Police, plus perjury, equals polygraphy.

• Author: Dripps, Donald A.

INTRODUCTION

Criminal procedure scholars devote themselves to debating the proper scope of the Constitution's limits on police methods. The application of constitutional rules, however, depends entirely on how facts are found on motions to suppress or at trials of civil rights actions. Police perjury, if accepted, can defeat any constitutional rule. Thus, the debates about stop-and-frisk, automobile searches, and police interrogation have a scholastic quality; no matter what rule appellate courts adopt, police may circumvent that rule by persuading trial courts to accept an incorrect account of the facts.

If police perjury were rare, academic discussion of it would lose little relevance. Unfortunately, criminal procedure scholars agree that police perjury is not exotic. Police perjury has been called "pervassive"(1) "an integral feature of urban police work,"(2) and the "demon in the criminal process."(3) This essay suggests a new strategy for dealing with this problem.

My thesis holds that courts deciding suppression motions should admit expert testimony based on polygraph examinations, and draw an adverse inference from the failure to introduce such evidence, whenever the outcome of the dispute depends on the credibility of conflicting testimony given by the defendant and the police. To avoid confusion, I would like to set out at the beginning the precise approach I defend.

At the close of the testimony at a hearing on a suppression motion, upon motion by either party or sua sponte, the court should determine whether the outcome depends on resolving a conflict in the testimony on the basis of credibility. If the court finds that the issue turns on credibility, the court should inquire whether either party is willing to supplement the record with a polygraph examination of the party's witness or witnesses. Each party could elect to supplement the record in this way, but the decision to do so would have to be made at that time. Neither side could wait for the outcome of the other's examination; and the results of any examination would be admissible regardless of the result.

Examinations would need to be administered by a qualified examiner, after notice to the opposing party that enabled the opposing party's representatives to attend the examination. The judge would not be bound by the results of the polygraph examinations, but could consider them along with all the evidence in the case. The results, however, would become part of the record, and in an appropriate case might be considered, along with all the circumstances of the case, by an appellate court in deciding whether the factual findings below were clearly erroneous.

My argument proceeds through four stages. First, I illustrate the corrosive effects of swearing contests involving the police by discussing the case of Florida v. Bostick.(4) Second, I demonstrate that the available evidence strongly indicates that police perjury is a widespread phenomenon. Third, I show that polygraph examinations can make a powerful contribution towards determining the truth, and that the usual reasons for excluding polygraph evidence from judicial proceedings do not apply in the context of swearing contests in which one of the witnesses is a police officer. As the Fifth Circuit recently recognized in United States v. Posado,(5) the Supreme Court's Daubert decision,(6) which liberalized the standard for admissibility of expert testimony, creates an opportunity for introducing polygraph evidence in the suppression context. Finally, I submit that even if polygraph evidence were of doubtful reliability, its admissibility to resolve swearing contests would give police departments a powerful incentive to minimize the number of swearing contests by making available reliable proof of what happened during an encounter between the police and a citizen.

2. The Perverse Dynamics of Swearing Contests Involving the Police

   Those who follow criminal procedure developments in the Supreme Court will remember Florida v. Bostick, where the Court upheld the constitutionality of so-called "bus sweeps." I focus on this decision because it provides a textbook example of how swearing contests at a suppression hearing can undermine the enforcement and distort the development of substantive rules. Indeed, the very fact that good lawyers only think of Bostick as a case about substantive Fourth Amendment law suggests that we now regard police control of the facts as the normal state of affairs. My concern here, however, is not with the merits of the Bostick decision, but with the Hobson's choice the judiciary faces when the police give an improbable account of the facts that led to an arrest.

   Terrance Bostick was an Atlanta-bound passenger on a Grey-hound bus that made a stop in Fort Lauderdale.(7) Two Broward County Sheriff's Department officers, Detective Nutt and Detective Rubino, boarded the bus.(8) The driver, who knew that the police had a drug-interdiction policy of boarding randomly selected busses, got off and closed the door.(9)

   The officers found cocaine in a bag that belonged to Bostick.(10) He moved to suppress the cocaine on Fourth Amendment grounds. At the suppression hearing, the officers testified that they advised Bostick that they were police officers prior to the search, and that Bostick consented to the search that discovered the drugs.(11) However, Bostick testified that he never gave consent, although he also testified that he did not affirmatively protest or object to the search.(12)

   There were two other witnesses to the search, both young men.(13) Both witnesses were summoned but neither appeared to testify at the suppression hearing.(14) Thus the case presented a common situation, in which the facts governing a claim of constitutional right depend on whether one believes the account of the police or the account of a criminal defendant.

   On its face, the police account is highly improbable. Why would a cocaine smuggler consent to a search that could send him to prison for decades? We can suppose that criminals are not rocket scientists and that Freud's insights apply to criminals no less than to anyone else. But even if a self-destructive error of the sort posited by the police is possible, it is not probable.

   Consider the words of judge Seay, who ruled on the suppression motion:

   Yes. Well, whatever the issue, he [Judge Moe, who had ruled the bussweep tactic unconstitutional in a similar case] didn't like the whole picture, which I'm not crazy about, either, but when you've got sworn testimony from two police officers and they're testifying, sometimes you don't have much other than that and you have to go along with the sworn testimony but it does really stretch the imagination when they're standing there in an aisle and talking to someone and just checking all the bags. It's very intimidating even if there is consent.(15)

   Judge Seay's remarks nicely capture the unpleasant situation facing trial judges faced with swearing contests at suppression hearings. The police story may be improbable, but police officers must be presumed honest, and the defendant's word is worthless.

   In a swearing contest, the trial judge can discredit the police testimony only branding the police as liars and accepting the word of an apparent felon. Typically the police, rather than the felon, will be telling the truth, but in a significant number of cases the police account is false.(16) Nonetheless judges decide cases one at a time, so the police almost always win the swearing contest.

   The police are aware of this bias. The resulting incentives are exquisitely perverse. First, police officers indifferent to constitutional rights can violate them with impunity. I cannot prove that the Broward County officers deliberately planned to roust every black kid on those busses and then lie about consent whenever they found drugs. No one, however, can prove the opposite.

   While the scope of Fourth and Fifth Amendment rights, and the purposes of the exclusionary rule, are much debated, the prevailing view is that the exclusionary rule is designed to deter unconstitutional behavior,(17) especially, if not exclusively, when the police act in bad faith.(18) But how can police acting in bad faith be deterred, if they know that their word will be accepted by the courts? Because almost any meritorious suppression motion can be defeated by incorrect factual findings, police knowledge that courts will usually believe police perjury takes a serious bite out of the rule's deterrent effect.

   Second, and even more troubling, is that the acceptance of police perjury is known not just by individual officers, but by police department policy-makers. They know that police testimony will typically be believed. Why, then, should they take measures that would enable courts to determine the facts independently of police testimony? Why should they require citizen observers or video cameras in patrol cars? Why should they - almost thirty years after Miranda v. Arizona(19) - finally decide to record interrogations? The police cannot win any cases with these procedures, they can only lose cases with them.

   The mischief continues on appeal. An appellate court cannot second-guess trial court credibility rulings. So the appellate courts must make rules based on the false assumption that the facts will be accurately determined below (the usual approach these days, as evidenced by Bostick) or by extending constitutional rights so that the police will have difficulty denying the facts that set up the rights. The Fourth Amendment warrant requirement, and the Miranda decision, are examples of this latter approach.

   Neither approach is very attractive. Ignoring police perjury with the bland assurance that trial courts can ferret it out is to mock the Constitution with hypocrisy. Trying to define rights that can be successfully asserted no matter what testimony is believed is both irrational and futile. It is irrational, because...