No Presumption Exists For Police To Be a Liars!

Published on 01 Apr 2016 by Team

Police lying is no "little secret". Juries, particularly in our urban criminal courts, are thoroughly capable of discounting police testimony as unbelievable, unreliable, and even mendacious. Judges, prosecutors and defence attorneys report that police perjury is commonplace, and even police officers themselves concede that lying is a regular feature of the life of a cop. 

Scandals involving police misconduct brutality, corruption, criminality are regularly featured in the daily newspapers, and periodic investigation reports and Blue Ribbon commissions come up with the same conclusions police scandals are cyclical, official misconduct, corruption, brutality, and criminality are endemic, and necessarily, so is police lying to disguise and deny it.

Expected To Lie as a part of Good Practice

Police officers can be expected to omit, redact, and even lie on their police reports, sworn or unsworn it they will conceal or misrepresent to cover up corruption and brutality, they are trained to deceive citizens during investigations as part of good police practice, they will obscure facts, and even lie, to cover up the misconduct of fellow officers. "Additionally, command practice and policy gives officers every incentive to lie to cover for lack of productivity or to aggrandize themselves for recognition and promotion. And yes, police officers will commit perjury in our courts of law."

Incentive To Lie

When lies under oath, while often involving the tailoring of testimony to meet constitutional requirements, run a much wider gamut. For instance, perjury will occur to avoid a criminal conviction or civil liability when the police officer is the accused. Police will commit perjury to further the prosecution of a citizen by adding inculpatory "evidence" to better secure a conviction, to gild the lily of police conduct, or merely to sanitize the record of uncomfortable facts.

Hence, put most broadly, as long as a police officer's use of power and fulfilment of responsibilities is reviewed (whether by courts, government agencies or supervisors), and as long as such reviews are deemed by the officer as creating legal impediments to more immediate goals, he will have an incentive to lie.

Rejecting Testimony

In People v. McManus, (Sup. Ct. Kings Co., May 18, 2016, Ind. No. 2526/15), the court suppressed a large knife, automatic rifle and black taser stun gun found in a vehicle after finding the testimony of three police officers unworthy of belief.All three officers testified that they smelled the odour of marijuana emanating from a vehicle they had stopped for excessively tinted windows.

In rejecting their testimony, the court noted that no marijuana was recovered from the car or its occupants. In addition, the defendant testified that he was driving to a drug program when he was stopped. He had attended the program for 83 days and was drug-tested each time he attended the program. The court concluded that it would strain the bounds of credulity to imagine a defendant smoking marijuana on his way to a drug program where he knows he will be tested for drugs.

InPeople v. Bratton, (Sup. Ct. Kings Co. Oct. 24, 2016, Ind. No. 9868/15), the suppression court rejected the testimony of a police officer who claimed he observed the occupant of a vehicle rolling a “blunt” (marijuana cigar) as his unmarked police vehicle stopped next to the other car at the traffic signal. In addition, the court concluded that it “defied credibility” that the defendant would later toss the keys to his car to the officer to permit him to search the trunk where the defendant had secreted a handgun.

In suppressing a quantity of heroin and a gun both found on the defendant’s person, the suppression court found as unbelievable the officer’s claim that he was able to see not just a glassine envelope but both the label and stamp on it while defendant’s hand was almost closed.

Conviction Reversed

In People v. Oneill, 141 A.D.3d 606 (2d Dept. 2016), the arresting officer and his partner testified that they observed the defendant, and another male, walking down the street wearing bandanas or masks covering part of their faces.

The officer exited their vehicle and asked the men to “hold on a minute.” The arresting officer testified that, as he was standing next to the defendant, he shined a flashlight at his hands, and the defendant threw on the ground what appeared to be a clear plastic bag containing marijuana. The arresting officer testified that he then handcuffed the defendant and recovered a gun on his person.

The defendant and his companion both testified and denied wearing any kind of mask or bandana. In addition, the defendant denied possessing marijuana, or a weapon, although at some point he observed the arresting officer holding a gun by the barrel. Both the defendant and his companion had no prior arrests and were gainfully employed. The defendant’s credibility was supported by three character witnesses who testified to his propensity for truthfulness.

The Appellate Division reversed the conviction, finding that the verdict was against the weight of the evidence. The court held that an "acquittal would not have been unreasonable in light of certain facts which all cast doubt on the arresting officer’s credibility." Specifically, the officer failed to record the arrest in his memo book, failed to call in the arrest, failed to voucher the bandana or masks, and lost his case file.

The court also noted that two years earlier it had reversed a conviction based upon the testimony of the same officer.5 In that case, the officer lost his memo book and delayed sending evidence to the police laboratory for analysis.

Police Office's as a Public Prosecutor

Police officers themselves used to act as prosecutors. This blurring of lines between the prosecution and police was problematic on many counts. It was observed by the law commission that the police had a tendency to focus on securing convictions, which made it difficult for them to exhibit the degree of detachment found necessary for the role of a prosecutor.

In the words of the Law Commission: “In undertaking the prosecution the State is not actuated by any motives of revenge but seeks only to protect the community. There should, therefore, be an unseemly eagerness for, or grasping at a conviction. A public prosecutor should be personally indifferent to the result of the case. His duty should consist only of placing all available evidence irrespective of the fact whether it goes against the accused or helps him, in order to aid the court in discovering the truth.”

Section 25 of the CrPC fixed this by explicitly stating that police officers would not be not eligible for appointment as assistant PPs. In doing this, the legislature recognised the importance of the independence of the prosecution from the investigative arm of the state, a demarcation that has also been emphasized by the courts.

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