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