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Vida B. Johnson, Bias in Blue: Instructing Jurors to Consider the Testimony of Police Officer Witnesses with Caution, 44 Pepperdine Law Review 245 -303 (2017) (545 Footnotes Omitted (FULL ARTICLE)

VidaJohnsonIn jurisdictions all across America, jurors in criminal trials are instructed by the judge that they are to treat the testimony of a police officer just like the testimony of any other witness. The instructions were designed, at least in part, to correct for potential juror bias in favor of police officer testimony, but instead serve to preclude fair consideration of police officers' inherent motives to fabricate or shade testimony to obtain a conviction. Fact-finders are told that they should not give police officers' testimony any greater or lesser weight than that of other witnesses they will hear from at trial. They are to accept that police are no more or less believable than anyone else.

Jury instructions regarding police officer testimony stand in contrast to the instructions given to jurors where a witness with a legally recognized interest in the outcome of the case has testified. In cases where witnesses have received financial assistance or plea deals for their testimony, a special instruction is given. For example, when a witness with a cooperation agreement testifies, the trial court will tell the jury that while the witness has the same obligation to tell the truth as other witnesses, the jury can consider whether the witness “has an interest different from other types of witnesses” and that her testimony should “be considered with caution.” In many jurisdictions, when a criminal defendant testifies, the jurors are told, despite the presumption of innocence, that he has a “vital” interest in the outcome of the case and that jurors can give his testimony less weight. Courts have routinely and almost universally refused to allow similar instructions for police officer testimony. Instructions highlighting that officers may be biased or have an interest in the outcome of the case are almost never given in a criminal trial. To the contrary, jurors are effectively told they must not consider the police officer's status as a police officer when considering the police officer's testimony.

In many cases, however, police officers are not disinterested parties. In undercover buy-bust stings, search warrant cases, and cases of assault on police officers, police officers are not only usually the sole witnesses to the alleged offense, but they are also invested in the outcome of the case. These cases would not exist without the police officer's involvement. The crimes--sometimes police-manufactured--are often the result of departmental interests. For example, police go out and act in an undercover capacity and claim to buy drugs or purchase sex because of the agendas that they themselves or their office have set. Later, they may have to justify decisions made about the selective use of limited departmental resources with arrests and convictions. An officer also may have to justify the decision to arrest a particular person and the use of force or intrusion into a person's privacy.

Sting operations are often tied to police department budgets, and individual departments often need to keep their arrest numbers up to justify their budgets. Thus, officers go out to make arrests to meet these numbers. Millions of dollars recovered in certain types of cases can be seized by the police department and used for the department that recovered the funds. Individual officers' jobs may depend on the existence of a department or operation. In addition to budgetary interests and crime creation, there are professional rewards for officers who make not only arrests, but arrests that result in convictions. These issues are just some of the pressures that drive the operations of a police department.

In addition to conscious biases that police may hold because of pressures to make arrests--such as the money at stake in the criminal justice system or the professional interests involved in a specific operation--police may hold other biases as well. Unconscious racial or socio-economic biases may impact an officer's views towards defendants, and those biases may have motivated some to become police officers in the first place. Institutional or group pressures also impact law enforcement officers. Any of these biases--conscious or not--can impact the veracity of an officer's testimony.

What is at stake in the individual criminal trial is not trivial. The defendant faces the loss of his freedom and livelihood, and a host of other collateral consequences, should he receive a conviction. With mandatory minimum sentences, three-strikes laws, and the death penalty, the risks are obviously significant. Indeed, police and prosecutor misconduct is the second leading cause of exonerations in the United States.

The standing of the particular department, reputation of specific officers, public relations with the community, money seized in civil forfeiture, and officers' careers sometimes depend on the officer's credibility at trial.

Some police officers have acted in response to institutional pressures and personal motivations. As a result, police officers are guilty of all manner of misconduct--planting evidence, creating false charges, perjury, hiding evidence of innocence, and police brutality. Events in Chicago, Baltimore, Cincinnati, Ferguson, Texas, Staten Island, South Carolina, and elsewhere have shown that police officers are not always truthful. For example, video footage in the police shooting of an unarmed man in South Carolina was in direct contrast to the police report written by the officer who shot the man. In Cincinnati, police officers were heard on tape agreeing to facts that did not take place to support an officer who had just shot and killed an unarmed civilian. In Chicago, there was evidence that police officers tried to suppress a video of officers shooting an unarmed teen, though the police officers disputed it. Issues of police brutality, planting evidence, and dishonesty are becoming part of a national discussion, not just relegated to complaints in poor communities and amongst defense attorneys. While there are certainly honest and well-meaning police officers in every police department, even those officers often stay silent about the conduct of others and promote a “blue wall of silence.”

Recent events have demonstrated that police departments and police unions not only take a unified stand on certain issues, but also wield a tremendous amount of power in the criminal justice system when one of their own is accused of misconduct. The lack of indictments for the officer involved in the killing of a teenager in Ferguson, Missouri and the officers involved in the choking death of a man in Staten Island, which was captured on videotape, are demonstrations of that power. Prosecutors depend on the police to bring cases and therefore have a powerful disincentive to aggressively prosecute police officers.

The Ferguson and Staten Island cases also reveal another way in which jury instructions that treat police officers as “any other witness” blink reality. Police officers and prosecutors work hand-in-hand. The police are the investigators who build the case for the prosecutors and help the prosecutors bring the case to trial. When a prosecutor is happy with a police officer's work on a particular case, that officer's career can benefit in both formal and informal ways. Prosecutors routinely award police with commendations and other honors, and they can also, more casually, offer praise of a police officer's work to his or her superiors. When a police officer does something that disappoints, frustrates, or angers a prosecutor--something that makes obtaining a conviction more difficult for a prosecutor--then the prosecutor's negative feelings are also likely to be communicated to the officer's superiors.

Despite the strong interests of law enforcement, the law has treated law enforcement as impartial when in reality, officers are often what one legal scholar has called “biased advocates.” This Article explores whether the current criminal jury instructions and current voir dire practices regarding police officer credibility are fair in all contexts. This piece questions whether police officer credibility instructions interfere with the ability of a defendant to get a fair trial and are thus at odds with the realities of the criminal justice system. This Article further examines whether in certain cases, especially those where police officer credibility is the central issue, an alternative instruction might be more appropriate. The Article will begin with the discussion of the witness credibility instructions and voir dire on the topic.

Part II is an exploration of police officer bias and interest.

Part III considers police credibility realities.

Part IV explores the motivations of some officers to behave outside the law.

Part V discusses the impact of police corruption on society. The Article concludes with suggestions for jury instructions regarding police officers that allow jurors to consider reality.

Visiting Professor of Law, Georgetown University Law Center, Criminal Defense and Prisoner Advocacy Clinic and Criminal Justice Clinic.