Cops fibbing on the witness stand is so normal, there’s even a name for it: testilying. Or in mixed-metaphor legalese, “tailoring their testimony to overcome constitutional objections.”
A little exaggeration here, a few omissions there. Why not, when they know the judge will take their word for whatever they say? Here’s a typical example:
Sgt. Blow: I’ve been with the NYPD for 42 years. I’ve made 90,000 arrests. On October 15th, 2016, my team received a radio transmission of a drug buy and a description of the seller. It matched the defendant. We arrested him and recovered $20 in pre-recorded buy money. I recognize him in court as the gentleman in the red shirt, since the only other person at the defense table is a female.
Prosecutor: The People rest.
Court: I find the arrest and search lawful and the defendant guilty.
Defense counsel: Er, Judge –
Court: Oh, did you want to delay the proceedings by keeping this busy, overworked veteran officer on the stand so you can impugn his credibility?
Defense counsel: If I may cross-examine?
Court: Yes, of course, did you think my courtroom was the Star Chamber? Hahahah.
Defense counsel: Hahahah. (to Sgt. Blow) Sergeant, what was the description you received over the radio?
Sgt. Blow: Like I said, a description of the defendant. Coffee-colored 6-pocket Tommy Hilfiger jeans, argyle socks, Michael Jordan 901 sneakers, 24-karat gold chain –
Defense counsel: Objection, Your Honor, he’s reading from something.
Court: (to Sgt. Blow) Tut, tut, you mustn’t read from a document not in evidence. Just look at it to refresh your recollection. Then you can tell us what you recollect it says.
Sgt. Blow: Tattoo on back saying, “Big Dog,” t-shirt with cap sleeves –
Defense counsel: All this was in the radio transmission?
Sgt. Blow: To the best of my refreshed recollection, Ma’am.
Defense counsel: Did you write down the description when you received it?
Sgt. Blow: Of course not, there wasn’t time. I wrote it down at the Precinct after the arrest.
Defense counsel: And how did you know the $20 bill in his pocket was the same one you gave the undercover buyer?
Sgt. Blow: Because I made a xerox of the bill before giving it to the undercover to buy drugs with. See? It shows the same serial number as on the bill.
Defense counsel: But there’s no date stamp or anything on the xerox. How can we tell it was made before the arrest?
Sgt. Blow: Because I signed it and wrote down the time. [A.S.: we’re not making this up]
Defense counsel: Your Honor, the People have proved only that the officer described the man they arrested, who we concede was the defendant; and that the xerox matches the $20 bill. That’s not proof of anything.
Judge: I find Sgt. Blow credible. Suppression denied.
And here’s the typical hearing when there’s a confession:
Det. Donut: We took the defendant to the interview room at the back of the precinct next to the detectives’ offices. The door wasn’t locked, so he was there voluntarily. We made small talk for 12 hours and then he voluntarily admitted that he shot Big Dog nine times by accident and he’s very sorry.
Defense counsel: Did you record the questioning?
Det. Donut: No, Ma’am.
Defense counsel: Did you take notes?
Det. Donut: I wrote up my report afterwards. Says he admitted to shooting Big Dog nine times by accident and —
Defense counsel: What did you say to him during the preceding 12 hours?
Det. Donut: How do you expect me to remember? It was three years ago. [we’re not making this up either]
Defense counsel: Your Honor, the People haven’t met their burden of proving beyond a reasonable doubt that the confession was voluntary when there’s no testimony about how it was elicited.
Court: I credit Detective Donut that it was voluntary. Suppression denied.
If judges weren’t so unthinkingly credulous, maybe cops would have to tell the truth. But don’t take our word for it.
Credulity is not the problem. The problem is much, much worse.
The judges aren’t credulous. They just believe in the Presumption of Guilt. If the defendant was arrested he must be guilty . .of something. If not this, than something else that he got away with. Maybe they should pay attention to the own jury instructions.
Yes, it looks like jury instructions go straight from the book to the judges’ mouths without passing through their minds.
What kind of an attorney stupidly argued to a judge that the burden of proof at a suppression hearing on a confession was beyond a reasonable doubt. I know of no jurisdiction which uses the beyond a reasonable doubt standard at a motion to suppress. In fact,, at such motions the defendant starts with the burden to show by a preponderance the confession was taken in a way that violated his rights. Pretty stupid error for someone calling themselves appellate squawk.
In NY the People have to prove the voluntariness of a confession BRD. At the suppression hearing.