This chapter examines the problem of "testilying" -- perjury and other forms of in-court deception by police officers -- from the prosecutor's perspective.
The term "testilying" was coined by police officers in New York City. It usually refers to perjury committed by police officers; however, it has also been used to describe other forms of in-court deception. As this chapter demonstrates in a review of the frequency, nature, and reasons for police perjury, "testilying" is an amorphous problem, not easily understood or fixed, but nevertheless a serious problem in the criminal justice system. This chapter does not argue that police officers as court witnesses are generally perjurers in the interest of obtaining convictions or are otherwise dishonest. Probably most are not; however, the evidence of "testilying" is sufficiently strong to suggest that police officers commit perjury or other forms of testimonial deception more often than the public and juries have realized. In addressing the problem, members of the defense bar have tended to use the misdeeds of a few police officers and prosecutors to indict the entire system. A better approach is for each element of the criminal justice system -- police, prosecutors, defense counsel, and judges -- to work together to solve this problem. The first step in the author's recommended graduated approach is education. Officers should learn from their mistakes and receive appropriate rewards for following the rules. The public prosecutor is in a position to deal with "testilying." Prosecutors should decline to prosecute cases they believe are based on unconstitutional evidence. In preparing police witnesses for trial, prosecutors can ensure that officers do not misunderstand their preparation as a go-ahead for perjury through "boilerplate" testimony. Prosecutors should not tolerate "testilying," no matter how small the lie or infrequent the occurrence. 131 notes
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Larry Cunningham, "Taking on Testilying: The Prosecutors Response to In-Court Police Deception (as appeared in Criminal Justice Ethics, Vol. 18 No. 1, (Winter/Spring, 1999) pp 26-40. Reprinted with permission of The Institute for Criminal Justice Ethics.