The Police Lie. All the Time. Can Anything Stop Them?
The police reaction to George Floyd’s murder, as well as the resulting nationwide protests, introduced many Americans to the fact that law enforcement officers lie. After officer Derek Chauvin killed George Floyd, the Minneapolis Police Department issued a statement falsely claiming that Floyd “physically resisted officers” and excluding the fact that Chauvin knelt on Floyd’s neck for nearly nine minutes. When Buffalo police officers violently shoved a peaceful 75-year-old man, their department falsely asserted that the victim “tripped and fell” during “a skirmish involving protesters.”
This tendency to lie pervades all police work, not just high-profile violence, and it has the power to ruin lives. Law enforcement officers lie so frequently—in affidavits, on post-incident paperwork, on the witness stand—that officers have coined a word for it: testilying. Judges and juries generally trust police officers, especially in the absence of footage disproving their testimony. As courts reopen and convene juries, many of the same officers now confronting protesters in the street will get back on the stand.
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Officers have a litany of incentives to lie, but there are two especially powerful motivators. First, most evidence obtained from an illegal search may not be used against the defendant at trial under the Fourth Amendment’s exclusionary rule; thus, officers routinely provide false justifications for searching or arresting a civilian. Second, when police break the law, they can (in theory) suffer real consequences, including suspension, dismissal, and civil lawsuits. In many notorious testilying cases, including Parham’s, officers blame the victim for their own violent behavior in a bid to justify disproportionate use of force. And departments will reward officers whose arrests lead to convictions with promotions.
Two major cities are taking two different approaches to the problem. In New York City, prosecutors keep secret databases of unreliable police officers, though only two boroughs actually prohibit those officers from taking the stand. Without further reforms, however, this approach fails to address the underlying problem: Prosecutors are reluctant to accuse officers of lying in the first place, or to investigate an officer’s claims to learn if they align with reality. As a result, an officer who lies convincingly can evade the list indefinitely. In San Francisco, by contrast, District Attorney Chesa Boudin has sought to eradicate the incentives that lead police to lie in the first place. Both cities are witnessing an experiment play out in real time: What happens when the criminal justice system can no longer rely on its enforcers to tell the truth?
The New York Police Department provides a case study in how the criminal justice system rewards lying. One NYPD officer, David Grieco—commonly known as Bullethead—has been sued at least 32 times, costing the city $343,252, for civil rights violations, including excessive force and fabrication of evidence. Yet Grieco was promoted and prosecutors continued to call him to the stand long after a slew of his victims blew the whistle on his violent and lawless behavior. Judges continued to rely on his word to lock up defendants. And Grieco’s name did not appear on Brooklyn District Attorney Eric Gonzalez’s long-secret list of officers with known credibility problems.
“When you have a system of that kind of impunity, it snowballs. It teaches, encourages, and enforces bad behavior.”— Chesa Boudin, San Francisco district attorney
Grieco is a symptom of a much deeper problem. Widespread lying about Fourth Amendment violations is at least as old as the exclusionary rule itself. The Supreme Court applied this rule nationwide in 1961’s Mapp v. Ohio, preventing state prosecutors from relying upon illegally obtained evidence to secure a conviction. Mapp spawned a surge in “dropsy” cases: Rather than admit to an illegal search, police claimed that defendants simply dropped drugs on the ground in front of them, since evidence found in “plain view” can be used at trial. Studies of criminal trials in New York City found that, after Mapp, police began lying about arrests to ensure that evidence would be admissible. In the early 1970s, the New York district attorney even told the New York Court of Appeals that, since Mapp, officers lied on the stand in a “substantial” number of “dropsy cases.” Two decades later, the Mollen Commission—a famous investigation of the NYPD—found that officers routinely engaged in perjury and falsification of records, “the most common form of police corruption.”