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Police lying doesn't just act as a shield for police violence, but as a larger source of corruption in the criminal justice system. Criminal cases are always narrative battles: Prosecutors and defense attorneys compete to win cases by presenting the most plausible stories consistent with admissible evidence. The police play a crucial part in this system as a supplier of narrative facts, in the form of both reports and testimony under oath.
As Ohio State law professor Michelle Alexander noted in a 2013 article inThe New York Times, there is a powerful social presumption that we should put our faith in cops. “As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but?” Alexander said that this abiding faith in the police is misplaced: “In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.”
Alexander’s contention rests on a strong scholarly literature about “testilying”—the practice of police officers committing perjury to secure a conviction, usually against someone they think is guilty. In a classic 1996 article for the Colorado Law Review, Vanderbilt Law professor Christopher Slobogin demonstrated that both “reportilying” (falsifying police reports) and “testilying” are pervasive in many American jurisdictions.
Police perjury, Slobogin argues, occurs because “police think they can get away with it. Police are seldom made to pay for their lying.” Not just prosecutors but even many judges see themselves as sharing a common set of goals with the police of making sure the guilty get punished. Working in a shared enterprise, they are loath to challenge police perjury. “Prosecutors put up with perjury because they need a good working relationship with the police to make their cases,” Slobogin notes.
Slobogin documented his case by citing a compelling 1992 study by Myron Orfield of the Chicago criminal justice system showing that a large percentage of judges, prosecutors, and defense attorneys acknowledge the reality of police perjury: “In his survey of these three groups (which together comprised 27 to 41 individuals, depending on the question), 52 percent believed that at least ‘half of the time’ the prosecutor ‘knows or has reason to know’ that police fabricate evidence at suppression hearings, and 93 percent, including 89 percent of the prosecutors, stated that prosecutors had such knowledge of perjury ‘at least some of the time.’”
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