2000 Conference materials
Legal Officers Section
International Assn. of Chiefs of Police

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The Untruthful Officer:

A Proactive Management Approach

Legal Officers Section
Annual Conference
International Association of Chiefs of Police
San Diego, California
November 12, 2000

By Carl Milazzo Esq.
Former Legal Advisor
Fayetteville NC Police Dept.
E-mail: cmilazzo@hotmail.com

Table of Contents
I. Introduction
II. Law
III. Recommendations
IV. Additional

    I. Introduction

     Integrity is one of the most important character foundations of a good police officer, but there is a growing frustration at what seems to be an expanding lack of integrity and an even greater lack of support for disciplinary measures by politically elected or appointed boards. The root of all evil in law enforcement can be traced to a lack of integrity, from excessive force to uninspired work performance. There are severe legal consequences for not properly managing the untruthful officer, and there are some proactive steps that should be implemented to reduce the potential for an organizational tolerance or culture of untruthfulness. Common issues tend to surface when during disciplinary proceedings involving integrity violations. They are:

     A. Little lies – Are all lies the same? Should every act of untruthfulness receive the same level of discipline, or are there distinguishing factors that you can consistently use to justify disparate discipline? Assuming you do, how do you justify the distinction and convince officers that the different discipline is fair, when you are often restricted from discussing the details by statutory personnel privacy restrictions?

     B. Internal Investigations – How often have you seen an otherwise competent officer lie about some minor rule infraction that would have merited insignificant discipline, yet they continued on a downward spiral that ended their career? What benefit do they perceive in lying when telling the truth would have led to less discipline? Do you reward honesty by imposing less discipline for those who come forward or readily admit to wrongdoing?

     C. Use of Polygraph - Are they really inadmissible in all proceedings? What type of predicate or factual foundation is needed? Are the results conclusive? What if the chain of command makes findings of fact that contradict the examiner's opinion?

     D. Terminations Overturned by Appointed Boards – What should you do when an officer who is terminated for dishonesty appeals to a review board or higher authority and the termination is overturned? Can your finding of untruthfulness still be used to impeach the officer in court?

II. Law

A. Pre-employment

     It is amazing how many officers are terminated, or quit pending a termination, and are hired by another agency within driving distance that fails to perform a simple background check by reviewing all personnel files or internal affairs files with a signed waiver. Many will call a "supervisor" whose name was provided by the applicant, without calling the former employer to confirm who the actual supervisor was.

     One reason some have given for such a deficient background investigation is that it is hard enough to recruit and retain qualified police officers to begin with, and it is even harder for a small town or low paying police department to be so demanding if there is an applicant with prior police experience and training willing to come work there.

     However, there is no refuge in the law when prior misconduct could have reasonably been discovered. Negligent hiring is a method of proving a pattern and practice civil rights violation against a municipality, and the benefit of getting a fresh body is outweighed by the risk that officer presents to an agency.

     Departments should consider adopting a rule that permits termination after learning about information not previously disclosed or discovered before hiring.

B. Internal Investigations

     1. Lachance v. Erickson, 522 U.S. 262 (1998)(lying during an internal investigation justifies termination)

     It seems laughable that the United States Supreme Court would even have to make this decision, except that a lower court (U.S. Court of Appeals for the D.C. Circuit) had decided that an employee had a Fifth Amendment right to lie during an internal investigation. Thankfully, the U.S. Supreme Court reversed, "Our legal system provides methods for challenging the Government's right to ask questions—lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood."

     2. Vasconcelos v. Meese, 907 F.2d 111 (9th Cir. 1990)(Deputy U.S. Marshal fired for lying during internal investigation into her allegations of sex harrassment).

     3. Polygraph and CVSA

     a) Criminal v. Civil proceedings

     b) Opinion evidence of the examiner, not a "lie detector" machine

     c) There should be some pre-existing factual discrepancy, sufficient to support a finding of untruthfulness without solely relying on the polygraph or CVSA.

     A. The Ticking Timebomb – Impeachment in Court and the Management Responsibility

     The duty to disclose exculpatory information includes the duty to disclose information which is relevant to the credibility of witnesses, including law enforcement witnesses. Police officers are in an occupation unlike any other because they testify under oath as a job requirement, and they testify frequently. Thus, once character and credibility has been destroyed, the officer is tainted forever. If the number of impeachable officers multiply, or are concentrated in high profile investigative positions, then a department could be literally crippled from investigating crime. The decision to retain rather than terminate an impeachable officer will eventually reflect upon the management decision to retain, rather than terminate the untruthful officer. All eyes will rotate to the chief executive, and not to the officer. This is a problem that should not sneak up on anyone, it can be anticipated and is susceptible to proactive management initiative.

     1. Brady v. Maryland, 373 U.S. 83 (1963) Suppression by the prosecution of specifically requested evidence favorable to the defendant violates due process where the evidence is material either to guilt or innocence of the defendant, or sentencing factors, regardless of the good faith of the prosecutor faith (e.g. it was unaware that there was exculpatory information available).

     2. Giglio v. U.S., 405 U.S. 150 (1972)

     When the reliability of a given witness may be determinative of guilt or innocence, non-disclosure of evidence affecting the credibility of that witness violates due process. This case did not involve a law enforcement witness, the defendant learned after trial that the main witness in a forgery case had been given a promise not to prosecute in exchange for his testimony. In this case, the Court extended the Brady rule to evidence that could be used to impeach a witness.

     3. U.S. v. Agurs, 427 U.S. 97 (1976)

     The duty to disclose exculpatory information exists even if the defense does not make a specific request for it. Here, the defendant learned after trial that the victim in his murder case had a criminal record that would have supported the self-defense claim, but he made no specific request for that information before trial.

     1. U.S. v. Bagley, 473 U.S. 667 (1985)

     There is no legal distinction between "exculpatory" and "impeachment" evidence for Brady purposes. In this case, the defense made a specific request of any witnesses who were given non-prosecution agreements before trial. The prosecutor stated that none were offered, without knowing that another prosecutor from the same office had offered such agreements to some of the government witnesses. Evidence is material if there is a "reasonable probability" that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is one sufficient to undermine the confidence in the result.

     2. Pennsylvania v. Ritchie, 480 U.S. 39 (1987)

     Trial court may review confidential information in camera to determine if it contains information that probably would change the outcome of the trial, but the defense counsel was not entitled to personally examine the file. In this case, the defendant was charged with sexual offenses against his daughter and sought to examine confidential and privileged records from the state protective agency about his daughter. The in camera inspection is intended to balance the competing concerns of privacy in government investigative files and disclosure of exculpatory evidence to the defendant. These competing interests are similar to an agency's personnel files which are protected by state statute, but which may contain impeachment evidence of a government witness.

     3. Kyles v. Whitley, 514 U.S. 419 (1995)

     "[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Legally, the duty is on the prosecutor to learn of impeachment as well as exculpatory evidence, whether the police provide it or not. Ethically, it seems like there should be a duty on the police to provide impeachment evidence to the prosecutor. Politically, if a murder case is reversed because the prosecutor was unaware that the lead detective in the case had been previously found untruthful, I am pretty certain where the fingers will point next.

D. Civil Implications

     1. Jean v. Collins (155 F.3d 701, 718 fn. 3, 4th Cir. 1998)(en banc) This case has a tortured procedural history: a habeas petition was granted in 1991 by the Fourth Circuit, overturning a 1982 state rape conviction because the state failed to turn over evidence of witnesses who were hypnotized. Two Fourth Circuit opinions denied the §1983 claims against the officers on the basis of qualified immunity in 1997 and 1998 (en banc), ruling that there was no clearly established duty for police to turn over exculpatory evidence to a prosecutor in 1982. After remand by the U.S. Supreme Court in 1999 on the issue of qualified immunity in light of Wilson v. Layne, an equally divided en banc Fourth Circuit affirmed on a vote of six to six, with three separate opinions, 221 F.3d 656 (4th Cir. 2000). Needless to say, the only thing that emerges with clarity is the following troubling footnote from the 1998 opinion:

     "[T]his circuit has recognized that the failure of police officers to turn over evidence to a prosecutor may violate a criminal defendant's constitutional right to receive such evidence....[T]he decisions in Taylor, Carter, and Goodwin now provide notice to police officers that they can be subject to monetary damages under Section 1983 for failure to disclose exculpatory evidence to the prosecutor."

     2. John Roe v. San Francisco, 109 F.3d 578 (9th Cir. 1997)(officer sued DA for not prosecuting his cases because the prosecutor believed the officer lacked credibility, prosecutor has absolute immunity).

E. Administrative Implications

     1. U.S. Department of Justice official policy on disclosure

     "Each investigative agency employee is obligated to inform prosecutors with whom they work of potential impeachment information as early as possible prior to providing a sworn statement or testimony in any criminal investigation or case [including] (a) any finding of misconduct that reflects upon the truthfulness or possible bias of the employee, including a finding of lack of candor during an administrative inquiry; (b) any past or pending criminal charge brought against the employee; and (c) any credible allegation of misconduct that reflects upon the truthfulness or possible bias of the employee that is the subject of a pending investigation."

     2. Information that must be disclosed

     When an officer will be a witness in a case, potential "Brady material" includes information reflecting on the officer's:

     Truthfulness Bias (against groups or individuals) Crimes (including bad conduct reflecting on credibility; not including infractions or motor vehicle offenses unless the case involves similar conduct)

      1. Potential Brady material may include information from personnel files, internal investigation files, or training files. Such information will not automatically be disclosed to the defense. The prosecutor or the judge will determine its relevance.

II. Ethics

A. Decertification Study

     In 1996, the directors of the Peace Officer Standards and Training Commissions and Councils collected data regarding officers who had been decertified between 1990 and 1995. They forwarded the raw statistics to the National Institute of Ethics for analysis. The summary report can be found at www.ethicsinstitute.com or in Trautman, The Cutting Edge of Police Integrity, 2000. Some of the more interesting findings of officers who were decertified:

B. Citizen Complaint Studies

     An even more interesting picture emerges when the decertification findings are compared to research on external citizen complaints, as opposed to internally generated decertification proceedings. See Johnson, "Citizen Complaints: What the Police Should Know," Police Chief Magazine, December 1998. In summary, officers most likely to receive a citizen complaint are:

     (1) under 30 years old;

     (2) less than five years of experience; and

     (3) possess a high school education.

     In contrast, the decertified officers tended to be older and have more police experience, yet still have the lowest formal education level. This may indicate that externally generated complaints may be the result of inexperience, legal ignorance, or underdeveloped communications skills; while decertified officers demonstrate problems with integrity that may not develop until later in their careers.

C. Training

     1. It becomes apparent that entry level ethics training may be important, but new trainees should not be the only or primary focus of ethics training. We should be targeting the 4-7 year officer with intensive in-service training designed to help them reflect on the temptations they have now become aware of, and reinforce the ethical anchors that kept them from giving in to the temptation so far.

     2. Reinforcement becomes part of the organizational culture when ethical scenarios are conducted in every class, not just a special one-time ethics class. Ethics and integrity should be considered when evaluating every internal investigation and disciplinary decision, rewarding those who demonstrate integrity.

III. Recommendations

A. Legal

     1. Impeachment Evidence Procedures

     It is in your best interest to coordinate with your local prosecutor to see how to best comply with the need to disclose exculpatory and impeachment evidence in your possession. You may not like the answer you get or the solution that is provided unless you initiate the proposed procedure.

     If you get a subpoena from a defense lawyer for a personnel file, notify the prosecutor and affected officer immediately. You may wish to do a motion to quash through your own agency attorney, and request an in camera inspection by the trial judge.

     2. State Certification

     One way to overcome the frustration of terminating an officer, only to have the termination reversed by a politically appointed board or unsupportive higher authority is to submit the relevant information to the Training and Standards Commission for decertification. G.S. 160-168(c)(5) permits disclosure of relevant information from a personnel file for this purpose. Decertification is a separate and independent basis for termination, and no locally appointed board can overrule a state agency's administrative licensing decision.

B. Ethics

     1. Training

     a) Intensely focus on the 4 – 7 year veterans;

     b) Ethical scenarios should be incorporated throughout all training, in-service and basic;

     c) Encourage higher education.

     2. Approach to Routine Internal Investigations and Complaints

     How do we approach an officer when a complaint comes in? It is possible to make the approach in an environment where the officer immediately reacts because of the public setting or the leading question without thinking. Once committed to the lie, they may feel more comfortable riding the downward spiral instead of admitting they lied. When officers are truthful about misconduct, you can give positive reinforcement by citing that as a mitigating factor.

     3. Internal Policy Guidance

     Make it clear that lying is a termination offense the first time it happens. Specifically state in the rule than any untruthfulness may result in discipline up to and including termination for the first occurrence.

     4. Public Education

     Officers can receive great public sympathy when they are being terminated, because even the most evil officer performs a heroic duty. Politically appointed review boards tend to swing to one extreme or the other, with little balance or relevant experience in both police work or police management. It may be helpful to explain the legal basis for the law enforcement priority on truthfulness. It may be helpful to publicly reinforce the need for ethical behavior and the steps your agency takes to ensure integrity. Be careful not to publicly educate the defense bar on the law or your own personnel investigations.

IV. Additional

     1. Phillips, Josh, "A New Look at Telling the Truth," Integrity Talk, Spring 2000 (International Association of Ethics Trainers).