Taking on testifying: The prosecutor's response to in‐court police deception

Introduction In this article, I examine the problem of "testilying" -- perjury and other forms of in-court deception by police officers -- from the prosecutor's point-of-view. What are the prosecutor's legal and ethical duties and obligations? What, if anything, should he or she do to combat the problem? These questions, and others, are important to ask, discuss, and answer because a judicial "system" that is supposed to adjudicate guilt and innocence yet permits lies -- no matter how small or infrequent -- is no system at all. Under our adversarial system of justice, competing, zealous advocates argue their causes before neutral and impartial arbiters.(1) Implicit in such a system is the belief that those zealous advocates should fight fairly. Using lies does not promote justice; it distorts it.(2) In Section I of this article, I give a detailed overview of the problem of testilying. I demonstrate that it is a real, but by definition unmeasurable, problem. Precisely because the problem is so impervious to quantitative measurement, I spend a significant portion of this article explaining the problem. In Section II, I examine how prosecutors have and have not dealt with the problem. In Section III, I show what the federal subornation of perjury statute and the Model Rules of Professional Responsibility require prosecutors to do in response to testilying. In Section IV, I identify what steps, above and beyond laws and rules of ethics, prosecutors should take to combat the crime of police perjury. Finally, in Section V, I address criticisms of my approach. I The Testilying Problem The term "testilying" was coined by police officers in New York City.(3) It usually refers to perjury committed by police officers. However, it has also been used to describe other forms of in-court deception.(4) As I demonstrate in the following review of the frequency, nature, and reasons for police perjury, testilying is an amorphous problem, not easily understood or fixed, but nevertheless a real one in our criminal justice system. (a) What is testilying? The problem with defining "testilying" is that it is a new term to describe a concept that is not easily definable or understandable. The Mollen Commission was the first to report the use of the term by police officers in New York City. Officers coined the phrase most probably to persuade themselves that what they were doing was morally acceptable. When an officer is deceptive in court, the rationale goes, he is "not quite lying" but "not quite testifying truthfully and completely" either. Testilying is seen as a middle ground between pure honesty and pure dishonesty. Officers feel that they can tread ethically within this middle ground because they feel that they have society's best interests at heart: the conviction of the guilty. This alleged "ethical middle ground" is perhaps the best evidence of the ethical problems with testilying. Officers invented a word in part to avoid acknowledging that testilying sometimes involves committing perjury and other illegal acts. The fact that they do not call their actions perjury or deception or some other term with clearly unethical implications evinces their belief that testilying -- whatever form, illegal or legal -- is somehow justified. If they believed their actions were clearly wrong, there would be no need to create a new word. Lying, perjury, and deceit all characterize deception negatively. Testilying is seen as morally acceptable, however, because it is deception used against someone (the defendant) who is himself morally blameworthy. Testilying is viewed as a small moral compromise that can prevent a larger moral wrong, the non-conviction of a guilty defendant. The question of what is testilying, therefore, needs to be understood within its proffered Machiavellian justification.(5) To address its legitimacy, it is appropriate that we start with considering what forms of in-court deception police officers consider to be ethically "questionable" yet ultimately justifiable. …