Gideon wrote of a trial in which the ticketing officer either lied about facts, or simply made something up about an encounter he could not remember. He concluded:
What’s the likeliest scenario? I’m going with “he has no actual memory and made something up”. One might say, in this case it’s not that big a deal. Yes, there is a conviction, but it’s a traffic violation and the penalty is a fine. But it is indicative of a greater problem, which has far more serious impact in felony trials. Exaggerations are routine, blamed on bad memory. Sometimes they’re written off as harmless, but never should be. Witnesses have to be held to the highest standard, for in criminal cases, someone’s liberty hangs on the veracity of their statements. The State is often quick to prosecute lay witnesses that perjure themselves, but rarely do you hear of the law enforcement official that is similarly charged.Gideon linked to Christopher Slobogin's law review article about the subject. It's a must read for defense lawyers. Slobgin commented on the reasons for the police lying in court:
The most obvious explanation for all of this lying is a desire to see the guilty brought to "justice." As law enforcement officers, the police do not want a person they know to be a criminal to escape conviction simply because of a "technical" violation of the Constitution, a procedural formality, or a trivial "exculpatory" fact. As Skolnick puts it, the officer "lies because he is skeptical of a system that suppresses truth in the interest of the criminal." A related reason for police dissembling is the institutional pressure to produce "results," which can lead police to cut corners in an effort to secure convictions. Peer practice may also play a role. One reason Skolnick says police perjury is "systematic" is that "police know that other police are perjuring themselves.Slobogin also noted:
Prosecutors put up with perjury because they need a good working relationship with the police to make their cases. Additionally, at bottom, they probably agree with the police that the end justifies the means. Judicial acquiescence to perjury can be explained to some extent by prosecutorial failure to make the case for it. But defense attorney arguments and the judge's own observations can provide plenty of evidence of testilying in at least some cases. To the extent judges ignore obvious perjury, it is probably for the same reasons attributable to the prosecutor: sympathy for the police officer's ultimate goal and, as Professor Morgan Cloud put it, "tact" — the fact that "[j]udges simply do not like to call other government officials liars — especially those who appear regularly in court.This is important stuff. Not only recognizing it exists but understanding the reasons behind it. Face it, the police and prosecutors want to win. Especially when prosecuting someone they believe is a "scumbag" and guilty of something anyway.
Significantly, the Texas Legislature attempted to take a bite out of this problem some years ago when it passed SB 1195. The bill required officers to have either probable cause or obtain written or recorded oral consent before they could search a vehicle. Current law did not require police to tell drivers that they could refuse a search if no probable cause existed. However, Governor Rick Perry vetoed the bill. In a veto statement, Perry said he believed the state’s constitution and case law already provided sufficient protection from unreasonable searches. Perry said in his veto statement:
There is insufficient information now to determine whether signed or taped consent requirements place too onerous a burden on law enforcement or provide additional protections to the public.What about the onerous burden of an unjust conviction obtained because a police officer made something up to provide justification for his behavior? At the time I thought how short sighted Perry was for the veto. I can't count how many times clients told me about the police searching their vehicles without consent, but the police report showed the officer's justification for the search was consent. Had these encounters been video taped I bet we'd have beaten some of those searches. However, since nothing was recorded it was always my client's word against that of the officer. Who do you think the judge and prosecutor believed?
How do we fight this problem of the police lying in court, or making something up when they don't really remember? That's got to be a subject for a future post.