An Exclusionary Rule for Police Lies

Abstract

Although the Supreme Court has often said that truth is an imperative to justice, we now know that police officers, the key investigative component in our criminal justice system, lie. How often do the police lie? No one knows for sure. But credible reports of police lies are common.

Because our legal system treats the police as if they were 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, the criminal justice system lacks the appropriate structure to expose and effectively deal with police lies that distort the truth about criminal or unconstitutional conduct.

This Article argues for a modification to the exclusionary rule that will encourage police to tell the truth about truth-distorting lies they tell and potentially unconstitutional violations they commit. It first catalogs the evidence that police lie, demonstrating that police lies are a prevalent part of many American criminal prosecutions. It then considers what the Supreme Court has said, expressly or implicitly, about police lies, the exclusionary rule, and other procedural rules that influence the value of police lies to the current system of criminal justice. It distinguishes between two meaningfully different types of police lies: 1) those that expose the truth; and 2) those that distort it. It ultimately urges adoption of a new framework for criminal cases that hinge on police credibility. While the Article proposes to maintain the status quo for cases involving police lies that expose the truth regarding a defendant's criminal behaviors, it argues for harsher and more immediate consequences when a judge or jury finds that the balance of evidence suggests that an officer has lied to distort the truth about a defendant's actions, statements, or culpability, or about his or her 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 new structure provides more judicial and citizen oversight for determining whether the ends of justice warrant police lies or misconduct, given the facts and circumstances of the individual case.