Taking on testifying: The prosecutor's response to in-court police deception

Criminal Justice Ethics

Volumn 18, Issue 1, 1999, Pages 26-40

  Cunningham, Larry ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 45249106313     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.1999.9992064     Document Type: Article

References (147)

1. See 2 TRIAL OF QUEEN CAROLINE 8 (J. Nightingale ed. 1821) ([A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.)
2. S. GILLERS, REGULATION OF LAWYERS 345-368 (5th ed. 1998) (outlining the debate about the adversary system). 2 Some police officers attempt (erroneously) to justify testilying by arguing that the use of lies to convict those they know are guilty promotes truth seeking because then the guilty are not set free.
3. See infra notes 49-72 and accompanying text.
4. See COMMISSION TO INVESTIGATE ALLEGATIONS OF POLICE
5. CORRUPTION AND THE Anit-Corruption PRACTICES OF THE POLICE
6. DEPARTMENT, CITY OF NEW YORK, COMMISSION REPORT § 4, at 36-43 (1994) (Milton Mollen, Chair) [hereinafter cited as MOLLEN COMMISSION REPORT].
7. See infra notes 10-27.
8. See infra notes 49-72 and accompanying text for further discussion of how some officers justify testilying.
9. See BLACK'S LAW DICTIONARY 1139 (6th ed. 1990).
10. See infra note 69 and accompanying text.
11. See Barker &Carter, "Fluffing Up the Evidence and Covering Your Ass: Some Conceptual Notes on Police Lying, 11 DEVIANT BEHAVIOR 61 (1990).
12. See, e.g., Rosen, The Perjury Trap, NEW YORKER, Aug. 10, 1998, at 28.
13. A.M. DERSHOWITZ, REASONABLE DOUBTS: THE O.J. SIMPSON CASE AND THE CRIMINAL JUSTICE SYSTEM 55 (1996) [hereinafter cited as A. DERSHOWITZ, REASONABLE DOUBTS].
14. See Slobogin, Testilying: Police Perjury and What To Do About It, 67 U. COLO. L. REV. 1037,1043 (1996)
15. see, e.g., Commonwealth v. Lewin, 542 N.E.2d 275 (Mass. 1989).
16. See Chin and Wells, The Blue Wall of Silence As Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 U. PITT.L. REV. 233 (1998)
17. see, e.g., People v. Berrios, 270 N.E.2d 709 (N.Y. 1971)
18. People v. McMurty, 314 N.Y.S.2d 194 (N.Y.C. Crim. Ct. 1970).
19. See J. KLEINIG, THE ETHICS OF POLICING 146 (1996).
20. See A. DERSHOWITZ, REASONABLE DOUBTS, supra note 10, at 55.
21. See Slobogin, supra note 11, at 1042.
22. See Harris, Frisking Every Suspect: The Withering of Terry, 28 U.C. DAVIS L. REV. 1, 32 (1994).
23. See MOLLEN COMMISSION REPORT, supra note 3, at 38
24. Sexton, Jurors Question Honesty of Police, N.Y. TIMES, Sept. 25,1995, at B3.
25. See MOLLEN COMMISSION REPORT, supra note 3, at 38.
26. See Sexton, supra note 19, at B3 (noting that [i]n Brooklyn, nearly 40 percent of criminal prosecutions involve drug or gun cases, and the vast majority of those cases are built exclusively on the testimony of police).
27. 22 314 N.Y.S.2d 194,195 (N.Y.C. Crim. Ct. 1970) (For several years now, lawyers concerned with the administration of criminal justice have been troubled by the problem of ' dropsy ' testimony.).
28. Id. at 196.
29. Id. at 198.
30. Id. at 195.
31. Reitz, Testilying as a Problem of Crime Control: A Reply to Professor Slobogin, 67 U. COLO. L. REV. 1061 (1996)
32. see also Wolchover, Police Perjury in London, 136 NEW L.J. 181 (1986).
33. See Wolchover, supra note 28, at 181.
34. See generally J. KLEINIG, supra note 13, at 67-80.
35. A.M. DERSHOWITZ, THE BEST DEFENSE, at xxi (1982) [hereinafter cited as A. DERSHOWITZ, THE BEST DEFENSE].
36. Zales, Reasonable Doubts: The O.J. Simpson Case and the Criminal Justice System, 69 Wis. LAW. 37 (Dec. 1996) (book review).
37. See Reitz, supra note 28, at 1065.
38. 270 N.E.2d 709 (N.Y. 1971).
39. Id. at 713.
40. SPECIAL COMM'N ON CRIMINAL JUSTICE IN A FREE SOC'Y, CRIMINAL JUSTICE SECTION, AMERICAN BAR ASS'N, CRIMINAL JUSTICE IN CRISIS: A REPORT TO THE AMERICAN PEOPLE AND THE AMERICAN BAR ON CRIMINAL JUSTICE IN THE UNITED STATES: SOME MYTHS, SOME REALTIES, AND SOME QUESTIONS FOR THE FUTURE 21 (1988) (Samuel Dash, Chair).
41. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75 (1992).
42. See Reitz, supra note 28, at 1063.
43. See Orfield, Jr, Comment, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. CHI. L. REV. 1016 (1987).
44. See id. at 1051.
45. See, e.g., A. DERSHOWITZ, REASONABLE DOUBTS, supra note 10;
46. A. DERSHOWITZ, THE BEST DEFENSE, supra note 32
47. Dershowitz, is Legal Ethics Asking the Right Questions?, 1 J. INST. STUDY LEGAL ETHICS 15 (1996) [hereinafter Dershowitz, Right Questions]
48. Dershowitz, Controlling the Cops: Accomplices to Perjury, N.Y. TIMES, May 2, 1994, at A17 [hereinafter Dershowitz, Accomplices].
49. See Wolchover, supra note 28.
50. See, e.g. Younger, The Perjury Routine, THE NATION, May 8, 1967, at 596-97.
51. See, e.g., People v. McMurty, 314 N.Y.S.2d 194 (N.Y.C. Crim. Ct.1970).
52. Id. at 195-96.
53. MOLLEN COMMISSION REPORT, supra note 3, at 36.
54. Slobogin, supra note 11, at 1059.
55. See A. DERSHOWITZ, REASONABLE DOUBTS, supra note 10, at 42
56. A. DERSHOWITZ, THE BEST DEFENSE, supra note 32, at xxi
57. J. KLEINIG, supra note 13, at 146
58. MOLLEN COMMISSION REPORT, supra note 3, at 37
59. Slobogin, supra note 11, at 1044.
60. See Taylor, Jr., For the Record, AMERICAN LAWYER, Oct. 1995, at 72 ([The Exclusionary Rule] sets up a great incentive for people to lie.) (quoting Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit).
61. People v. Defore, 150 N.E. 585,587 (1926) (Cardozo, J.).
62. 367 U.S. 643 (1961). Mapp held that evidence illegally obtained by state law enforcement officers must be excluded from trial. It was an application of the Exclusionary Rule that had been in force in federal court since Weeks v.United States, 232 U.S. 383 (1914).
63. See Comment, Effect of Mapp v. Ohio on Police Search and Seizure Practices in Narcotics Cases, 4 COL. J. LAW & Soc. PROBS. 94 (1968).
64. See A. DERSHOWITZ, REASONABLE DOUBTS, supra note 10, at 42.
65. See Slobogin, supra note 11, at 1044.
66. See A. DERSHOWITZ, REASONABLE DOUBTS, supra note 10, at 42.
67. Id. One of the dangers of such draconian means of law enforcement is that innocent people will falsely confess.
68. See Slobogin, supra note 11, at 1038-39.
69. See Neuhard, Foreword: The Right to Counsel: Shouldering the Burden, 2 T.M. COOLEY J. PRAC. & CLINICAL LAW 169,169 (1998).
70. Cloud, The Dirty Little Secret, 43 EMORY L.J. 1311 (1994) [hereinafter cited as Cloud, Dirty Little Secret].
71. See Sexton, supra note 19, at B3.
72. See Slobogin, supra note 11, at 1038-39.
73. See generally S. GILLERS, supra note 1.
74. 66 MOLLEN COMMISSION REPORT, supra note 3, at 35.
75. id. at 29.
76. Chin & Wells, supra note 12, at 246-247.
77. Green v. Scully, 850 F.2d 894 (2d Cir. 1988) (verbal deception in confessions is not unconstitutional).
78. Florida v. Cayward, 552. So. 2d 971 (Fla. App. 1989) (creation of fake documentary evidence for use in confession unconstitutional).
79. J. KLEINIG, supra note 13, at 149.
80. id. at 68-70.
81. id. at 147.
82. A. DERSHOWITZ, REASONABLE DOUBTS, supra note 10, at 50 74
83. id. at 48;
84. J. KLEINIG, supra note 13, at 148 (Although the courtroom may be an alien environment for the police officer, it can be made easier by a friendly prosecutor. Police and prosecutors are often on the same side, and it can sometimes be as important to the prosecutor as it is to the police that a conviction is secured.... [P]ressure or encouragement to engage in some form of testimonial deception may come from the prosecutor's office.);
85. MOLLEN COMMISSION REPORT, supra note 3, at 42 (Members of the law enforcement community, and particularly defense attorneys, told us that the same tolerance is sometimes exhibited among prosecutors. Indeed, several former and current prosecutors acknowledged-'off the record' - that perjury and falsifications are serious problems in law enforcement that, though not condoned, are ignored.);
86. Chin & Wells, supra note 12, at 261 (Police criminality, including police perjury, even where guilt is clear, has not traditionally been dealt with aggressively by prosecutors.);
87. Cloud, Dirty Little Secret, supra note 62, at 1311-12 ([PJrosecutors... know that police officers lie under oath.);
88. Cloud, Judges, Testilying, and the Constitution, 69 S. CAL. L. REV. 1341, 1353 (1996) (Others are responsible for dealing with the problem as well. Prosecutors are duty-bound to take steps to insure that their police witnesses obey the law, and not to sponsor witnesses who commit perjury.) [hereinafter cited as Cloud, Judges];
89. Dershowitz, Right Questions, supra note 43, at 23 (The time has come to shift the focus back to prosecutors. The time has come for the courts to understand that they are a serious part of the problem.);
90. Hentoff, When Police Commit Perjury, WASH. POST, Sept. 5, 1985, at A21;
91. Rudovsky, Why It Was Hands Off on the Police, PHILA. INQ., Aug. 28,1995, at A7. This is also the case in London.
92. Wolchover, supra note 28, at 183 (... the casual and matter of fact way in which the Bar tends to refer to police perjury. It was regarded as a comonplace. Indeed, it is almost as if this state of affairs is not in the least regretted since it provides so much of their bread and butter.).
93. Orfield, supra note 39. His results, although criticized scientifically by other authors, remain alarming.
94. Id. at 109.
95. id. at 112.
96. Dershowitz, Police testilying must not be tolerated, BOSTON GLOBE, NOV. 15, 1995, at A27 (paraphrasing NYPD Commissioner William F. Bratton, When a prosecutor is really determined to win, the trial prep procedure may skirt along the edge of coercing or leading the police witness. In this way, some impressionable young cops learn to tailor their testimony to the requirements of the law.).
97. Krauss, Bratton Announces Plan to Train Officers to Testify, N.Y. TIMES, Nov. 15, 1995, at B3 (comparing comment by Staten Island Assistant District Attorney David W. Lehr that police learn to testilie from aggressive trial preparation by prosecutors who will win at any cost with response by Queens District Attorney Brown, I don't believe that happens in Queens County, and I would not tolerate it from any assistant working for me.).
98. Orfield, supra note 39, at 111;
99. infra note 23 and accompanying text for discussion of use of boilerplate testimony.
100. MOLLEN COMMISSION REPORT, supra note 3, at 37.
101. AMERICAN BAR ASS'N, STANDARDS RELATING TO PLEAS OF GUILTY 1-2 (1st ed. 1968).
102. MOLLEN COMMISSION REPORT, supra note 3, at 37.
103. A. DERSHOWITZ, REASONABLE DOUBTS, supra note 10, at 57 (police perjurers have an ace in the hole-[t]hey can testify against the very prosecutor's office that is empowered to arrest them. That is why so few cops are ever indicted for perjury.).
104. Chin & Wells, supra note 12, at 261-262.
105. id. at 263.
106. Dershowitz, Right Questions, supra note 43, at 17.
107. Berrios, 270 N.E.2d at 709. The New York Court of Appeals disagreed and put the burden on the defendant.
108. MOLLEN COMMISSION REPORT, supra note 3, at 42.
109. Krauss, supra note 80, at B3.
110. Sexton, supra note 19, at B3.
111. Petite v. United States, 262 F.2d 788 (4th Cir. 1959), remanded on other grounds, 361 U.S. 529 (1960).
112. 18 U.S.C. § 1621 (1994).
113. Bronston v. U.S.,409 U.S. 352 (1973).
114. 629 F. Supp. 1474 (S.D.N.Y. 1986).
115. 262 F.2d 788 (4th Cir. 1959), remanded on other grounds, 361 U.S. 529 (1960).
116. discussion supra note 89 and accompanying text, describing instances in which prosecutors may be so close to the police that they too share the Machia-vellian justification for testilying.
117. This is the solution that Richard Hemley, of the New York Civil Liberties Union, advocated.
118. Hentoff, supra note 74, at A21.
119. MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3(a) (1983);
120. accord AMERICAN BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE, Standard 3-5.6(a) (1992) (A prosecutor should not knowingly offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses, or fail to seek withdrawal thereof upon discovery of falsity.).
121. MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3(c) (1983) (emphasis added).
122. 18 U.S.C. 1622 (1994).
123. Petite, 262 F.2d at 794.
124. MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3(c) (1983).
125. Defore, 150 N.E.at 587.
126. S. GILLERS, supra note 1, at 376 ([T]he paradigmatic example has been the perjury of a criminal defendant.).
127. Dershowitz, Right Questions, supra note 43, at 20.
128. M. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM (1975).
129. He concludes that a defendant's right to counsel trumps the prohibition against using perjured testimony and that defense counsel should be allowed to put a criminal defendant on the stand, examine him in a normal fashion, and permit the introduction of perjury before the court.
130. Some states are in agreement as a matter of state constitutional law.
131. MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3 cmt.12 (1983).
132. As a matter of federal constitutional law, a defendant does not have the right to testify falsely.
133. Nix v. Whiteside, 475 U.S. 157 (1986).
134. AMERICAN BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE, Standard 4-3.26(a) (1992).
135. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1983).
136. The ABA does not support the use of this tactic.
137. AMERICAN BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE, Standard 4-3.2(b) (Defense counsel should not instruct the client or intimate to the client in any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take action which would be precluded by counsel's knowing of such facts.). There is no corresponding duty for prosecutors.
138. Berger v. United States, 295 U.S. 78,88 (1935).
139. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.1 cmt. 5 (1983).
140. The ABA Standards for Criminal Justice are in accord: Standard 3-3.4 requires prosecutors to take reasonable care that their investigators are adequately trained.in Fourth Amendment law. The Standard recommends that investigators should consult with prosecutors in close or difficult cases."
141. AMERICAN BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE, Standard 3-3.4(a) (1992).
142. MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3, cmt.ll (1983).
143. Nix, 475 U.S. at 171.
144. Ironically, however, zero-tolerance policies themselves may be partially to blame for an increase in perjury and other in-court deception. The pressure from superiors to make arrests may be translating into pressure to lie and fabricate evidence.
145. AMERICAN BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE, Standard 3-3.9(a) (1992).
146. Prosecutors and police are often in an uneasy working relationship; neither quite trusts the other. My impression in talking to police officers is that they consider many prosecutors to be naive kids with little world experience, their only qualification being a J.D. degree. Perhaps that stereotype is true in some cases. Regardless, the fact that these kids could be prosecuting police officers-the good guys-could only worsen whatever feelings of resentment prosecutors and police feel for each other.
147. MOLLEN COMMISSION REPORT, supra note 3, at 36.