In an expected move, Boston Police commissioner Edward Davis enacted a sweeping new policy that forbids lying by Police Officers under certain circumstances. If an Officer is found to be lying under specific circumstances they are subject to termination. In a Boston Herald article the enactment of the policy is issued with the following preface,
“The following statement is issued in an effort to put employees on notice that untruthfulness will not be tolerated by the Department. When an officer is found to be untruthful, it damages the officer’s ability to testify in future court proceedings. Testifying in court is a fundamental job requirement for a police officer, and therefore it is essential that an officer’s integrity and credibility are intact. Should the Department determine that an employee has been untruthful in any report to the Department, during any sworn testimony or in an internal investigatory interview including interviews at Internal Affairs and Anti-Corruption, termination will be the presumptive disciplinary action, consistent with just cause principles”
The Boston Police department is currently struggling with the same broad scale issue that every department has been. The difference is that instead of doing so in theory, they are forced to deal with it openly. Several high profile cases have come to light highlighting the obvious issues presented with the topic. On the one hand is the civil liberty standpoint, 5th amendment, and 1st amendment protections, on the other is the safeguarding of a public trust.
I cannot think of a Police Officer that I have ever met who wasn’t told when they started to ensure their credibility stays intact throughout their career. The ability to testify, and therefore the credibility of an Officer who is doing it, are central to our ability to do our jobs and maintain the public trust. The topic of Officers lying isn’t a new one, in Kyles v. Whitney 514 U.S. 419 (1995) the court found that the prosecution has an affirmative obligation to disclose information to the defense. The court stated “The prosecution’s affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th-century strictures against misrepresentation and is of course most prominently associated with this Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963). See id., at 86 (relying on Mooney v. Holohan, 294 U.S. 103, 112 (1935), and Pyle v. Kansas, 317 U.S. 213, 215-216 (1942)). Brady held:
“that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S., at 87; see Moore v. Illinois, 408 U.S. 786, 794-795 (1972). In United States v. Agurs, 427 U.S. 97 (1976), however, it became clear that a defendant’s failure to request favorable evidence did not leave the Government free of all obligation. There, the Court distinguished three situations in which a Brady claim might arise: first, where previously undisclosed evidence revealed that the prosecution introduced trial testimony that it knew or should have known was perjured, 427 U.S., at 103-104;(fn7) second, where the Government failed to accede to a defense request for disclosure of some specific kind of exculpatory evidence, id., at 104-107; and third, where the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way. The Court found a duty on the part of the Government even in this last situation, though only when suppression of the evidence would be “of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Id., at 108.”
Basically, there is an affirmative obligation on prosecutors to turn over evidence that may tend to prove or disprove the innocence of the accused. Whether a Police Officers’ Personnel file contains information relating to the Officers credibility determined through internal affairs investigations is a piece of evidence for the defense attorney to use during trial. The result of this is the so called “Brady Letters” which many Chiefs are now finding themselves sending out or handling requests for by Defense attorneys. So the natural question comes up, if a Police Officer is unable to testify effectively in court exactly what use are they?
The largest number of employment disciplinary cases in the last few years have come from the area of Lying. Civil Service has been consistently upholding firings for it, and has found that a Police Officer without credibility is a liability to the Community they work. These cases have also been upheld at the superior court and appellate level.
Police Officers are used to having special laws restricting their lives. Officers aren’t allowed to smoke, must live within a certain distance from their cities or towns, etc. A narrowly-tailored policy (employee has been untruthful in any report to the Department, during any sworn testimony or in an internal investigatory interview including interviews at Internal Affairs and Anti-Corruption) that outlines what has already been decided in courts and at the civil service commission wouldn’t seem to be outrageous.
In fact, the offense of Lying during an investigatory hearing resulting in firing could conceivably come out of a minor violation of policy such as whether they were wearing their hat. The simple lesson to every Police Officer is this; don’t lie.
Attorney Ronald A. Sellon