Testilying: Police Perjury and What to Do About It

Abstract

Police, like people generally, lie in all sorts of contexts for all sorts of reasons. This article has focused on police lying designed to convict individuals the police think are guilty. Strong measures are needed to reduce the powerful incentives to practice such testilying and the reluctance of prosecutors and judges to do anything about it. Among them might be the adoption of rewards for truth telling, the redefinition of probable cause, and the elimination of the exclusionary rule and its insidious effect on the resolve of legal actors to implement the commands of the Constitution. Ultimately, however, the various proposals set forth in this article are merely suggestive, meant to stimulate debate about how to curtail testilying at suppression hearings. There is strong evidence to suggest that police in many jurisdictions routinely engage in this kind of deceit, and that prosecutors and judges are sometimes accomplices to it. Even if it turns out that this evidence exaggerates the problem, the fact remains that, because of the O.J. Simpson trial and similar events, more people than ever before believe it exists. To restore trust in the police and the criminal justice system, we need to take meaningful steps against testilying now.