When Police Lie, How Should The Criminal Justice System React?

What happens when a police officer lies?  That question has caused a myriad of litigation, debate and discussion because when the police lie it is the equivalent of kicking sand in the eyes of the referee in a game.  The challenge?  How do we determine that the officer has lied? How do we discover that an officer lied in a particular case?  Sometimes it is possible through diligence and investigation.  For example, several times within the past year, Neil Rockind and Colin Daniels of Neil Rockind, P.C., have discovered and proven that a police officer lied, either in court or in an affidavit for a search warrant.  On one such occasion, Rockind proved that a narcotics detective lied twice: once in an affidavit for search warrant and again in court during a preliminary examination.  The detective testified in an affidavit that he got information from an unknown source that our client was growing marijuana. Based upon this allegation, the detective went to our client’s house and claimed that he could smell an odor of marijuana emanating from a vent.  Rockind and Daniels proved that there was no “unknown and confidential source” but rather that the detective found a medical marijuana patient certification form, with our client’s name affixed, in a warehouse and used it to investigate our client. The detective lied.  We also proved that there was no odor of marijuana coming from the condominium — another detective unwittingly admitted that there was no odor of marijuana from the vent as he stood right in front of it waiting to execute a search warrant.  The Detective lied there also.

In another case, a road patrol officer claimed that she arrested our client based on certain driving behavior (alleged weaving).  Through the use of videotape, a measuring program, and cross examination, we proved that the officer was lying.  She lied and the judge dismissed the case.

In yet another case, a well-known marijuana case in which Neil Rockind cross-examined a police detective and proved that: 1) he has “mad cross examination skills”, according to court watchers and observers, and 2) the detective  testified untruthfully in both district court during a preliminary examination and in an affidavit for a search warrant.  That case was dismissed as well.  The problem is not what happens when Rockind or other lawyers can prove that a police officer lied (it’s not a problem because the case gets dismissed); the problem is what happens when we cannot prove lies in our case, but the officer in our case has lied in other cases … What then? 

The law requires that this information be turned over to the defense.  Yes, you read that correctly.  The law requires that this information be turned over to the defense.  It cannot be hidden; it cannot be brushed under the proverbial rug.  This material and information is referred to as Giglio and Brady material and so known is this obligation that even police organizations such as The International Association of the Chiefs of Police acknowledge this duty.  Here is an article in which the International Association of the Chiefs of Police acknowledges this duty.

The police and prosecutors are tasked with policing themselves.  Does it happen?  Can they be trusted to do this difficult task?  Rare is the case when a prosecutor approaches the defense attorney and says, “here is a file on a police officer in our case who was disciplined for lying or we think lied previously.”  While that should happen every time, it doesn’t. We suggest that a prosecutor has a duty to disclose that information even absent an official disciplinary finding — they should disclose the information when in their experience and/or knowledge a police officer has lied or given false testimony.  The International Association of the Chiefs of Police (“IACP”) even acknowledges that any acts of untruthfulness of a police officer should be disclosed.  This means that when a prosecutor dismisses a case or even dismissed a single count due to a lie, the prosecutor should thereafter disclose that information to the defense in every case.  Period.  Voluntary disclosure of that information should come with the police reports, records and witness statements in the case — no different than turning over a witness statement or any other discovery.  It should be standard.  Sadly, it is not and the stories of the failure to disclose are legendary.  Sen. Ted Stevens’ prosecution comes to mind.

In US v Stevens, the federal government prosecuted Ted Stevens, the sitting Senator from Alaska.  The prosecution obtained a conviction.  The conviction was overturned and the prosecutors were investigated.  The prosecutors had withheld evidence favorable to the accused. National Public Radio summarized the Brady and Giglio violations.  In a highly publicized opinion, the trial judge, the Hon. Thomas Sullivan issued an opinion finding misconduct on the part of the prosecutors.

While Senator Stevens’ story is well-known and publicized, others are less so.  Prosecutors often fail to identify information as Brady or Giglio material and instead do the opposite — they proceed with new cases with the same detectives, never tying the previous misconduct to a continuing duty to disclose.  Others play “cute and clever” with the materials — they sit on it, stay mum, and wait for individual defendants to enter pleas of guilty or otherwise.

Is Stevens’ the only example?  No.  Does the prosecution disclose it willingly?  Experience reveals that too often they do not.  Justice deserves better.

If you or a loved one believe that a police officer has lied in a case that is important to you, please contact Neil Rockind, P.C. to see if we can be of assistance in your case.

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