Irving Younger, "The Perjury Routine" The Nation, May 3, 1967, pages 596-597


Mr. Younger is professor of law at New York University School at Law. He was formerly Assistant United States Attorney for the Southern District of New York.


On March 20, in McCray v. Illinois, the Supreme held that when, on being questioned as to whether there was probable cause to arrest a defendant, a policeman testifies 'that a “reliable informant” told him that the defendant was committing a crime the policeman need not name the informant, Justice Stewart, for himself: and four other members of the Court, said that “nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing to assume the arresting officers are committing perjury.”

Why not? Every lawyer who practices in the criminal courts knows that police perjury is commonplace. The reason is not hard to find. Policemen see then selves as fighting a two‑front war‑against criminals in the street and against "liberal" rules of law in court. All's fair in this war, including the use of perjury to subvert "liberal" rules of law that might free those who "ought " to be jailed. And even if his lies are exposed in the courtroom, the policeman is as likely to be indicted for perjury by his co‑worker, the prosecutor, as he is to be struck down by thunderbolts from an avenging heaven.

It is a peculiarity of our legal, system that the police have unique opportunities (and unique temptations) to give false testimony. When the Supreme Court lays down a rule to govern the conduct of the police, the rule doe not, enforce itself. Some further proceeding, such as the probable, cause" hearing in McCray is almost always necessary to determine what actually happened. In Mapp v. Ohio, for example. the Supreme Court laid down the rule that evidence obtained by the police through an unreasonable search and seizure may not be used in a state criminal prosecution. But before applying the rule to any particular case, a hearing must be held to establish the facts. Then the judge decides whether those facts constitute an unreasonable search and seizure. In Miranda v Arizona, the Court held that a suspect must be fully warned of his right to remain silent and to the assistance of counsel before his statements will be admissible against him. But in any particular case, as under Mapp a hearing must first be held to determine whether the suspect was in fact properly warned. Only if the judge concludes that he was properly warned do his statements come into evidence against him.

Such hearings usually follow a standard pattern. The policemen testify to their version of the circumstances of the search or of the interrogation, always reflecting perfect legality. The defendant testifies to his version, always reflecting egregious illegality. The judge must choose between two statements. and, not surprisingly, he, almost always accepts the policeman's word.

The difficulty arises when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them. and perhaps in nearly all of them. Narcotics prosecutions in New York City can be so viewed. Before Mapp, the policeman typically testitied that had stopped the defendant for little or no reason, searched him, and found narcotics on is person. This had the ring of truth. It was an illegal search (not based upon probable cause"), but the evidence was admissible because Mapp had not yet been decided. Since it made no difference, the policeman testified truthfully. After, the decision in Mapp it made a great deal of difference.

For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed. Then the police made the great discovery that if the defendant drops the narcotics on the ground, after which the police man arrests him, then the search is reasonable and the evidence is admissible. Spend a few hours in the New 'York City Criminal  Court nowadays and you will hear case after case in which a policeman  testifies that the defendant dropped the narcotics on the ground whereupon the policeman arrested him.

Usually the very language of the testimony is identical from one case to another. This is now known among defense lawyers and prosecutors as "dropsy" testimony. The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman. It follows that at least in some of these cases the police are lying.

Precisely beause a judge is limited to the evidence in the particular case before him, judicial recognition of the problem of police perjury is extremely rare. It happened in 1965, however, in the United States Court of Appeals for the District of Columbia. In Veney v. United States, the prosecutor offered evidence that each defendant had spontaneously apologized to the victim. Such spontaneous apologies had, six years before, been held admissible despite unlawful delay in arraigning the defendant. Judge J. Skelly Wright, in a concurring opinion, wrote:


For some time now I have been curious and concerned about evidence offered by the  Government, appearing again and again in criminal cases showing that the defendant, at the lineup or other confrontation with the complaining witness, had, while in the presence and custody of the police., "spontaneously and voluntarily" apologized for his misdeed. The word "apologize " would not ordinarily expected to be in the vocabularies of the most poorly educated defendants. And even if it were, it seemed more than passing strange to me at least, that this phenomenon of contrition should assert itself so soon after the offensive act. I began to search to solve the mystery. My efforts were first rewarded by my discovery of the case [in which the court had held spontaneous apologies by defendants admissible despite delay    in arraigning them] . . . Since our ruling  in [that case], .and, particularly in the more recent past,, "spontaneous" apologies by defendants have been offered by the Government and received in evidence in criminal cases with unusual frequency ‑‑usually supported by testimony that the apologies were not suggested or inspired by the police.... In view of the above, It appears to me that the time is ripe for some soul searching in the prosecutor's office before it offers any more "spontaneous" apologies in evidence.


This year has also seen the beginning  of' official attempts to cope with the problem of police perjury. In March 1966, the American Law Institute promulgated a Model Code of Pre‑Arraignment Procedure, which provides that the police must make a tape recording of their questioning of an arrested person in order "to help eliminate factual disputes concerning what was said." More recently the 20th police precinct in New York City has begun to tape‑record all interviews with suspects.

But there will be no tape recordings on the streets, and perhaps the Supreme Court in McCray should not so casually have rejected the idea of a constitutional presumption that policemen commit perjury. There is ample factual basis for the presumption and the courts, despite their reticence, are no strangers to those facts. Indeed, the dissenters in McCray hinted as much when they pointed out that "it is not unknown for the arresting officer to misrepresent present his connection with the informer, his knowledge of the informer's reliability, or the information allegedly obtained from the informer."

Far from adopting it a presumpiion of perjury. the McCray case almost guarantees wholesale police perjury. When his conduct is challenged as constituting an unreasonable search and seizure, all the policeman need say is that an unnamed "reliable  informant" told him that the defendant was committing a crime. Henceforth, every policeman will have a genie‑like informer to legalize his master's arrests.

This affronts the dignity of the administration of justice. And since there will now always be in informer to establish "probable cause," hence making all searches and seizures reasonable, and all evidence admissible, however obtained. McCray marks the end of the short life of Mapp  v. Ohio.