American Criminal Law Review
Our legal system treats the police as if they are impartial fact gatherers, trained and motivated to gather facts both for and against guilt, rather than biased advocates attempting to disprove innocence, which is the reality. Because of its partiality in favor of officers, the criminal justice system lacks the appropriate structure to expose and effectively deter police lies, which distort the truth about criminal or unconstitutional conduct.
This Article, presented in three parts, argues that the current system should be changed to provide the structure necessary to promote honest police work. Specifically, it urges a modification to the exclusionary rule that will encourage police to tell the truth about the lies they tell and the potentially unconstitutional conduct they commit. In other words, it advocates for an exclusionary rule tailored especially for police lies.
Part I catalogs the evidence that police lie. It illustrates that police lies are a prevalent part of many American criminal prosecutions. It also demonstrates that some of these lies interfere with accurate substantive outcomes, meaning that some innocent people have been wrongly convicted because of the lies. Part I further demonstrates that truth-distorting lies are decaying the public's confidence in the integrity of our criminal justice system and reducing the protections supposedly guaranteed by the federal Constitution, jeopardizing, in the long-term, the likelihood that juries and judges will continue to believe the government's evidence in criminal cases.
Part II considers what the Supreme Court has said, expressly or implicitly, about police lies, the exclusionary rule, and other procedural rules that advance or inhibit police dishonesty, and it examines other components of our criminal justice process that promote police lies. It explains that the Supreme Court's precedent reveals that the Court is ambivalent about police lies. Some of the Court's precedent discourages such lies and other decisions show indifference toward them.
The third Part differentiates between two distinct types of police lies: (1) those that expose the truth; and (2) those that distort it. It urges the adoption of a modified exclusionary rule for criminal cases that hinge on police credibility. It argues for maintenance of the status quo for cases involving police lies that expose the truth regarding a defendant's criminal behaviors but contends that harsher, more certain, and immediate consequences must follow when a judge or jury finds significant evidence that an officer lied to distort the truth about a defendant's actions, statements, or culpability, or about the officer's own conduct. Finally, in cases in which the police "come clean" about lies they tell suspects or potentially unconstitutional conduct they commit when trying to "catch the bad guy," the modified exclusionary rule proposed here provides for significantly more judicial and citizen oversight to assess whether the ends of justice necessitated those police lies, given the facts and competing interests in the case.
Melanie D. Wilson, An Exclusionary Rule for Police Lies, 47 Am. Crim. L. Rev. 1 (2010).