A License to Lie

The Supreme Court has given police officers a license to lie. Previously, the Court ruled that when officers lie at a criminal trial, presumably to obtain a conviction, they are immune from civil suits. On April 2, 2012, the Court decided Rehberg v. Paulk, finding that all witnesses, including police officers, who lie before a grand jury in order to obtain an indictment are also immune from civil lawsuits. According to the Court, there is no reason to hold officers civilly liable since they are subject to criminal prosecution for perjury. However, this is actually a license to lie because a perjury charge would have to be brought by the prosecutor— the same prosecutor who called on the officer to testify.

Perjury prosecutions of police officers for lying before a grand jury simply will not happen because officers and prosecutors have an interdependent relationship. They work together to investigate crimes, interrogate suspects, and build a case. Prosecutors will not bring perjury charges against the officers they work with because if the officer is convicted of perjury, it will ruin other cases in which he or she testified for the prosecutor and it will deteriorate the prosecutor’s relationship with the police department. Additionally, criminal perjury cases are hard to win, particularly in the face of backlash from police departments and police unions.

The Court defends its decision by emphasizing that prosecutors (who have absolute immunity from civil suits), not police officers, initiate prosecutions. This is only correct in a very formal sense. Police officers initiate the criminal process by making an arrest. While the decision to press criminal charges is technically made by a prosecutor, prosecutors rarely decline to press charges after officers make an arrest. Police officers investigate the crime for the prosecutors, providing information that they believe incriminates their suspect. Officers and prosecutors share a mutual desire to see their suspect indicted and convicted. Officers see it as their job to obtain a conviction. To this end, they are willing to lie to get their suspect found guilty.

Police officers lie for many of the same reasons anyone might; because they think their deceit will serve a higher purpose (such as indicting someone they assumed to be guilty) and/or to cover up their misconduct. We can learn about this problem by looking at cases where innocent people were wrongfully convicted. Time and time again, officers in these cases have used improper techniques in line-ups, coerced false confessions, obtained evidence illegally, withheld evidence, bribed informants and lied to mislead juries about the facts of the case. Often, police officers lied to a grand jury and at trial to help convict a person because they thought he was guilty.

An article in the January 2011 edition of Police Chief Magazine, Understanding the Psychology of Police Misconduct by Brian D. Fitch, describes eight ways in which officers rationalize lying and other misconduct: denying that there was a victim; denying that anyone was hurt by their misconduct; claiming that there was a higher cause that compelled them to commit misconduct; blaming the victim by claiming that the victim deserved to suffer because they broke the law; using dehumanizing language (e.g. “scumbag,” “piece of trash”) to make the victim seem less human; claiming that they had no choice but to commit misconduct because they were a victim of circumstance; comparing their misconduct to more serious misconduct in order to minimize what they have done; and diffusing their own responsibility when there are multiple officers involved. Police officers use these rationales to justify lying on the witness stand.

For victims of police perjury, the Rehberg decision blocks the last avenue for justice and contributes to the flawed nature of our criminal justice system. Police officers should not be allowed to lie to a grand jury or at trial without fear of sanctions. Witness immunity should not apply to police officers, whose jobs require them to testify truthfully. Unfortunately, in Rehberg a unanimous Supreme Court immunized police perjury.

By Howard Friedman and Carmen Guhn-Knight