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Police ‘testilying’ is an old problem that needs to be addressed

by | Mar 26, 2018 | Criminal Defense

A recent New York Times story recounts how New York City police officer Nector Martinez arrested a Bronx woman on gun charges after reportedly finding a 9-millimeter handgun in a laundry bag the woman had with her at her front door when police arrived.

A hallway surveillance camera proved Martinez’s version of the story, which would have sent the woman to prison, was false. Martinez knew he had to stretch the truth in order to avoid an illegal search and seizure charge. When a lawyer for the woman sought to play the surveillance video in court, prosecutors dropped the case. What happened next is the most telling part of the story: The court sealed the case so the real facts were hidden.

That police officers create “facts” out of whole cloth to support a case is, sadly, not news. “We call it ‘testilying,'” a NYC police officer told the Times.

Holding Officers And Prosecutors Accountable

False testimony by police officers is a deplorable truth of the U.S. justice system. What’s equally or even more egregious, however, is that prosecutors knowingly allow it and judges accept their lies. As the Times story states, the problem of false testimony is decades old and the criminal justice system “sometimes responds with little more than a shrug.”

In a 2015 WNYC report examining the pervasive problem of police credibility, a review of more than 1,000 criminal and civil court cases, and interviews with dozens of attorneys, turned up more than 120 officers with at least one documented credibility issue over the past 10 years. That’s an incomplete list because state law makes police disciplinary records confidential and, as the example above shows, state criminal cases are sealed if the case is dismissed even when it’s due to police misconduct.

Most of the officers stayed on the force. Records show at least 54 went on to make more than 2,700 arrests after the date their word was challenged.

Jonathan Abel, a former fellow at the Stanford Constitutional Law Center, told WNYC, “There’s just such high stakes that come with an officer’s testimony and people really have been sent to prison and to their death based on the assumption that officers are telling the truth. So it’s critically important that they be honest. That’s just like a job requirement.”

Police and prosecutors have an ethical duty to seek justice, not just convictions. Penalizing and even prosecuting law enforcement authorities, including prosecutors, who knowingly present false testimony at trial is necessary to address this problem. Prosecutors have enjoyed immunity from liability for acts they perform in their prosecutorial function. But suborning perjury, or covering up an officer’s lies when they learn about it, should make prosecutors subject to both criminal and civil liability.

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