There is a tendency in America for individuals to judge others, particularly those in the public eye, by standards harsher than those imposed on themselves. This double-standard is particularly evident in the field of law enforcement, where men and women doing a difficult and dangerous job for minimal pay are expected to comport themselves with almost superhuman restraint, control, and respect for the rules. The basis for such a requirement is their placement as reliable witnesses in criminal cases in which they have participated.
Police officers have a de facto credibility in the area of testimonial evidence. In most cases, lacking corroborating evidence to the contrary, the word of a police officer will be taken above that of a lay witness by both judge and jury. Because of the normal dealings of officers on constitutional issues, it is necessary that their word be unimpeachable (literally and figuratively). Despite this fact, it is unrealistic to expect a police officer never to be caught in a lie over several years of service.
The officer in the hypothetical case offered should be disciplined, but not terminated, as his record and the nature of the offence he committed are unlikely to destroy his credibility as a fundamental component of due process. It may be argued that such conduct on the part of an officer may be introduced at any trial for which he testifies as evidence to undermine the credibility of his testimony. Failure to disclose information that might tend to be exculpatory to the defense is a reversible error on the part of the prosecution. (Brady v.
Maryland, 1963) The question is whether evidence of any falsehood on the part of a law enforcement officer is sufficient to impeach his credibility. Law enforcement officers employ deception to varying degrees in the normal course of their duties, and most adults also do so in the course of their daily lives. The nature of this particular offence of the officer, the first documented case of deception on his part in 10 years, is not sufficient on its own to qualify as a guarantee of impeachment of credibility of this officer in court.
The Brady case indicated that evidence withheld should only qualify as reversible error if the evidence is material to the guilt or innocence of the defendant. (Brady v. Maryland, 1963) This would be difficult to establish unless the entirety of the evidence of the case were predicated upon the truthful ness of the officer in question. Unless the nature of his substantive testimony was materially related to the matter before the court, there is no reason to admit it for the sole purpose of muddying the waters of credibility for a law enforcement officer with an otherwise exemplary record.
In other cases, the Supreme Court has laid the requirement of “materialness” upon evidence offered to the defense by the prosecution of a case. (Gigilo v. United States) Having spoken a lie on the record in a single case involving the officer’s self-interest that does not offer evidence of a pattern of dishonest conduct on the part of the officer as it relates to the completion of his duty is not material to any case requiring his testimony. Thus, the withholding of such information on the part of the prosecution in such a case would not violate due process.
(Gigolo v. United States, 1972). The issue of materiality is further outlined by the Supreme Court in United States v. Agurs (1976). In this case the Court opined that evidence is considered to be material in this context only if the presenting of the evidence would have introduced reasonable doubt where none had existed before. (United States v. Agurs 1976) In the case of the officer in question, it would be difficult in the extreme to argue that his dishonesty in a single, unrelated incident would have created reasonable doubt for the entirety of a criminal case.
Thus, failure to disclose that dishonesty would not constitute a denial of due process for a defendant upon whose conviction the testimony of this officer depended. A later case, Kyles v. Whitley, (1995) articulated a four-part standard by which evidence withheld by the prosecution would be measured as to whether its suppression by the prosecution violated due process of law. (Kyles v. Whitley, 1995) The first prong of this articulation is to soften the standard of materiality from where it stood in United States v.
Bagley (1985), saying that evidence is material if there is a “reasonable probability” that the disclosure of the evidence would change the outcome of the proceedings. (Kyles v. Whitley, 1995) The second element is that materiality goes beyond the supposition that evidence should have been admitted, to the point where its admission would have placed the entire case in a different light. (Kyles v. Whitley, 1995) The third element is that once the materiality of evidence is established by the court, no further harmless-error review is necessary. (Kyles v.
Whitley, 1995) Finally, the disclosure requirement of the state turns on the total cumulative effect of the evidence in question, not any individual piece. (Kyles v. Whitley, 1995) It is upon this final point that evidence of the hypothetical officer’s wrongdoing would fail to qualify as material. By itself, the officer’s conduct with respect to his misuse of city facilities and his untruth during the investigation are not alone enough to impeach his credibility on an unrelated matter. Thus this single incident alone is not material to a general attack of the officer’s credibility.
Having established that the officer’s conduct does not represent a significant liability in the matter of due process of law for any testimony he offers in court, the issue remaining is that of punishment for the officer for the violation that he committed. It is important in any organizational hierarchy that rules are established and that consequences for violations be clear, consistent and fair. In the hypothetical case, the officer committed two violations of conduct that would apply to any organization. First, he lied about his involvement in an incident being investigated by his superiors.
Second, he committed an act of improper use of the organizations’ equipment. It would be in the interest of the organization for the consequences of these two acts to be clear, proportional and publicly offered. In light of the fact that the officer’s lie during the investigation might have some negative impact on his credibility, the punishment for the former offence ought to be more serious than that of the latter. The officer’s behavior of lying during the investigation falls well short of Making him a liability to the police department, or to the government in general (in the context of prosecuting cases).
It is typical practice for officers to work in pairs, making the credibility of a sole officer reinforced by his or her partner in most cases. This being the case, a 10-day suspension without pay is sufficient punishment. For the offence of using department computers to access pornography, a further five-day suspension without pay is called for. It is a documented fact that police officers often have shaded or lied in testimony, particularly in the context of admissibility hearings.
(Zeidman, 2005) A commission assembled in the early 1990s in New York that was organized to investigate police corruption found that corrupt officers “manufactured facts” to justify unlawful searches and seizures. (Zeidman, 2005). One of the more common stories is that a defendant dropped a bag containing an illegal substance as the officers approached them. (Zeidman, 2005). It would appear that officers are able to get away with such stories with relative impunity due to their standing in a courtroom as an officer of the court.
(Zeidman, 2005). Unfortunately, the testimonial evidence in such hearings (which are held at the bench, rather than in front of a jury) is the word of an officer of the court (the police) versus a defendant with vested interest in having the evidence suppressed. Given that balance, the police officer is going to be believed over the defendant in every circumstance. (Zeidman, 2005). It is well established in larger jurisdictions, such as New York City, that police perjury is rampant and very rarely punished. (Zeidman, 2005).
One practice involves officers enhancing their overtime pay by “trading collars” with other officers. This involves officers making themselves the arresting officer of record on arrests for which they were not even present. (Zeidman, 2005). By extension, these officers are called to testify about arrests they did not even make. (Zeidman, 2005). Given these facts, it is unlikely in the extreme that any officer, as a practical matter, would be subject to a level of scrutiny that would cause an incident such as the hypothetical to arise as an exculpatory factor in a hearing or a case.
In a police environment where “trading collars” is a common practice, an incident of lying in the course of an investigation into the officers’ conduct is unlikely in the extreme to permanently harm the reputation of this officer in court. References Brady v. Maryland, 373 U. S. 83 (1963) Giglio v. United States, 405 U. S. 150 (1972) Kyles v. Whitley, 514 U. S. 419 (1995) United States v. Agurs, 427 U. S. 97 (1976) United States v. Bagley, 473 U. S. 667 (1985) Zeidman, S. (2005) Policing the Police: The Role of the Courts and the Prosecution. Fordham Urban Law Journal 32 (2), 315.