Police perjury and testilying seems to be a growing problem within the criminal justice system. The term perjury as we know it is lying or making false statements while under oath. However, police perjury can also be used with the term “testilying” which was first reported in the Mollen Commission, used by police officers in New York (Cunningham, 1999). The term testilying is still not quite clear, but the officers may have used the term to convince themselves what they are doing is morally right, and lying in court is not exactly lying, it may not be telling the whole truth, therefore serving as a middle ground. Some officers try to cover their deceptive means and covering them can make them lie in court, and this is where testilying comes in. Officers are found to use deceptive means in many stages of an investigative process such as in the investigation, interrogation, and testimonial stage of a criminal investigation.
The question that arises is what exactly are the motives behind officers using deceptive means and if their use is necessary. There is a wide range of justifications and rationalizations in which officers and their fellow officer’s provide for unlawful stops, search arrests, planting of evidence, false report writing, and perjury testimonies (Goldschmidt and Anonymous, 2008). Officers do benefit from deviance in both a personal and professional way (Goldschmidt and Anonymous, 2008). They express a firm belief that their extra legal methods are a necessary deterrent to criminal behaviour and even desired by those segments of society most victimized by criminal behaviour (Goldschmidt and Anonymous, 2008). A study conducted by Goldschmidt and Anonymous (2008) provides some answers after interviewing 10 randomly selected officers from a large urban police department as to what motives they may have in using deceptive means. This article discusses areas of an investigation process in which officers’ lie, reasons provided by officers in their interviews for using deception, the perceived necessity of making the case and if there are sanctions for using deceptive means.
Police investigations can be long and difficult, and with hard and fast rules limiting police conduct may challenge common sense, and the absence of these rules can invite arbitrary and abusive conduct (http://www.lib.jjay.cuny.edu/cje/html/sample1.html). When investigating a crime, some police officers may fabricate evidence so that they can confront the suspect with false evidence of his or her guilt. The form of fabricated evidence usually involves officers informing the suspect of an accomplice identifying them, stating there is existing physical evidence such as fingerprints or DNA to confirm guilt. Another common way to get one to admit guilt of a crime is taking a polygraph test regardless of the results even though those are generally considered unreliable and invalid (Skolnick &, Leo, 1992). Goldschmidt and Anonymous (2008) conducted a study using in depth interviews with 10 non-randomly selected police officers from a large urban police department to give answers as to why officers lie. The officers were all from various ranks and assignments in the departmental setting and the confidentiality obligations prevented the authors from releasing their age, gender, race, assignment, and length of service in the force. Some officers have been found to stop people without reasonable suspicion or probable cause. A minority of the officers found that it is unacceptable for an officer to stop a subject without a reasonable suspicion, and believe that in doing so is simply wrong because it is both illegal and does not conform to the policies and regulations of their department (Goldschmidt and Anonymous, 2008). However, there were some officers who felt that it is necessary to stop individuals without any reasonable suspicion because it has to be done for the public good. One cop stated that he was preventing crime and getting drugs and guns off of the street by following his instincts and just stopping the people who he thought were dirty, and for no other reason, while he treats them with respect he also violates their rights (Goldschmidt and Anonymous, 2008). If people are to complain against officers for doing such things the complaints often are ineffective and found to be unsubstantiated even when legitimate because complainants are usually poor, and have a criminal background (Goldschmidt and Anonymous, 2008).
Another form of deception some officers take part in is planting evidence. Although many believe that it is not necessary to plant evidence in a criminal investigation because if it’s not there it’s not there (Goldschmidt and Anonymous, 2008). Goldschmidt and Anonymous (2008) found that officers believed that it is unnecessary to plant evidence because if the individual is a known active criminal, they will most likely certainly continue in their criminal way and eventually be caught. The resources of the criminal justice system are better spent on actual legitimate cases with valid evidence against offenders who actually commit real crimes. The police try to legitimize their means of deception for many reasons. Police use placebos as a means to serve in the best interest of the person duped by them such as telling lies that will not hurt them but help comfort them because they cannot help the situation otherwise, serving as a self-evident morality to them (Klockars, 1984). For police placebos to work it has to be served with some deception and the credibility of the liar, and that the lie is preserved (Klockars, 1984). More common placebos used include officers saying a loved one died a quick and painless death to their family when they know it was not like that, and in burglary cases insuring the family it was kids and not professionals, all so that it serves in the person’s best interest that are being lied to by an officer (Klockars, 1984).
Police deception also occurs at the stage of interrogation. In the past police brutality was a part of interrogation, and although it seems uncivilized to most Americans it was not long ago the American police used physical violence to get confessions out of suspects (Skolnick &, Leo, 1992). The use of force seeks to get physical control of a suspect and it can risk failure as soon as an individual tires, weakens or becomes inattentive (Klockars, 1984). Since the introduction of “Miranda” in the 1960’s, it has now become part of the American criminal justice system. The case of Miranda v. Arizona holds that an arrested person must be informed of his or her rights to remain silent, must be warned that any statement he or she does make maybe used as evidence and must be told that he or she as the right to the presence of an attorney (http://www.lib.jjay.cuny.edu/cje/html/sample1.html). The use of deception at the interrogation stage, although there are Miranda warnings in the US and Canadian Charter of Rights in Canada have to be given to a suspect in custody, the police however question suspects in a non-custodial setting which is defined more the suspects state of mind more than the location of questioning, and this is the most overlooked and deceptive strategy that they employ (Skolnick &, Leo, 1992). By interviewing in a non-custodial setting telling the suspect that he can leave at any time and having him acknowledge that he is answering their questions involuntary police can transform what is an interrogation into a non-custodial interview (Skolnick &, Leo, 1992).
A more common form of police deception is writing false reports. In the interview conducted by Goldschmidt and Anonymous (2008), the officers explained that they know very well which stories work in a probable hearing and which will not. Several officers admitted that local judges have become suspicious of the number of dropped cases, and the officers believe it is preferable to avoid using a drop case and instead use a more creative approach in writing their false reports (Goldschmid and Anonymous, 2008). Some officers stated that supervisors tell officers that a case is a ‘loser’ case the way it is written or that the officer despite the accuracy of the report had described the wrongdoing in a way that maybe subjecting himself, the department, and perhaps other officers to civil liability (Goldschmidt and Anonymous, 2008). And officers feel that in order to protect oneself from civil liability it is necessary to secure probable cause and avoid looking bad. In order to sum it up officers stated that the truth never exists, its it the truth of what really happened, what others say happened, and the story police state in their reports, but one will never find the entire truth (Goldschmidt and Anonymous, 2008).
Police officers rarely admit to perjury however evidence is the acceptability of perjury as a means to the end of a conviction (http://www.lib.jjay.cuny.edu/cje/html/sample1.html). If officers are writing false reports when the cases go to court it can come back to hurt them if they cannot get the facts of the crime right. Most officers in the interview mentioned that they would not risk lying about a big case because they believe that a big case has its own merit and will be judged fairly despite its flaws (Goldschmidt and Anonymous, 2008). Some officers felt that lying about the facts of a case would likely catch up with them in court at a later time and having to take the stand and stating those facts are accurate is committing perjury. And also once the facts do catch up with the officer, it is likely to cause embarrassment and it discredits the reputation of the officer involved (Goldschmidt and Anonymous, 2008). Often to cover up perjury, officers start to get others involved in their lies. And if officers start taking part in criminal activity and get others involved they are most likely to lie on the stand and commit perjury so that they can protect one another because of loyalty to one another. One officer who had zero tolerance for police deception, mentioned in his interview that if we are to lie in our reports and in court, we are only forcing our opinions and values on the court by not allowing them to see the truth they are entitled to see (Goldschmidt and Anonymous, 2008).
Police officers are people who are to serve and protect, but it makes some wonder why do they feel that they have to lie to get the job done when their job is to get to the truth. Each officer in the interview had their own reasons as to why they need to be dishonest in order to make a case. The officers identified some forces which move them towards the direction of engaging in dishonesty and those include avoiding restrictive laws and court decisions which includes the Miranda requirements, wanting to present a good case to the prosecutor, establishing a solid work record with good statistics for advancement or transfer to specialized unit, and wanting to establish a good name and reputation within the department and with fellow officers, thus gaining a sense of accomplishment and ego fulfillment (Goldschmidt and Anonymous, 2008). All of the forces that may motivate police dishonesty have been either for their self-fulfillment, denial of responsibility, and appealing to a higher authority. It was found that officers consider their work to be their ‘signature’ a reflection of their effectiveness as law enforcement officers and their concern is losing a case in court, or ‘looking stupid’ because of the deficiencies or weaknesses in the case (Goldschmidt and Anonymous, 2008). In the interview conducted by Goldschmidt and Anonymous (2008) he talked to one officer who felt that he would rather have his credibility challenged than his intelligence. Some of them believe that being dishonest is not only a short term benefit of making the case against an offender but instead its gaining a long term deterrent effect on crime. These officers believe that if criminals are deterred by their understanding that the police are willing to play dirty and fix the case if necessary, and if criminals knew that police played by the rules it would only invite crime.
Another motive in police dishonesty may involve peer pressure. For any officer it is their choice whether to participate in honest or dishonest acts. Some officers believe that ego and a person’s own sense of justice are the greatest contributing factors. In the study conducted by Goldschmid Anonymous (2008), one officer talked about her experience and explained how she felt she was being marginalized for not bowing to the pressure others, and she felt others did not trust or and will not come to her aid if necessary because she would not take part in dishonest acts Goldschmidt and Anonymous (2008). Some may wonder as to how officers feel about being dishonest. It is found that they have already rationalized the act, and therefore they feel no discomfort in engaging in dishonesty. It is almost second nature for some officers and just their way of doing business, because they feel in control of the situation Goldschmidt and Anonymous (2008). There may be some fear in lying when there comes a time for a court testimony. Some officers can feel discomfort which arises from the fear that between the time of the report and time of the testimony, and evidence or witnesses which might emerge that refute the false report Goldschmidt and Anonymous (2008). New officers may not know the system well enough to know how to get away with lying and would be reluctant to do so. One officer stated that it gets easier to be dishonest because officers become confident in being dishonest and their integrity is rarely challenged Goldschmidt and Anonymous (2008). The most common fear that dishonest officers may have is that the truth may come out during some time of the criminal investigation process and that the officer may suffer some punitive sanctions in the future such as suspension, termination, civil liability, or potentially criminal charges.
For those officers who are dishonest should have some face some sanctions. However it is difficult to find out if officers are dishonest in their reports or testimonies, and if they ever do face some form of sanction for their dishonesty. Some believe that verbal reprimand or verbal counselling by a supervisor and re-writing of a report would be a reasonable sanction Goldschmidt and Anonymous (2008). Officers felt that being dishonest in a courtroom testimony is serious and those who take part in that should be fired from their job, while others feel that getting caught while doing is and facing the embarrassment, damage to officer’s credibility and loss of the case is a good enough punishment for being dishonest. Any officer who does commit perjury while on the stand should face charges. An officer’s job being part of the criminal justice system is to tell the truth, and if they are going to lie, then they should face the same charges as one would face if they committed perjury.
If the criminal justice system had police officers that told the truth and were honest in all their acts, one may think what the criminal justice system would look like. In the interviews conducted by Goldschmidt and Anonymous (2008) there were numerous reasons provided by the officers whom they felt were negative consequences from absolute honesty from officers. Some of the negative consequences there would be a severe increase in reported crime, low conviction rates, more trials fewer plea bargains, and unsatisfied victims feeling no justice was served (Goldschmidt and Anonymous, 2008). Other reasons included confident criminals would prevail in an ineffective criminal justice system, increase in police frustration, loss of deterrent effect of police, and lawyers maybe out of work because of weak cases and lawyers would no longer be needed (Goldschmidt and Anonymous, 2008). For officers to be honest and be truthful when doing their work it would require them to be patient and work harder to build good cases which some may not want to do. Officers need to put their personal gains aside and become creative in their policing tactics which involves complying with the law not going against it.
Police deception is a topic that is not openly discussed or easy to obtain information on. Police officers use deceptive means in many areas of an investigative process. The questions that arise is why officers would want to lie when their job is to serve and protect and tell the truth. The interviews conducted by Goldschmidt and Anonymous (2008) provide some insight as to what motives officers may have in wanting to use deceptive means. It was found that officers had a few primary motives in using deception and those were their negative perception of the operation criminal justice system, the organizational pressures from the management and the public for productivity, personal satisfaction from presenting an identity of a productive and effective officer, and sub cultural forces such as peer pressure. The officers had their own views of what deceptive practices they thought were ok to take part in and which they would not do. Each officer has their own choice if whether they will lie and be deceptive. Although its one’s own choice, peer pressure may be something that may get officers to take part in lies or unlawful practices that they would not otherwise do. The problem with police deception is that there are no strict sanctions for police deception or perjury. When officers do not get punished or get caught they know that they can get away with lying and will continue to do so. The questions that arise are what sanctions are appropriate to take action on against officers who do not follow policies. Police officers are seen as those whom are suppose to uphold high level of integrity and when they are seen as taking part in unlawful practices, police departments may have a hard time with punishment because of department and officer reputation with the public eye watching. It is not only officers that but other officials of the system that need to work with the police so that there is trust in the system and that it works and can deter crime rather than taking means into their own hands to serve justice with deceptive means.
Cunningham, L. (1999). Taking on Testifying: The Prosecutor’s Response to In-Court Police
Deception. Criminal Justice Ethics, 18(1), 26. Retrieved from EBSCOhost.
Goldschmid, J. and Anonymous (2008). The necessity of dishonesty: police deviance, ‘making the case’, and the
public good. Policing & Society, 18(2), 113-135. doi:10.1080/10439460802008637
Klockars, C. B. (1984). Blue Lies and Police Placebos: The Moralities of Police Lying.
American Behavioral Scientist, Vol. 27, No. 4.
Skolnick, J. H., & Leo, R. A. (1992). The ethics of deceptive interrogation. Criminal Justice
Ethics, 11(1), 3. Retrieved from EBSCOhost.