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The Persistent Problem of Unreliable Witnesses

Recent notions of police misconduct conjure up the faces of those killed by police. Modern technology has allowed or these crimes by cops to be caught on tape. But, police misconduct covers a large swath of behaviors which often embed themselves deeply into entire police forces and therefor communities. The Supreme Judicial Court decision in Graham v. District Attorney for Hampden County provides an example.

In Hampden County, Massachusetts, some police officers developed a habit of threatening, harming, and terrifying suspects – even juveniles. As they did so, they told their victims, and themselves, they would get away with it, whether the “it” was physical brutality or planting evidence. None of this is new. Like poverty, like crime itself, like issues related to immigration, where you have people charged with enforcing laws that restrict another’s liberty, there will be corruption and misconduct and violence. To paraphrase Macchiavelli, power breeds abuse of power. While not everyone involved in law enforcement engages in this behavior, as Frank Serpico demonstrated half a century ago, ferreting it out by the honest few does not go over well.

The Graham decision looks to a United States Department of Justice probe of irregularities by the Springfield Police Department narcotics division and seeks to figure out what to do about past cases where defendants were convicted thanks in large part to false testimony – and sometimes illegal actions – of police officers. Let me clarify - the prosecutors were aware of the officers' dishonesty and bad behavior, but did not disclose it to the defendant in violation of ethics and constitutional law. Again, this is not new. 

In case after case, courts have sought ways to discourage abuse of power by keeping evidence from trial. Courts devised the exclusionary rule to keep from trial any evidence that was obtained in violation of the constitution such as in a warrantless search or an inhumane interrogation. While the courts have chipped away at that court-created rule over and over again, even in full force and effect, the exclusionary rule does not deter police misconduct.

In Graham, petitioners asked the Supreme Judicial Court to evaluate not the police officers, but the disclosure requirements of the District Attorney in Hampden County when police officers involved in a case have been found on other occasions to be dishonest and/or have previously used excessive force. It is unethical, in fact, for prosecutors to fail to disclose this information to criminal defendants. Yet, amazingly, criminal defendants, many convicted at trial, have not received this exculpatory evidence.

To recap – for decades, courts have been dismayed by ubiquitous unlawful actions of law enforcement to the point that they developed a rule to exclude from evidence any information obtained in violation of the constitution. Not only do courts accept that police will violate the constitution in obtaining evidence, but they also recognize that suspects and witnesses in for questioning will be overwhelmed by the situation to the point that they must be informed of their constitutional rights by their interrogators. Courts, therefore, acknowledge the history of police officers lying and falsifying evidence. Maybe they assumed that even if police officers refused to follow the law, prosecutors would? Big mistake.

Given this history, why are police officers – who are not percipient witnesses and who are not experts - allowed to testify at trial at all? Just as jurors love eyewitness testimony even though eyewitness testimony is truly the least reliable evidence permitted at trial, jurors instinctively believe law enforcement even when the objective evidence shows them to be dishonest. Unlike percipient eyewitnesses, however, there is truly no reason for police officers to testify at trial.

Officers get extra pay for going to court for hearings and for trials. Civilian jurors believe them despite the fact that, collectively, they have a reputation of being dishonest. They are almost never witnesses to crimes who can impart information significant to the fact finder. If anything, law enforcement officers are a distraction during trial and they end up costing taxpayers a significant amount of money for their unnecessary presence. Why can’t all the evidence related to police officers be determined in pretrial hearings and then the salient points, such as the chain of evidence or the sequence of events be reduced to writing and crafted into a stipulation?

Because of their own actions and collective refusal to obey the law, putting police officers on the stand has become akin to putting jailhouse informants on the stand – there can be disclaimers and cautionary jury instructions galore but those never unring the bell. Maybe one of the lessons from Graham will be that a few bad apples do rot the entire barrel. Courts should allow law enforcement to testify at hearings in order to make rulings on evidence whether that be on motions to suppress or motions in limine and then allow that evidence in by agreement and stipulation – saving any preserved rights in the record. Then, courts should refuse to allow law enforcement to testify at trial. This rule would be more fair, would eliminate costly time and a half pay, would actually assist the triers of fact without distraction, and would protect prosecutors from the ethical conundrums they face daily by knowingly putting dishonest witnesses on the stand.

I am just kidding about the last piece. Prosecutors have demonstrated the same willingness to ignore their duties as the police officers. Indeed, Graham itself castigates prosecutors who, after a judge determined a police officer was dishonest, chose to disregard that finding and failed to disclose it to people facing a loss of liberty at the hands of the state. It is because of this cognitive dissonance and because prosecutors willingly deceive themselves about the veracity of witnesses and validity of evidence that Graham had to be decided.

For years, I have advocated to cut significantly the criminal caseload of courts by eliminating a significant number of crimes and reducing the opportunity for plea bargains. Defendants are entitled to trials, not to agree to plead guilty in exchange for favors from the government. Further, courts should ban jailhouse informants from testifying at trial (this does not necessarily include co-conspirators who, although they plainly seek to diminish their own misconduct, at least have inside information not available to anyone else that might help jurors with their verdict). Jailhouse informants do not ever, ever, ever help jurors reach the truth and their information is universally more prejudicial than probative. Courts should prohibit their testimony in all cases.

The continued violence and dishonesty from law enforcement – even if it is not all of law enforcement – and the incomprehensible denial of this terrible behavior by prosecutors - even if it is not all prosecutors - highlights the need to curtail law enforcement from testifying at trial as well. There are ways of getting in any relevant and important information via stipulation while banning officers from testifying at trials of criminal defendants. That is – if Graham and its predecessor cases teach anything, it is that criminal justice would benefit from more streamlined, previously adjudicated, fair evidence submitted for review by juries.  Otherwise, we are going to be back here again, like we were with the drug lab cases, post-hoc seeking to deliver justice delayed.





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