An exclusionary rule for police lies.

• Author: Wilson, Melanie D.

INTRODUCTION

In July 2008, two officers of the Los Angeles Police Department took an oath in a criminal jury trial and testified that the defendant, who was charged with possessing cocaine, had run from them before throwing a "black box" that concealed both powder and crack cocaine. (1) Normally, the officers' testimony would have been sufficient to convict the defendant. However, this time the officers' testimony fell short. Unknown to the police, the whole incident had been captured on a grainy video from a surveillance camera mounted on a nearby apartment building. (2) The video, which the defendant's lawyer produced for the first time at trial, "sharply contradicted the testimony of [the] two police officers." (3) As a result of the tape, the prosecutor moved to dismiss the case, and the judge agreed. (4)

Relying on the video evidence, the defense attorney declared that the cocaine was not the defendant's and that the case had been "completely trumped up." (5) In other words, the defense claimed that the defendant "didn't do it." The prosecution stopped short of conceding the defendant's innocence but admitted: "There do appear to be sufficient inconsistencies to render a verdict beyond a reasonable doubt unlikely in this case." (6) In the prosecutor's view, the video evidence did not establish substantive innocence, but it revealed that police violated constitutionally required procedures. In short, everyone (prosecutor, defense lawyer, and judge) agreed that the video proved that the two officers had lied. (7) After all, everyone could see (and hear) the lies for themselves. Unfortunately, this scenario--police telling lies--is all too common. (8)

Although the Supreme Court has often said that truth is an imperative to justice, (9) we now know that police officers, (10) the key investigative component in our criminal justice system, lie, even under oath. (11) i How often do the police lie? No one knows for sure, but credible reports of police lies are common. In addition to police lies captured on video and audio recordings, trial judges have become increasingly skeptical about police testimony in suppression matters. (12) Juries have found police lies using a beyond-a-reasonable-doubt standard. (13) Some judges, prosecutors, and criminal defense lawyers believe that the police often lie successfully at pretrial hearings to avoid application of the exclusionary rule. (14) Commissions have convened, studied, and documented police lies. (15) And there is circumstantial evidence of police lies, along with other police misconduct, from the work of the Innocence Project and a recent empirical study conducted by Brandon Garrett. (16)

Our legal system treats the police as if they are impartial fact gatherers, trained and motivated to gather facts both for and against guilt, rather than biased advocates attempting to disprove innocence, which is the reality. Because of its partiality in favor of officers, the criminal justice system lacks the appropriate structure to expose and effectively deter police lies, which distort the truth about criminal or unconstitutional conduct.

This Article, presented in three parts, argues that the current system should be changed to provide the structure necessary to promote honest police work. Specifically, it urges a modification to the exclusionary rule that will encourage police to tell the truth about the lies they tell and the potentially unconstitutional conduct they commit. In other words, it advocates for an exclusionary rule tailored especially for police lies.

Part I catalogs the evidence that police lie. It illustrates that police lies are a prevalent part of many American criminal prosecutions. It also demonstrates that some of these lies interfere with accurate substantive outcomes, meaning that some innocent people have been wrongly convicted because of the lies. Part I further demonstrates that truth-distorting lies are decaying the public's confidence in the integrity of our criminal justice system and reducing the protections supposedly guaranteed by the federal Constitution, jeopardizing, in the long-term, the likelihood that juries and judges will continue to believe the government's evidence in criminal cases.

Part II considers what the Supreme Court has said, expressly or implicitly, about police lies, the exclusionary rule, and other procedural rules that advance or inhibit police dishonesty, and it examines other components of our criminal justice process that promote police lies. It explains that the Supreme Court's precedent reveals that the Court is ambivalent about police lies. Some of the Court's precedent discourages such lies and other decisions show indifference toward them.

The third Part differentiates between two distinct types of police lies: (1) those that expose the truth; and (2) those that distort it. It urges the adoption of a modified exclusionary rule for criminal cases that hinge on police credibility. It argues for maintenance of the status quo for cases involving police lies that expose the truth regarding a defendant's criminal behaviors but contends that harsher, more certain, and immediate consequences must follow when a judge or jury finds significant evidence that an officer lied to distort the truth about a defendant's actions, statements, or culpability, or about the officer's own conduct. Finally, in cases in which the police "come clean" about lies they tell suspects or potentially unconstitutional conduct they commit when trying to "catch the bad guy," the modified exclusionary rule proposed here provides for significantly more judicial and citizen oversight to assess whether the ends of justice necessitated those police lies, given the facts and competing interests in the case.

1. CATALOGING THE EVIDENCE AND EFFECTS OF POLICE LIES

   Although few would debate that truth is crucial to an effective and reliable criminal justice system, we know from anecdotal evidence that witnesses occasionally lie and that some of these sworn witnesses are law enforcement officers. (17) We also know that police officers regularly lie during investigations (sometimes with the imprimatur of the Supreme Court) to gain the trust of a suspect or to convince a suspect to admit criminal behavior. (18) On occasion, the evidence suggests, officers lie to cover up wrongdoing, either their own or that of fellow officers. (19) And, it seems, police often justify their lies by convincing themselves that lying will ensure that a guilty and dangerous defendant is not released or acquitted. (20) This section examines the proof that police lie (both in and out of court) and considers some of the implications of those lies.

   1. The Evidence of Police Lies

      For several decades, evidence of police lies has been mounting. The evidence can be found on video and audio recordings, in findings by judges, in jury verdicts, and even in empirical studies.

      1. Evidence Captured on Video and Audio Recordings

         The growing pervasiveness of technology in the United States has exposed police lies that would have otherwise gone unnoticed or proven. Such technology has the potential to reveal much more police dishonesty. Consider this recent example.

         In the summer of 2008, a New York tourist videoed a police officer pushing a bicyclist off of his bike during an organized ride. (21) Although the video shows Officer Patrick Pogan going out of his way to physically assault the cyclist, Pogan arrested the biker and charged him with attempted assault, disorderly conduct, and resisting arrest. (22) In the official criminal complaint lodged by Pogan, he claimed that the biker "rode straight into him." (23) In direct contrast to the officer's assertion, the video shows the cyclist swerving to avoid Pogan. Thus, the video establishes that Officer Pogan lied about his conduct and that of the biker. After the tourist posted the video on YouTube, (24) a grand jury indicted Pogan for two felonies: filing a false instrument and falsifying business records. (25)

         Police lies have been caught on video in other cases too. There is the incident fortuitously captured by a nearby recording device, which is referenced at the start of this Article. (26) And in a separate incident, in Atlanta, Officer Terrance Alexander was videotaped pulling a middle-aged woman, Diana Dictrich-Barnes, from her car, throwing her to the ground, and handcuffing her. Although the officer claimed Dictrich-Barnes struck him with her car door, video revealed that, at most, the mirror of her car may have barely bumped the officer when he ordered her to move her car from the front of the Atlanta airport. (27)

         Video from the 2004 Republican National Convention revealed that police lied when they claimed that they arrested protesters for unrest and resisting arrest. Video of the arrests refuted the officers' claims. (28) In May of 2009, five police officers in Birmingham, Alabama were fired after video surfaced revealing that they punched, kicked, and struck an unconscious suspect with a nightstick. (29) And in February, 2009, after a traffic accident in which an officer was to blame, several members of the Hollywood, Florida, Police Department were caught on a dashboard camera rehearsing a story to blame the incident on a twenty-three-year-old woman, the driver of the car the officer struck. (30) In the audio portion of the recording, an officer can be heard saying, "We're going to bend this a little." And he says, "I don't lie and make things up, ever, because it's wrong, but if I need to bend it a little to protect a cop, I'll do it." Several other officers can be heard agreeing to "bend" the narrative of what happened. One officer can be heard agreeing to take photos of the scene so that it appears that the young woman caused the incident. (31) In fact, the internet is filled with videos in which the police appear to be caught telling lies. (32)

         Technology and its widespread public availability provide increasing...