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Still No Consequences for “Testi-Lying” Cops

Posted by Joseph Tully | Mar 31, 2018


Honest police testimony is vital to the functioning of the criminal justice system. Without it, innocent people go to jail, criminals go free, and Americans lose their trust in the system.

Yet, most people would be shocked at the amount of lying and perjury committed by police officers every day on the stand. There are no consequences for lying on the stand as judges and prosecutors either look the other way or share in the joy of the officer lying. Further, convictions make police officers into heroes, whether the accused are innocent or not. Convictions can also mean bonuses and promotions.

Rewards for “Testi-Lying” far outweigh the punishments. After all, lying cops work right alongside the guys assigning the punishments. Even when the bad cops are busted for lying, their partner prosecutor isn't likely to indict.

Lying under oath is a favorite for narcotics officers. “Police officer perjury in court to justify illegal dope searches is commonplace,” says former San Francisco Police Commissioner Peter Keane. “One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath.”

The scariest thing is that any one of us could fall victim to police perjury.

Why do cops continue to get away with perjury? How can the criminal justice system sway law enforcement in a direction of integrity?

Judges Rarely Impose Prison Time for Police Caught Perjuring

Judges could certainly stand to impose harsher punishments. Under California Perjury Law 118 PC, it is a felony for police officers to knowingly make false statements when testifying in court,depositions,signed affidavits, certificates or declarations. Under California Perjury Law 118.1 PC, it is a felony for an officer to intentionally lie in a police report.

The penalty for perjury is up to four years in California State Prison and a fine of up to $10,000. Yet when was the last time you heard of a cop going to prison for perjury?

The punishment for intentionally lying in a police report is three years, yet who has ever even heard of this law, much less it being used?

In the very rare case that a cop is convicted of lying under oath, most judges merely sentence the officer to a few months' probation – maybe some community service. Of course cops know this, and continue their behavior.

Lawmakers Protect Dishonest Cops

California laws continue to make it harder to punish cops for perjury.

In May 2017, California voters approved a new rule that will give California cops facing false testimony charges the choice of appearing before an all-civilian review board.

Supporters of the new rule (including Democratic assembly member Miguel Santiago, Mayor Eric Garcetti and the Los Angeles Police Protective League) proposed it to make it harder to punish cops for lying.

They argue that the current system is unfair because the police chief has undue influence on traditional panels. Traditional police disciplinary hearing review panels consist of two high-ranking officers and one civilian, where the civilian has no criminal record and at least seven years' mediation, arbitration, administrative hearing or similar work experience.

The new rule allows officers facing disciplinary action to choose whether they want an all-civilian panel or a traditional panel to review their case.

But civil liberties groups say it's already too hard to discipline cops and the new ordinance won't make things any better.

People who are wrongly convicted based on the testimony of an officer who lied face a much worse penalty than losing their job,” Lizzie Buchen of California's Center for Advocacy & Policy told the LA times. “State lawmakers should be working to make it easier to hold officers accountable for making false statements, not harder.”

There is precious little evidence that there is anything wrong with the current discipline process, other than that officers and their union don't like it,” wrote the LA Times.

What effect, if any, this change has on disciplining cops for lying under oath has yet to be seen. An LA City Council committee held their first meeting to discuss Charter Amendment C on Tuesday, March 27, but failed to address the topic.

Plain Clothes Officers Don't Wear Cams

In The New York Times' recent and detailed exploration of the police perjury problem, reporter Joseph Goldstein suggests that putting body cameras on plain clothes officers, making surveillance footage more accessible and holding more suppression hearings could reduce incentives to lie and improve police honesty in the witness stand.

Goldstein makes some very solid points. For one, cops driving around in unmarked cars are the ones busting the most drug dealers and finding the most guns. Yet these guys don't have to wear body cameras like uniformed patrol officers.

Many of these cases rely solely on police testimony, and without body cameras, there is no real evidence to determine whether cop's conduct was lawful.

Even when body camera footage is available, there is no requirement that it be produced during trial. Under San Diego Police Department policy, officers have to make a note on citations if the violation is captured on camera. Of course, many cops happen to “forget” to add this note.

In September 2017, a San Diego judge ordered that a conviction be vacated after body camera footage showed San Diego Police officer Colin Governski gave false testimony under oath multiple times.

Governski testified that Tony Diaz was sleeping in the back of his truck when he approached him. The judge found Diaz guilty of living in his vehicle in a public park.

But the city attorney's office later found body camera footage showing that Governski approached Diaz at the park's public bathroom, not sleeping in his car like Governski said.

The body camera footage was never introduced during the trial because Diaz's citation did not include a note that camera footage existed.

Surveillance Footage Goes Unnoticed

Making surveillance footage more accessible could also help. Many innocent citizens arrested for a crime will insist that video footage from a restaurant, bank, grocery store or street corner could prove their innocence.

But how are they supposed to get ahold of the footage when they are in jail?

Roosevelt McCoy was arrested for dealing drugs to a woman on the street after Queens detective Kevin Desormeau said he busted him in the act. Luckily, McCoy's cousin was able to quickly get restaurant video footage showing that McCoy was playing pool during the time Desormeau said he was selling drugs.

In January, a Queens jury convicted detective Desormeau of lying under oath.

But normally, inmates have little opportunity to help build their defense in the critical first hours after their arrest. They have no one to call who will run down to the store and collect the video footage for them. Busy or inexperienced defense lawyers aren't likely to answer the call or make the effort.

Friends or family could try to get the footage, but many public places simply don't have time to scan the footage or don't want to get involved. And investigators working for the defense have no legal authority to force a business owner to supply the footage.

They could ask for a subpoena, but that takes time, and some footage is automatically deleted within days.

There is currently no requirement that courts scan all relevant surveillance video footage to get to the bottom of a case.

Suppression Hearings Thwarted by Plea Deals

As far as suppression hearings involving the legality of police officer conduct before trial, courts don't track how many how many occur. Judges use the consistency of officer testimony, or inconsistencies between officers' stories, to determine whether an officer is lying.

But, if there's a suppression motion that will prove an officer lied, prosecutors will merely offer a plea deal before the suppression hearings occurs.

Even if a defense attorney thinks that he or she could win the case based on the motion, most of the time, the defendant and the defense attorney will accept the plea agreement rather than have a meritorious motion be denied by a judge, with a prosecutorial background, who knows that re-election depends on endorsements from law enforcement. Appealing a bad ruling on a suppression motion is also worthless as the Appellate Courts are so anti-defendant that their decisions contort the Constitution so much that it borders on treason.

Of course, the bad cops know all this, so they aren't afraid to lie.

However, if they were called out in open court more for any shady behavior, such as in a suppression hearing, they may be more likely to tell the truth, out of avoiding embarrassment more than any legal penalty. Goldstein suggests prosecutors should “move away from making “one-time offers” that are taken off the table should defendants go forward with suppression hearings.”

In my experience, I have dealt with prosecutors who refuse to revoke an offer because a defendant wants to exercise his or her constitutional rights in a suppression hearing. They are in the vast minority of prosecutors but they should be commended for their ethical behavior.

“Judges, too, could do more to encourage suppression hearings,” says Goldstein.

Some advocates suggest the courts should start awarding money to victims of police perjury, whether they are found guilty or innocent. Taking the money for these awards out of police department / government funds could deter the activity, though taxpayers may not be willing to make this sacrifice.

How Victims of Police Perjury Fight Back

The unfortunate truth is, when a cop lies about a situation, jurors and judges are more likely to believe their side of the story over yours. But you still have options to unmask the truth and defend your case.

An experienced California criminal defense attorney has access to expert investigators who know how to locate valuable surveillance footage, police body cam footage and photos of the crime scene that expose the truth.

Your defense lawyer will be able to ferret out lies by looking for inconsistencies in witness statements, police reports and during cross-examination. With enough evidence of police perjury, you can often negotiate with the prosecutor to reduce the charges or dismiss them entirely.

In California, you can also file a “Pitchess Motion” to request to see the officer's history. If there are prior complaints about the cop making false statements, your defense lawyer can subpoena the people who made those complaints and use them as witnesses to the cop's credibility.

If you were arrested or convicted and can gather enough evidence to prove the cop is lying, you can sue the cop and police department for some serious damages under US Code 1983.

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...