WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

“Testilying” an everyday occurrence

Mark Bennett posted a few days ago about the “everyday incident” of cops committing perjury – or as they call it, “testilying.” He stated that:

Not all cops who lie are willing to perjure themselves. Many times cops on the witness stand tell different stories (the truth) than what they had put in their offense reports (lies). Unfortunately, though, most cases never make it to trial (often the lies are too small to be relied upon to affect the outcome), so prosecutors — despite having seen this happen more than I have — rely on offense reports as the literal truth in deciding how to resolve cases. (The lesson to defense lawyers is, of course, not to make that mistake, to listen to your client, and to remember that good things happen when you try cases. Nobody ever got acquitted by pleading guilty.)

I can’t tell you how many times I have cross-examined a cop in a suppression hearing or preliminary hearing, where something completely different comes out of his mouth than what he wrote in his police report. I think that what obviously happens is that the cops do whatever they want initially. They pull the person over on a “hunch,” or search the person or their premises illegally, without regards to mere rules or laws, then they put in their “report” a little white lie – that they received a tip from an undercover informant, or that the person drove erratically, or that the person consented to being searched. This, in their mind, validates the search, stop, or seizure if they found anything incriminating. Then, several months later, they get called to the witness stand, and they fail to review the report, but their memory is not totally in sync with their report.

Cops don’t fear prosecution for perjury because there is almost a 0% chance they will be prosecuted. The cops – or judges for that matter – could care less. The only, only, only situation in which there could be criminal liability imposed on a cop for perjury is if they are caught on tape or under oath, and if it is blatantly intentional. Only if the situation is such that a prosecutor of judge would fear for his or her own job if they fail to act. Otherwise, they will always be given the benefit of the doubt, if not just a shrug of the shoulders.

As a defense attorney, you know they are lying, but there is not much you can do about it other than to contest it and to create a record for your trial or your appeal. As Mark Bennett, said, “nobody ever got acquitted by pleading guilty.”

– John H. Bryan, West Virginia Attorney.

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August 19, 2008 - Posted by | Police, Police Misconduct, Preliminary Hearings, Prosecutors, Suppression

2 Comments »

  1. I posted comments on Mark Bennett’s blog and then I blogged about this issue of testilying and report-i-lying also on my blog http://www.oklahomacriminaldefense.blogspot.com I also suggested creative ideas for cross examination. I sometimes find a civilian witness who was present at the scene of the arrest and who testifies to a different version of the facts. Ultimately, a jury, twelve lay judges, have the duty as instructed in the jury instructions to determine the facts. While the judge instructs the jury on the law, it is the jury that judges the facts, and the 12 individual lay judges can choose to believe the police officer or not to believe the police officer. Police officers sometimes become “cocky” thinking that a jury will believe them over the defendant because the defendant has a prior criminal record. Jurors get to determine the facts and have no obligation to presume that anyone is truthful just because they wear a badge and a uniform.
    Yours in the Defense of Fellow Human Beings,
    Glen R. Graham, Attorney at Law, Tulsa, Oklahoma

    Comment by Glen R. Graham | August 20, 2008 | Reply

  2. I discuss testilying on my site at http://www.relentlessdefense.com. It is an everyday occurrence, yet it rarely works out for them. As a friend of mine once commented, “They lie when the truth would do.”

    Comment by ronin5557 | May 17, 2010 | Reply


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