Cops' Credibility

The defendant in a recent Chicago trial was charged with carrying a sawed-off shotgun into a bar. His defense was that a companion, who had already pleaded guilty to a related offense, had also been the person holding the shotgun. Policemen who made the arrest stated flatly that they had seen the accused drop the shotgun and kick it away when they entered the saloon. Nonetheless, the jury voted for acquittal. Two weeks ago in Los Angeles, a policeman testified in a narcotics case that the defendant had indeed asked to see a search warrant, but had willingly admitted the officer without it. An incredulous judge refused to let the case go to the jury and all but called the witness a liar.

Despite their differences, both cases illustrate a persistent legal trend. Until a few years ago, a cop who testified with assurance was a prosecutor's best asset. Today, the badge is sometimes a downright liability.

Slow Erosion. The change in courtroom attitude is most evident in urban areas, where cop-wary blacks and Spanish-speaking people now have larger representation on juries than they had in the past. That is only one part of what H. Clay Jacke, a Los Angeles attorney (and former policeman) calls the "slow erosion" of cops' courtroom status. Detective Tom Moran, 23-year veteran on the Boston force, observes: "Our credibility bottomed-out during the late '60s. We had all the civil rights cases, the riots, the antiwar marches, and we were ordered to control them. Corruption in government and scandals in police departments didn't help either."

Former U.S. Prosecutor George Higgins, author of The Friends of Eddie Coyle, thinks that "it's part of a general decline in respect for authority." The recent spate of movies, books and TV shows that portray police fallibility and worse has also damaged policemen as witnesses. "They just no longer have the image of the untarnished good guy," says Chicago Judge Richard Fitzgerald.

Another key ingredient seems to be jurors' and judges' growing awareness of police perjury. Many officers "have become advocates in trials, convinced the end justifies the means," says former Los Angeles Prosecutor Johnnie Cochran, who is now a defense lawyer. The perjury pattern was noted judicially in 1965 by J. Skelly Wright of the D.C. Court of Appeals. After his court had admitted as evidence a defendant's "spontaneous apology" for a misdeed, Wright discovered that more and more police began testifying about suspects who "spontaneously and voluntarily" apologized--in effect, confessed to crimes.

In 1970 New York City Judge Irving Younger wrote an opinion condemning the far more widespread practice of "dropsy" testimony. The Supreme Court had ruled that evidence abandoned by a suspect is no longer constitutionally protected. This logical legal distinction has resulted in literally hundreds of police every year reporting in court that defendants dropped incriminating evidence--usually narcotics --thereby justifying arrest. There are local variations. Los Angeles recently had a rash of "smell" testimony after one police officer successfully justified a search by saying that he had smelled marijuana on the defendant. In New York, judging by some recent testimony, ghetto residents often leave their apartment doors open with bags of heroin "in plain view." This allows policemen who just happen by to make arrests.

Policemen, of course, often shade their testimony out of a sense of duty. Frustration builds when a defendant "walks" (goes free), even though a cop is certain of his guilt. Says Detective Moran: "Where the defendant gets a bunch of friends and they lie his way home, some cops think, 'Well, they're lying like that, so I'm going to do it too.' " Columbia Law Professor Richard Uviller, a former prosecutor, observes that false testimony by cops can be divided into two categories. The all too familiar "white lie" does not directly bear on a suspect's guilt or innocence. A cop may say falsely, for instance, that he gave the required warnings about a suspect's rights because, to a policeman, that is merely a bothersome technicality. According to Uviller and most other observers, the more serious form of police perjury--false testimony about actual guilt or innocence--is relatively rare.

That may be so, but the Supreme Court recently approved some new and troubling tactics. In one case, it ruled that even when evidence is illegally seized, it can be used as a basis for questioning in grand jury hearings. Though such evidence is still barred at actual trials, the decision can hardly be expected to prompt more care by police in conducting searches--or in testifying about them later. The court has also held that a traffic offender whom police are in the process of arresting may be thoroughly searched. Some cynics anticipate a flood of testimony about defendants who "did run a red light, after which a body iGo SUN-TIMES search did turn up two tablets of LSD."

For all their tarnished image, police do manage to maintain courtroom respect --in some cases and in some places. Boston Defense Attorney Joseph Balliro points out that "anything that jurors really can't relate to will make them harden up. Motorcycle gangs, homosexuals, radicals, any defendants who threaten the juries emotionally, economically or politically" seem to lend credibility to the policeman as witness. "Suburban, small-town juries," says Balliro, "view a cop as the boy next door because, in a small town, he is." And they believe him.

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