings and other uses of force unambiguously confirm this. Add the continued patterns of abuse in minority communities, the resentment that treatment engenders, and the disproportionate rate at which people of color are shot by police, the numerous protests around the country demonstrate a concentrated and growing skepticism the police narratives in use-of-force incidents.
One may wonder how exactly these stories acquire such relative uniformity across jurisdictions, and whether testilying has, in fact, bled into use-of-force cases.
In his grand jury testimony, then-Ferguson police officer Darren Wilson recounted that he methodically and rationally went through the checklist of possible non-lethal defenses against his alleged attacker Michael Brown as he was in imminent fear for his own life. Perhaps that's true.
But Wilson also testified:
“Yeah, just from what I have been told about the incident originally, is that you are supposed to have 72 hours before you are actually officially interviewed, recorded statement and all of that. You tend to remember more through a couple sleep cycles then what you do as soon as it happens. It is a traumatic event, a lot of details kind of come as one detail.”
Police officers may receive such “cooling off” periods before giving statements in criminal or internal investigations of which they played a role. Although not codified in Missouri law, this period is just one aspect of a broader program of police protection known as “law enforcement officers' bills of rights.” These bills of rights are only statutory in a handful of states, but various protections in them are operative in many jurisdictions as standard operating procedure.
Among the other benefits afforded to police officers is the right to union representation at all questioning by police authorities. This means that during this cooling off period, the officer may discuss the matter with union representatives and, presumably, they will work together to provide the best possible story for the investigators. Such a story would necessarily align with the requirements of Graham and Garner.
Whether Wilson was given this time after initial questioning as a matter of collective bargaining agreement or professional courtesy, it's fair to say most civilian shooting suspects wouldn't hear a detective say, “Go home, sleep on it for a couple days—oh, here's the number of a good defense lawyer—and come back when you get your head right.”
Given all this, that Wilson's testimony about the events that led to Michael Brown's death read like a checklist of the most menacing and dangerous behavior imaginable by Brown and, alternatively, that Wilson himself calmly considered and then exhausted every possible non-lethal option before opening fire cannot be surprising.
Again, it could all be true, but the people of Ferguson have plenty of reasons to doubt it.
Positive framing of events so requires no malice, it is natural that someone and his counsel would paint his actions in the best possible light. But it is important to remember that our criminal justice system is based on an adversarial system—prosecution and defense before a neutral arbiter—and prosecutors who regularly depend on police officers as their allies in court are naturally less likely to challenge the credibility of those officers when one of them is accused of wrongdoing.
Moreover, as Garner shows, a finding against the officer further exposes the department and government to costly lawsuits, thereby increasing potential political pressure to exonerate the officer.
In short, police officers are afforded extra protections in use-of-force incidents and, additionally, are less likely to face anyone within the criminal justice apparatus who will strongly challenge their version of events. This creates an environment that implicitly tolerates inappropriate uses of force because of the diminishing likelihood of negative repercussions for those actions.
Police have a dangerous job. Undoubtedly, officers face deadly situations and can be wholly justified in their use of lethal force. And it would be going too far to say that police lawyers, unions, and prosecutors knowingly suborn police perjury.
However, the incentives in jurisdictions all over the country encourage officers to lie, not only in their day-to-day work, but also when their actions result in violence against the public.
The criminal justice apparatus has yet to seriously address police lying in most cases, let alone when police themselves are subjects of criminal investigations. Thus, police officers are incentivized to lie and their institutions are incentivized to protect their officers in use-of-force incidents.
This results in more injustice, less trust in the police, and more dead civilians.
