LEGAL SYSTEM STRUGGLES WITH HOW TO REACT WHEN POLICE OFFICERS LIE

It's one of the most common accusations by defendants and defense
attorneys -- that police officers don't tell the truth on the witness
stand. Of course, defendants themselves can be the ones lying, but
the problem of police perjury -- and what can be done about it -- is
being debated anew. Fueling the discussion are recent court cases in
New York City and Boston that indicated officers may have lied and a
U.S. Supreme Court ruling this month that could have broader
implications for cases in which improperly obtained evidence is in dispute.

Questionable testimony by police comes up most often in firearm-or
drug-possession cases in which officers often testify that a
defendant had a bulge in his pocket -- which they thought might be a
gun -- or dropped drugs in plain sight as they approached him, giving
the officers the right to seize the contraband. Defense lawyers say
in many of these cases, officers are "testilying" and that the guns
or drugs were actually discovered when their clients were unjustly
frisked by officers. They also say testilying frequently occurs in
more serious cases.

In Boston, a federal judge last week ruled that a police officer
there falsely testified at a pretrial hearing in a gun-possession
case about the circumstances of the defendant's arrest. The judge,
Mark Wolf, is considering sanctions against the prosecutor for not
immediately disclosing that the officer's testimony contradicted what
he told prosecutors beforehand.

A federal judge in Brooklyn, N.Y., last fall ruled that a U.S.
marshal and a New York City police officer lied when they testified
that a defendant dropped two bags of drugs in front of them and then
invited the officers to his apartment, where he revealed a large
cache of cocaine. Though few officers will confess to lying -- after
all, it's a crime -- work by researchers and a 1990s commission
appointed to examine police corruption shows there's a tacit
agreement among many officers that lying about how evidence is seized
keeps criminals off the street.

To stem the problem, some criminal-justice researchers and academic
experts have called for doing polygraphs on officers who take the
stand or requiring officers to tape their searches.

A Supreme Court ruling this month, however, suggests that a simpler,
though controversial, solution may be to weaken a longstanding part
of U.S. law, known as the exclusionary rule. The 5-4 ruling in
Herring v. U.S. that evidence obtained from certain unlawful arrests
may nevertheless be used against a criminal defendant could indicate
the U.S. is inching closer to a system in which officers might not be
tempted to lie to prevent evidence from being thrown out.

Criminal-justice researchers say it's difficult to quantify how often
perjury is being committed. According to a 1992 survey, prosecutors,
defense attorneys and judges in Chicago said they thought that, on
average, perjury by police occurs 20% of the time in which defendants
claim evidence was illegally seized.

"It is an open secret long shared by prosecutors, defense lawyers and
judges that perjury is widespread among law enforcement officers,"
though it's difficult to detect in specific cases, said Alex
Kozinski, a federal appeals-court judge, in the 1990s. That's because
the exclusionary rule "sets up a great incentive for...police to lie."

Police officers don't necessarily agree, says Eugene O'Donnell, a
former police officer and prosecutor who teaches law and police
studies in New York. "Perjury is endemic in the court system, but
officers lie less than defendants do because generally they aren't
heavily invested in the outcome of the cases," he says.

Testilying may have taken off after a 1961 Supreme Court decision
boosted the exclusionary rule by requiring state courts to exclude --
or throw out -- some evidence seized in illegal searches, such as
when police frisk people without probable cause or search a residence
without a warrant. Immediately after the decision, Mapp v. Ohio,
studies showed that the number of annual drug arrests in the U.S. --
most cases are prosecuted in state court -- didn't change much but
there was a sharp increase in officers claiming that suspects dropped
drugs on the ground. "Either drug users were suddenly dropping bags
all over the place or the cops were still frisking but saying the guy
dropped the drugs," says John Kleinig, a professor at John Jay
College of Criminal Justice.

This month's Supreme Court decision added an exception to the
exclusionary rule by holding that the prosecution of an Alabama man
for drug- and firearm-possession charges was valid, even though the
contraband was found after the man was wrongly arrested and searched.
Police officers had mistakenly thought he was subject to an arrest
warrant. Throwing out evidence because of wrongful searches and
arrests "is not an individual right and applies only where its
deterrent effect outweighs the substantial cost of letting guilty and
possibly dangerous defendants go free," wrote Chief Justice John Roberts.

Civil liberties advocates and defense lawyers say losing the
exclusionary rule would harm the public. "We'd risk far greater
invasions of privacy because officers would have carte blanche to do
outrageous activity and act on hunches all the time," says JaneAnne
Murray, a criminal defense lawyer in New York