The Terrifying Practice of Police ‘Testilying’

The New York Times has a long investigative report about the practice of “testilying” by police officers — lying under oath while testifying in court, and proven to be lying, usually by surveillance video they didn’t know existed. Most disturbingly, the records of their lies were often sealed afterward. A textbook example:

Officer Nector Martinez took the witness stand in a Bronx courtroom on Oct. 10, 2017, and swore to tell the truth, the whole truth, and nothing but the truth, so help him God.

There had been a shooting, Officer Martinez testified, and he wanted to search a nearby apartment for evidence. A woman stood in the doorway, carrying a laundry bag. Officer Martinez said she set the bag down “in the middle of the doorway” — directly in his path. “I picked it up to move it out of the way so we could get in.”

The laundry bag felt heavy. When he put it down, he said, he heard a “clunk, a thud.”

What might be inside?

Officer Martinez tapped the bag with his foot and felt something hard, he testified. He opened the bag, leading to the discovery of a Ruger 9-millimeter handgun and the arrest of the woman.

But a hallway surveillance camera captured the true story: There’s no laundry bag or gun in sight as Officer Martinez and other investigators question the woman in the doorway and then stride into the apartment. Inside, they did find a gun, but little to link it to the woman, Kimberly Thomas. Still, had the camera not captured the hallway scene, Officer Martinez’s testimony might well have sent her to prison.

This is the sort of thing that goes on all the time, of course. I’ve reported on dozens and dozens of such cases over the last 15 years. And as cell phone and hidden surveillance cameras become more ubiquitous, the pace at which we are able to catch these lies picks up speed. The Times investigation found 25 such cases involving NYPD officers in the last three years, but note that this is almost certainly just a tiny, tiny percentage of the number of times it has happened:

The 25 cases identified by The Times are almost certainly only a fraction of those in which officers have come under suspicion for lying in the past three years. That’s because a vast majority of cases end in plea deals before an officer is ever required to take the witness stand in open court, meaning the possibility that an officer lied is seldom aired in public. And in the rare cases when an officer does testify in court — and a judge finds the testimony suspicious, leading to the dismissal of the case — the proceedings are often sealed afterward.

They lie like this for many reasons, but chief among them is to overcome the already low burden to justify a search. They claim to have observed something that meets the “reasonable suspicion” standard that can justify a search without a warrant. That burden is already far too low, but police officers want it not to exist at all. So they lie to get around it, feeling secure that they won’t get caught, and if they do get caught it will all end up sealed and they won’t be punished. And they’re usually right.

Juries almost automatically believe what a police officer says in a trial, but we have so many cases of this at this point that reality has been stood on its head. It might well be more justified to presume that they’re lying rather than telling the truth because they have many powerful incentives to do so. At the very least, I think this needs to become a standard part of jury instructions, that they must evaluate the truthfulness of all testimony, including that of police officers.

Make no mistake about it — innocent people have their lives destroyed by such lies every single day. Justice is undermined. The system is corrupted. And most of the victims are racial minorities.

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