Though few officers will confess to lying -- after all, it's a crime -- work by researchers and a 1990s commission appointed to examine police corruption shows there's a tacit agreement among many officers that lying about how evidence is seized keeps criminals off the street.
To stem the problem, some criminal-justice researchers and academic experts have called for doing polygraphs on officers who take the stand or requiring officers to tape their searches.
A Supreme Court ruling this month, however, suggests that a simpler, though controversial, solution may be to weaken a longstanding part of U.S. law, known as the exclusionary rule. The 5-4 ruling in Herring v. U.S. that evidence obtained from certain unlawful arrests may nevertheless be used against a criminal defendant could indicate the U.S. is inching closer to a system in which officers might not be tempted to lie to prevent evidence from being thrown out.
Criminal-justice researchers say it's difficult to quantify how often perjury is being committed. According to a 1992 survey, prosecutors, defense attorneys and judges in Chicago said they thought that, on average, perjury by police occurs 20% of the time in which defendants claim evidence was illegally seized.
"It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers," though it's difficult to detect in specific cases, said Alex Kozinski, a federal appeals-court judge, in the 1990s. That's because the exclusionary rule "sets up a great incentive for...police to lie."
So let me get this straight: everyone in the criminal justice system accepts that police routinely lie to help them gain convictions. Rather than realize that this means something is fundamentally flawed with our system, their solution is to remove the penalties associated with police misconduct? The exclusionary rule is one of the few protections afforded to defendants, and now we're going to weaken it because some cops feel pressured to lie to gain admission of the evidence? Exclusionary rule or not, I really am still stuck on the fact that a fifth of the police department routinely perjures themselves in court, and yet that is not the focus of this article. Let me put this another way: our police are committing criminal acts, and nobody is doing anything to stop it.
Throwing out evidence because of wrongful searches and arrests "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free," wrote Chief Justice John Roberts.
Civil liberties advocates and defense lawyers say losing the exclusionary rule would harm the public. "We'd risk far greater invasions of privacy because officers would have carte blanche to do outrageous activity and act on hunches all the time," says JaneAnne Murray, a criminal defense lawyer in New York.
Excluding illegally obtained evidence "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free." Really? If we follow Justice Robert's statement to it's natural conclusion, then police can do whatever they want, as long as they actually catch some people that have drugs. And just what are these "substantial costs" associated with letting drug offenders go free? It seems to me that there are more substantial costs associated with incarcerating drug offenders than there are in letting them go free. As I write this, the federal and state governments combined have spent over $4.1 billion dollars in the first 29 days of 2009 on the drug war. Police arrested an estimated 872,720 persons for cannabis violations in 2007, the highest annual total ever recorded in the United States, according to statistics compiled by the Federal Bureau of Investigation. Of those charged with cannabis violations, approximately 89 percent, 775,137 Americans were charged with possession only. An American is now arrested for violating cannabis laws every 38 seconds.(source)