Police, Plus Perjury, Equals Polygraphy
Dripps, Donald A., Journal of Criminal Law and Criminology
Criminal procedure scholars devote themselves to debating the proper scope of the Constitution's limits on police methods. The application of constitutional rules, however, depends entirely on how facts are found on motions to suppress or at trials of civil rights actions. Police perjury, if accepted, can defeat any constitutional rule. Thus, the debates about stop-and-frisk, automobile searches, and police interrogation have a scholastic quality; no matter what rule appellate courts adopt, police may circumvent that rule by persuading trial courts to accept an incorrect account of the facts.
If police perjury were rare, academic discussion of it would lose little relevance. Unfortunately, criminal procedure scholars agree that police perjury is not exotic. Police perjury has been called "pervassive"(1) "an integral feature of urban police work,"(2) and the "demon in the criminal process."(3) This essay suggests a new strategy for dealing with this problem.
My thesis holds that courts deciding suppression motions should admit expert testimony based on polygraph examinations, and draw an adverse inference from the failure to introduce such evidence, whenever the outcome of the dispute depends on the credibility of conflicting testimony given by the defendant and the police. To avoid confusion, I would like to set out at the beginning the precise approach I defend.
At the close of the testimony at a hearing on a suppression motion, upon motion by either party or sua sponte, the court should determine whether the outcome depends on resolving a conflict in the testimony on the basis of credibility. If the court finds that the issue turns on credibility, the court should inquire whether either party is willing to supplement the record with a polygraph examination of the party's witness or witnesses. Each party could elect to supplement the record in this way, but the decision to do so would have to be made at that time. Neither side could wait for the outcome of the other's examination; and the results of any examination would be admissible regardless of the result.
Examinations would need to be administered by a qualified examiner, after notice to the opposing party that enabled the opposing party's representatives to attend the examination. The judge would not be bound by the results of the polygraph examinations, but could consider them along with all the evidence in the case. The results, however, would become part of the record, and in an appropriate case might be considered, along with all the circumstances of the case, by an appellate court in deciding whether the factual findings below were clearly erroneous.
My argument proceeds through four stages. First, I illustrate the corrosive effects of swearing contests involving the police by discussing the case of Florida v. Bostick.(4) Second, I demonstrate that the available evidence strongly indicates that police perjury is a widespread phenomenon. Third, I show that polygraph examinations can make a powerful contribution towards determining the truth, and that the usual reasons for excluding polygraph evidence from judicial proceedings do not apply in the context of swearing contests in which one of the witnesses is a police officer. As the Fifth Circuit recently recognized in United States v. Posado,(5) the Supreme Court's Daubert decision,(6) which liberalized the standard for admissibility of expert testimony, creates an opportunity for introducing polygraph evidence in the suppression context. Finally, I submit that even if polygraph evidence were of doubtful reliability, its admissibility to resolve swearing contests would give police departments a powerful incentive to minimize the number of swearing contests by making available reliable proof of what happened during an encounter between the police and a citizen.
II. The Perverse Dynamics of Swearing Contests Involving the Police
Those who follow criminal procedure developments in the Supreme Court will remember Florida v. …