It’s way past time to stop police ‘testilying’
knowablemagazine.org
knowablemagazine.org
This seems like a pretty bizarre framing. A police officer with a history of filing fraudulent reports or committing perjury should not still be a police officer.
But they're paying union members, too!
if you want accountability, reduce the number of policing jobs to some number lower than the number of people who want to be police.
But the most important factor you didn’t raise is the increasing corporate funding of police [1].
[1] https://www.theguardian.com/us-news/2020/jun/18/police-found...
maybe, maybe not
you would definitely open up the profession to all the people who consider themselves honest, and thus who have avoided a career in policing, which is rife in corruption, rewards corruption, and penalizes honesty
and let's be honest, it pays a TON for what isn't even close to one of the most dangerous professions, so neither pay nor danger are what keeps smart, honest people away
currently, most such people would avoid it because of the culture (particularly the culture of corruption), and bad police don't want and, indeed, deter such people from joining their ranks
> bad cops don't keep their jobs because they have a powerful union
almost universally, they do: the union literally prevents firing most bad police officers
As such, their punishment should be even harsher, and tolerance for their lies should be even lower.
What's the first step toward implementing this system? What actions can be taken to get to that from where we are?
The police are not going to arrest the police. The DAs are not going to prosecute the police (who they generally regard as the "same team").
The system as designed and currently operating is broken and intentionally unfair and unjust. How do we go about replacing or fixing it?
This is only the right solution on paper. Not in reality, sadly.
The key is they have to be completely different career systems, where they don't fraternize or socialize with each other, and you'd probably have to make it somewhat antagonistic culturally so they don't end up doing something similar.
Which is why it has to be a different organization. Internal affairs is a systematic failure probably because it's within the same organizational tree as everyone else. It's really hard to incentivize people to do the 'right thing' when the incentives make it career suicide to do the right thing because you'll become a dangerous pariah as soon as you do.
Also to start I'd start with actions in court / evidence, not in the field until that organization starts running out of those actions to enforce because they've installed enough fear in the police system. That way the police can never have the cultural excuse to do their crap because 'their life is in risk and it's a split second decision' because your lying on boring safe paperwork and court where you have plenty of time to think about your actions, and over %50 of this will probably be lawyers actions too.
What is the first steps? Probably allying in blue states with anti-police movements and working with them in lobbying for a state enforcement arm that enforces specifically against unjust plea deals, testilying, withholding exculpatory evidence and focusing on prosecutors with out of the norm high conviction rates first. You'd also have to make it pay as well as private, which will also be hard. A wealthy state like california can fund such a thing, and it would probably be small, like 40 lawyers & their support staff, and be crazy effective. Unjust plea deals will probably be last politically if it is at all possible because the system will scream about it will screech to a halt and to address that is a much bigger issue.
Obviously there are risks to opening up the floodgates to private criminal prosecution, so you need restrictions and checks to avoid abuse by the wealthy and powerful. However, in some sense, the wealthy and powerful can already do that in the current system via access to the DAs, so it is not as much of a risk increase as it would seem.
The key here is figuring out a robust set of restrictions. Just to get ahead of the responses, I do not claim to have a comprehensive solution, so there is no point quibbling with me about how my proposal is incomplete. Take the problems you point out as areas of improvement and think about how they could be solved.
They should. Instead the system protects itself by insisting that secrecy must be maintained to preserve public trust. That's the reason they give for making judicial complaints so secret that you can't even subpoena judicial complaints to show a pattern of bias or misconduct by a judge.
It’s just a misdemeanor in many states so the DA can indict them without a grand jury! This is important because DAs use felony charges to pardon cops and launder it through a grand jury (we all remember the Buffalo NY cops that pushed the 75 year old man to the ground and left him bleeding from the head — cops charged with felony but GJ refused to indict, it can’t be proved but it’s obvious the DA sandbagged it).
But DAs almost never charge cops with anything, even the so-called progressive ones in the bluest states files a few token indictments against the a few token cops and then went back to business as usual.
If police are actually subject to the same system as the rest of us it will work, but DAs have pretty much always refused to do it.
It district attorney's started prosecuting cops, the system would crumble and come to a fast halt. There is no credibility in court and the charade continues.
There are a ton of interests at play, and yes, voting a certain way might help, but reforming a corrupt system is definitely not as simple as "we just vote for the other guy this time".
Of course not. But do you see how that DA or PA are disincentivized to take on the police?
I don't see how to elect someone who doesn't have the same incentive with regard to the police. The fact that the disincentive to take on the police is such a fundamental part of how the job works is precisely why I don't think the problem can be solved by just electing a different DA; the system itself needs to be changed, and that requires a lot of coordination across multiple fronts. Voting for different people is necessary for that sort of change but not nearly sufficient, which is why I think that saying it's purely the fault of voters for electing the wrong people is a gross oversimplification.
The desire and laws written to do this sort of thing come from lobbying organizations like ALEC [0][1][2]. This and other similar organizations basically write "model laws" and hand them to legislators to pass. That's why all the "red" states suddenly decided to outlaw trans people at the same time.
They dodge lobbying oversight laws by having legislators become "members" of their club.
0 - https://en.wikipedia.org/wiki/American_Legislative_Exchange_...
1 - https://www.alecexposed.org/wiki/ALEC_Exposed
2 - https://www.commoncause.org/our-work/money-influence/alec/
Having studied thousands of police reports, what is almost worse than testilying is that most reports are works of fiction. And the reports are what gets the defendants into court in the first place. Testilying only matters if an officer takes the stand, and an officer often only takes the stand in a trial. And 99% of criminal cases are resolved by plea before trial in the USA because a defendant does not want to risk a trial where the officer can lie and send them away for decades.
I’m in total agreement though that if a police officer is found to have lied under oath, in statement, or report - they’re done. Same as one who discharges their firearm outside of a hostage/terrorist/school-shooting. Gunning down civilians, whatever their crime, is murder. Shooting someone because they are running and you can’t run fast - is murder.
Should be convict or ex-convict.
The report found him guilty of the beating and noted his testilying. I think he was given a few days suspension for this. No criminal charges, obviously.
In another case, I told a friend to investigate the background of the lead detective against him. When we ran his file we found he had already been fired from the police department for using the computer system to change the upcoming court dates for another officer so he would miss court and not testify against a friend of the detective who had been pulled over for a suspected DUI.
I always use FOIA to access the police department records during pre-trial for defendants. The prosecutors are supposed to supply useful information like this to the defense, but I've never known it to happen without some prodding.
A delay strongly implies they are trying to lie.
As a bonus, posting the video to YouTube within a short time proves you did not spend a lot of time editing it before posting it. This is increasingly important in the era of AI fakes.
This would make a great rule for court cases: Anyone who publically posts video within 48 hours is assumed to be in the right. Anyone who likely had video but did not post it within 48 hours is assumed to be in the wrong.
There is no legitimate reason cops do not post video of their shift as soon an they get back to the police station.
Cops just want power. They get power, and lie to us non-cops to keep power.
There is no such thing as a computer that cops use that they can not hack.
If one thinks of Almond Strowger, he nearly single handedly initiated the weeding out a specific form of corruption (corruption of human telephone operators, to redirect economic traffic) for about a 100 years by inventing the automatic telephone exchange and phone numbers.
What we need is bodycams with secure digital signatures. The camera signs the video when it makes it, the key set during manufacture and not accessible by *any* means. The public key for the camera can be accessed from the camera as well as from the manufacturer--the defense can verify the image actually came from the camera. I'd actually like to see this for all cameras but it's less important for others. (Note that this would *not* indelibly fingerprint an image--it would be like the EXIF data, the user could remove it if desired. You can make an image anonymous, you can't pretend an image is from some other camera.)
And, if that did happen, and I was the 10-year-old, I would prefer proof that justice was done over privacy. Source: I was sexually abused as a child, and the perpetrators only paid fines ("victim restitution") to avoid prosecution. One of my goals in life is to end that.
If I were the accused, I would also prefer evidence over privacy.
Anyone can do a FOIA to get anything released, but they must pay for the review and blurring of things that shouldn't be shown. Defense gets the raw video without paying.
I think the public needs to have the unedited video to know the truth.
For example, unedited police body cam videos can show if a neighborhood is getting better or worse over time.
Video of druggies shooting up over time can be used to retroactively track the distribution of a new illegal street drug.
I do understand the desire to blur the naked sexual assault victim, but there will be problems with that. If the video is unblurred, Internet sleuths can match multiple attacks to one attacker, or even discover several attacks in the same style and trace it back to a particular jail they were an in before where they learned techniques.
OK, one detail, the accused had a lengthy history of mental illness. The police and the prosecutor tried to paint this a some sort of joke and sought the death penalty! After much arguing and the legal definition of mental illness defined, a life sentence was given.
My co-worker begged all of us to sit down with our families and have a talk about the legal system and it's flaws.
To be fair, juries are an approximate averaging system of guesswork by people who weren't there, listening to other people who weren't there arguing for the interests of 2 sides who present different stories.
It's actually not great that everything you say will be used against you. Ideally, police should not be belligerent hateful scumbags eager to pin any crime they can at you. That they have to announce that they are, isn't really helping much. I wonder if it actually makes it worse - that they have come to see it as their right, their right to nail suckers who make the mistake of seeing them as fellow decent humans.
In other words, it doesn't mean "we're going to twist what you say as much as we can", it means "we'll tell the court whatever you tell us, even if that's self-incriminating".
Pretty much what you'd expect, really.
Prior to Miranda they didn't have to tell you shit, and were probably justifying it to themselves with some lame "Ignorance of the law is no excuse, so if you don't know that you have a right to an attorney, that there is no 'off the record' conversation with a cop, and that you don't have to tell us shit, then that's your own damn fault." justification.
I don't think the cops got this memo, could you please tell them.
The judicial system are the courts and judges who apply the law and adjudicate the cases brought before them, hence the judicial name.
Prosecutors and police are two branches of the same tree.
Which is why you should never talk to cops without your attorney, especially if you're being arrested.
https://en.m.wikipedia.org/wiki/Miranda_warning
Or were you referring to something else?
> anything you say can and will be used against you
which is a version that is much more common in fiction, and also what vintermann referenced.
Citation [1] actually uses the "can and may" verbiage.
Citation [2] refers to the "will" verbiage as "now familiar verbiage" in a footnote, but it doesn't seem to be arguing that that verbiage is prescribed or accurate -- just that it's now familiar. It also incorrectly quotes that verbiage as coming from the original court ruling, so clearly they lost track of where they actually got it from (since it's not there).
I did find a quora answer [3] which gave an origin story for the "can and will" verbiage, but at this point I'm not ready to trust anything written on the topic that doesn't have solid references.
[1] https://www.law.cornell.edu/wex/miranda_warning [2] https://web.archive.org/web/20230513064943/https://scholarly... [3] look for Mark Tarte's answer to https://www.quora.com/Why-does-the-Miranda-warning-say-can-a...
There's also nothing special about being arrested that makes it so that anything you say could be used against you in court. It's really a just reminder that your right to remain silent may have value to you.
* You have the right to remain silent
* That’s important because if you aren’t silent, they can use anything you say against you
The second point explains why the first is so important. And it’s important to tell people that being silent is their right and won’t be held against them, while what they say may be. Unfortunately it’s become so perfunctory that I think people don’t actually pay attention to the words and why they are the way they are.
Also? Look at Canada. Here, cops are also allowed to lie, we don't have Miranda rights, we don't have the strength of the 5th amendment, and while you're allowed to ask for an attorney, the police are in no rush to get you one and they'll continue questioning you without an attorney present. They're not supposed to question you without that attorney, but who's going to stop them?
Without truth there can be no justice.
It wasn't a particularly big deal - it was just a speeding ticket. But maybe that makes it even worse, that a cop is willing to casually lie about the smallest things.
In the big picture, maybe his success with his lie does more harm than even if he'd let go free someone he believed was guilty. Maybe I get to skate on a speeding ticket, but at least it doesn't give me a story I can tell everyone, for the rest of my life, about how the cops cheat and lie.
Maybe we can do something about complaints and misconduct for judges too?
Right now judicial misconduct is considered so secret that you can't even subpoena exculpatory contained in those complaints. The reasoning is that public knowledge of mistakes and wrongdoing would undermine the courts. I think that position is outdated and trust would be kmproved if mistakes were corrected and bad actors were removed from the system. This is especially important at the magisterial level where there is minimal training, minimal requirements, and often a background that leads to bias (lots of ex-cops as magistrates).
Part of why I bring this up is that I have submitted a complaint in the past and they simply closed it even though the magistrate was unprofessional, yelling, completely onesided (retired cop), etc. Some of the things like unprofessional conduct and yelling are even examples given by the judicial board, yet they simply closed the compliant without investigation. I guarantee this happens with the Giulio lists too - close it in favor of those in power.
The system is so corrupt/rigged at this point, I'm not sure if we'll ever get to a reasonable level of accountability and fairness. I guess it's always been this way (and worse) though.
Going to jail as a cop probably counts as that
Once both are passed, I think police will have less incentive to lie and violent encounters will be dramatically reduced. When citizens realize that failing to obey a lawful order results in long jail sentences, all kinds of bad behavior will melt away.
Any attempts to implement your proposal will lead to exactly one inevitable outcome: lawlessness. This is because, if the government does start punishing a certain class of private citizens for doing what the government forces them to do, private citizens will no longer voluntarily join that class.
I have over a decade of experience in prosecuting and defending cases under the UCMJ, I have an LL.M. in military criminal justice, I am qualified as a Special Trial Counsel, and I recently served as the Marine Corps Senior Defense Counsel for the National Capital Region.
Let me assure you that military law enforcement has qualified immunity.
The government "forces" the police officers to engage in this malfeasance?
No. On the contrary, it is the only good faith engagement with the issue. Bad faith arguments are in the majority on this thread.
> If a police officer's actions can be found to have been necessary to their duty, the laws already protect them.
Yes. By qualified immunity.
> Nobody proposes to "punish a private citizen for doing what the government forced that private citizen to do."
Yes. Removing immunity would do exactly that.
> The proposal is to hold them accountable when they exceed their remit.
That is already the substantive law. That's why the immunity is "qualified." *
(* EDIT: I should note that we're conflating a couple concepts here for the sake of general discussion, because the precise applicable doctrine depends on the method of holding them accountable. Qualified immunity is specifically a doctrine invoked in civil suits, typically in § 1983 suits.)
If it can be proven by a preponderance standard, the prosecutor should issue a Brady notice to the defense bar, which will in most cases naturally result in the police officer being fired or assigned to administrative duties.
What should happen when prosecutors won't prosecute, doesn't issues Brady disclosures?
If they have Brady material and don't turn it over, then I hope they get found out and disbarred.
I respect and appreciate your position. I believe we both have high expectations of prosecutors and law enforcement.
At the risk of presuming too much, your position wrt QI and other reforms might be summarized as "We already have sufficient rules. The rules must be followed. The proposed reforms would eliminate an important safe guards as well as not achieve the desired outcome."
From a practical standpoint, actual real-life laws already protect law enforcement officers in the process of their duties; the removal or codification of qualified immunity would not affect that in the slightest. Since the vast majority of qualified immunity invocations concern financial liability in civil suits, it would be simple to implement a liability insurance program (like medical malpractice insurance, but for police work) to shield officers from life-ruining financial responsibility for their actions.
> laws already protect law enforcement officers in the process of their duties; the removal or codification of qualified immunity would not affect that in the slightest
This is nonsensical. Qualified immunity is the very thing that protects law enforcement officers (and all other government officials) in the process of performing their duties.
To say that removing qualified immunity would have no effect on qualified immunity is not only tautologically false, it's a vile and dishonest attempt at gaslighting.
Fifteen states have the Law Enforcement Officer Bill of Rights codified into their statutes. The rest are either considering it or have something very similar codified into law.
Qualified immunity is not "the very thing" protecting law enforcement officers. It is, however, "the very thing" our elected representatives have almost no input into or control over. Removing qualified immunity would in fact not affect any of these actual laws, and replacing it with a codified law would enable more consistent and just application of the concept, which as I said before is currently just something a judge can decide whether and how to apply.
Correcting your ignorant claims is not 'gaslighting.' Your emotional distress over the matter does not qualify you to accuse me of abuse, and I don't appreciate your mischaracterization of my posts.
Sovereign immunity, and the qualified immunity for agents of the sovereign which arises as a corollary, is a fundamental principle of Anglo-American law. It has nothing to do with whatever patchwork of the U.S. code you seem to be implying.
From what the anti-polygraph people say, apparently it only takes about 30 minutes of training before most people can actually manipulate the polygraph in a controlled way.
The county I had lived in at that time was the worst. The guy in the sheriff's office that administered the lie detectors was "criminal scum" himself. For the longest time there were allegations of criminal behavior, but he finally pissed someone off and they hired a PI to follow him around. Caught this 40+ year old member of law enforcement giving minors alcohol at a party and hitting on them. It broke on the news and he was fired from his law enforcement position, but no criminal charges where ever brought...
What was even better, he was quietly brought back on as a consultant to administer lie detector tests!
Police, prosecutors and judges are incentivized and desperate to get a great record of convictions, and so they're positively motivated to do that by any means necessary. If you watch copaganda shows like NCIS or CSI, or the lovely Canadian Murdoch Mysteries, you will be introduced to a lot of smart scientists who use a lot of smart science to catch bad guys. Well, guess what, a lot of the "science" actually used in court, and believed by everyone on all sides of the case, and the spectators as well -- that "science" is fake, it's quackery, it's just an excuse to get convictions.
Now there are whole categories of testimony and evidence which are always excluded and stricken from the record, because they are known to be invalid, such as "hearsay", and I think that if courts and the justice system compiled lists of pseudoscience and quackery, and then excluded that sort of crap out of hand, we would approach fairer trials and better justice for all.
https://www.theatlantic.com/politics/archive/2015/04/csi-is-...
(So not just the pseudoscience and quackery but also the manipulation of replicated science)
However, I do believe they have a role in law enforcement. The same hardware can be repurposed for a guilty knowledge test. The police keep secret the details of the crime. If they catch a suspect they hook them up to a lie detector and make them repeat the details--some true, some false and compare the reactions. (I do not consider this compelled testimony as they're just reading a script.) Someone who shows a sufficient pattern of hitting on the true ones knows the details. It won't false positive because the innocent doesn't know which answers are the guilty ones (to be safe the person doing it should likewise not know so you don't get a Clever Hans effect) and won't tense up because if it. It could statistically but if you have enough questions you can make this possibility vanishingly small. There still is a chance of a false negative if the guy can beat it (unlikely) or actually didn't note the details you're asking about.
"The fact that a witness is employed by law enforcement is just another witness. No better. No worse than anybody else that's going to take the stand. And you, ladies and gentlemen, will determine the truthfulness, the veracity, and the weight of the evidence, and the testimony they're are going to be giving to you."