We Need New Rules on Police Testimony
The video recording revolution happened. So why do we still take cops' word for things?
Large portions of our criminal justice system are predicated on police testimony. When the police pull your car over and write you a ticket, if you fight it, the cop will come to court and testify that he observed you running the stop sign or driving 15 miles over the speed limit. He will be believed, and you will be convicted.
When someone calls the cops to come to a house because of a domestic abuse, the cop will assess who she thinks caused the altercation and make arrests accordingly. The decisions and observations of the cop will have a strong influence on the ultimate decision as to whether to bring a prosecution, and what charges and punishment to seek.
When a cop observes a person and decides whether to conduct some sort of search, the cop’s observations will be believed by the courts and relied on in rejecting a Fourth Amendment challenge to the search.
When a cop is sued for violating the Constitution, the cop’s testimony will be given a lot of credit by the jury and will often make the difference as to whether the plaintiff will win his suit.
If a suspect is interviewed by the FBI, the FBI agents will take notes and testify as to their recollections of what the person said. If the agents claim the person said anything incriminating, that can be the basis for a conviction and prison sentence.
In all these situations and so many more, the entire system runs on the testimony of law enforcement officers. And before recent times, it was somewhat understandable. After all, it was the best we could do. But now we can do better. We have cameras.
And, importantly, we also now know (if we ever didn’t know) that police officers give plenty of false testimony. We have extensive examples of cases where video recordings contradicted police testimony. We’ve seen police perjury in high profile cases. We’ve seen convictions reversed when cops were caught lying.
So why the heck do we still treat police testimony as the gospel truth in our criminal justice system?
Police now have dashcams and bodycams. This means that every interaction with a police officer is now recorded. And yet, courts routinely accept completely unverifiable, subjective statements about people’s “suspicious” demeanor from police officers. Why do we do this? It’s certainly not because police officers can be counted on to tell the truth. Even if we accept that most police officers are decent people caught in a bad system, the fact of the matter is that as long as DA’s, police departments, and fellow officers want cops to lie or shade the truth to get convictions, uphold searches, and cover up for mistakes and misconduct, cops are going to do it. They are human.
It’s 2021. We no longer need to rely on police testimony. And we basically shouldn’t. Here are some proposed reforms:
Traffic court proceedings should be based on video evidence or corroborated eyewitness testimony. Police departments should install cameras on all sides of police vehicles that record vehicle speed as well as video. (This will protect police officers as well.) If a cop says you are speeding or made an unsafe lane change or had a burned out taillight, bring in the video. If it’s just the cop’s say so, and there’s no other witness to corroborate the cop’s testimony, the defendant should be acquitted.
All police interactions should be recorded. Every one. No more of this “FBI policy is to only take notes”. No. We don’t believe you. Bring in a video recording of the confession, or it doesn’t come into evidence.
All police testimony about people’s demeanor or how they appear must be corroborated by the video. If the video in the DUI case doesn’t show the defendant stumbling out of the car, the cop can’t testify to it. If the video doesn’t show the defendant shifting around his pockets, the cop can’t testify to it.
Additionally, police perjury needs to be prosecuted. In all of these cases where the “video contradicts the officer’s testimony”, perjury charges need to be brought. The federal government should deny law enforcement assistance and funding to any police department where there isn’t a protocol in place for the prosecution of officers caught lying in court.
There are many problems with the police that are not solvable. But police perjury basically is. You simply have to design the legal system to (1) minimize the role of police testimony and (2) make clear to cops who get caught lying in court that the DA and the department are not going to cover for you and you are going to prison.