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'Testalying' Claim Uses Too Broad a Brush : Police: The sweeping charge that cops commonly lie under oath is irresponsible and calls lawyers' ethics into question.

March 26, 1995|JEROME H. SKOLNICK | Jerome H. Skolnick teaches in the jurisprudence and social policy program at UC Berkeley's Boalt Hall School of Law. He is co-author of "Above The Law: Police and the Excessive Use of Force" (Free Press, 1993)

Do cops "testalie"? That was the charge made on national television by Alan Dershowitz, Harvard law professor and O.J. Simpson defense consultant, and disputed by police, especially in Los Angeles. How should we think about police deception?

Although our moral sense tells us that lying is wrong, cops--like most of us--lie sometimes. Unlike most of us, they work within a contradictory moral order that sometimes demands falsehood as well as truth. For example, in "sting" operations, cops pretend to be drug buyers or fences. They are allowed to do that so long as they don't put the idea of committing the crime into the mind of the drug dealer or the person who sells stolen property. The law permits such deceit for "end justifies the means" reasons.

Similarly, police interrogators are authorized to lie to elicit admissions or confessions. They may falsely tell a suspect that his fingerprints were found at the scene or that his crime partner has confessed.

But police are not allowed to use ruses to gain entry without a search warrant, or to obtain a search warrant with a false affidavit. And like everybody else, they are not permitted to lie in court under oath.

Nobody really knows how often lying under oath happens, but it does occur. When the rule excluding illegally seized evidence was imposed by the Supreme Court in 1961, a follow-up study found that New York City cops often falsely testified that suspects had dropped the drugs on the ground in plain view. This came to be known as "dropsy" testimony.

Police may lie for more self-interested reasons: to cover up corruption, as the Knapp or Mollen Commission investigations of the New York City police showed, or to cover up brutality, as documented in several instances involving the LAPD. (The Mollen Commission said this about the New York City police: "The practice of police falsification in connection with such arrests is so common in certain precincts that it has spawned its own word: testalying. ") In the Rodney King beating, if there hadn't been a videotape, the cops doing the beating could count on the cops who watched to back them up and on higher-ups in the LAPD to believe the backups.

But--and it's a big but--I don't reflexively believe or disbelieve police testimony. Cops who are guilty of lawbreaking will, like other criminals, lie to save themselves. The acceptability of such fabrications varies with the culture of the police organization--and positive changes have taken place since Willie Williams became Los Angeles police chief.

After decades of observation, I'd say that most police testify straightforwardly most of the time. Unfortunately, it doesn't take many cops who demonstrably perjure themselves to cast a pall of doubt over all police testimony, especially in cities where citizens already have reasons to mistrust police.

My former editor and publisher, the late Erwin Glikes, a political conservative, encouraged me to write a book about police brutality after his experience on a New York City jury during a time when the Rodney King videotape was repeatedly played on television. Glikes was deeply troubled because some of his fellow jurors would not credit the testimony of any cop after having seen the videotape.

Which brings us to the Simpson defense team's assertion that Detective Mark Fuhrman, allegedly a racist who hates interracial marriages, carried a glove from the crime scene to Simpson's estate and planted it there, and that his fellow detectives participated in this frame-up.

I am skeptical. It's a long leap from covering up corruption or brutality to a complex frame-up of a celebrity defendant in a brutal double homicide. Are the LAPD detectives devilishly clever, well-organized racists who are willing to let the true killer of Nicole Brown and Ron Goldman go free in order to punish an innocent football hero for the "crime" of marrying a white woman? I find that implausible--as much as I did the L.A. cops' assertion that they used no more force than was necessary to subdue Rodney King.

Fuhrman's testimony that he did not plant the glove was made especially credible by F. Lee Bailey's preposterous theory that Fuhrman carried the extra large glove in his sock. Less credible is Fuhrman's testimony that he hasn't used the "N-word" in the past 10 years. But whether he did or didn't is collateral, a red herring tossed in to inflame African American jurors in racially sensitive and volatile Los Angeles. Like the sweeping charge that cops routinely "testalie," the injection of race may work to hang the jury or even to acquit Simpson. Nevertheless, in a larger civic sense, it is highly irresponsible and will make the concept of "lawyers' ethics" seem like an oxymoron to many of the trial's viewers.

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