ARTICLES

THE "~LUE WALL OF SILENCE" AS EVIDENCE OF BIAS AND

MOTIVE TO LIE: A NEW APPROACH TO POLICE PERJURY .

Gabriel J. Chin*
Scott C. Wells**

Ah, the cops are far more complex than. criminals. For they contain explosive con-
tradictions within themselves. Supposed to be law-enforcers, they tend to conceive
of themselves as the law. They are more responsible than the average man, they
are more infantile. They are ·attached umbilically to the concept of honesty, they
are profoundly corrupt. They possess more physical courage than the average man,
they are unconscionable bullies; they serve the truth, they are psychopathic liars
(no cop's testimony is ever to be trusted without corroboration); their work is au-
thoritarian, ·they are cynical; and fmally, if something in their heart is deeply ideal-
. istic, they are also bloated with greed. There is no human creation so contradictory,
so finally enigmatic, as · the character of the average cop. 1

I. INTRODUCTION

From the perjury conviction of former Los· Angeles Police Detective

* Assistant Professor, Western New England College School of Law (until Spring 1998); Asso-
ciate Professor, University of Cincinnati College of Law (as of Fall 1998). B.A., Wesleyan Univer-
sity; J.D., Michigan Law School; LL.M., Yale Law School. E-mail: [email protected].
** Managing Editor, Western New England Law Review. B.S., University of Connecticut; J.D.,
Western New England College School of Law. E-mail: [email protected]. The views ex-
pressed in this article are those of the authors alone, and are not necessarily attributable to any past,
present, or future clients or employers. The authors are grateful to John Q. Barrett, Michael Dinner-
stein, Anne Goldstein, Scott Howe, Chris Iijima, Davan Maharaj, Barry Stem and Valorie Vojdik for
their comments. ·
1. Norman Mailer, The Great American Mystery: A New Dissent on the Methods and Findings
of the Warren Commission, BooK WEEK, Aug. 28, 1966, at 1, 12.

233

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234 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

Mark Fuhrman,2 to revelations that FBI Crime Laboratory officers tai-

lored their testimony in criminal cases, 3 several high-profile scandals
have underscored the problem of police perjury in criminal prosecutions. 4
In 1994, the Mollen Commission,5 appointed to investigate police mis-
conduct in New York, reported that police "falsification"-which in-
cludes "testimonial perjury, . . . documentary perjury, . . . and falsifica-
tion of police records "-!s one of the most common forms of police
corruption facing the nation's criminal justice system.6 In fact, the Mollen
Commission indicated that in New York, "the practice of police falsifica-
tion . . . is so common in certain precincts that it has spawned its own
word: 'testilying.' " 7 The problem has been identified in many parts of

2. See, e.g., Editorial; Fuhrman's Perjury Revisited, S.F. CHRON., Oct 4, 1996, at A26; Jim
Newton & Stephanie Simon, Both Sides Gain Advantages by Cutting a Deal, L.A. TIMEs, Oct. 3,
1996, at Al.
3. See, e.g., Gary Fields, Inspector Defends FBI Crime Lab, USA TODAY, May 14, 1997, at
6A (reporting allegations of careless work and perjured testimony by FBI lab employees); Richard
A. Serrano, Misconduct Allegations Arise in FBI Lab Probe Inquiry, L.A. TIMEs, Jan. 30, 1997, at
A1 (reporting that FBI lab officials said that they were pressured by agents to fabricate scientific
findings to support criminal prosecutions). See .generally U.S. DEP'T OF JusTICE, OFFICE OF TilE IN-
SPECTOR GENERAL, THE FBI LABORATORY: AN INvEsTIGATION INTO LABORATORY PRACTICES AND AL.
LBGEI)MlSCONDUCT IN EXPLOSIVES-RELATED AND OTHER CASES (Apr. 1997) (comprehensive report is-
sued by the Office of the Inspector General pursuant to 18-month investigation of alleged
wrongdoing and improper practices of the FBl Crime Lab).
4. Examples of such scandals include: officers of the New York Police Department's 30th Pre-
cinct who engaged in illegal drug activity, perjury, and frame-ups of innocent citizens, see, e.g.,
David Kocieniewski, Perjury Divide~ Special Report, N.Y. TIMEs, Jan. 5, 1997, § 1, at A1; po-
lice investigators in Troops C and F in upstate New York who were convicted and imprisoned for
fabrication of fmgerprint evidence and perjury, which tainted at least 36 cases from 1983 to 1992,
see, e.g., Former Investigator Gets Year in Jail for Tampering, PosT-STANDARD (Syracuse), May 20,
1995, at A7; Jolm O'Brien & Todd Lighty, Pointing the Finger of Blame, SYRACuSE liBRALD J., Feb.
4, 1997, at A7; State Police Lieutenant Gets Prison for Lying, BUFFALO NEws, Sept. 9, 1993, at
A17; former assistant prosecutors and sheriff's deputies of DuPage County, lllinois, accused of con-
spiring to wrongfully convict two Hispanic men of murder-the two men spent close to 10 years on
death row, see, e.g., Don Terry, Ex-Prosecutors and Deputies in Death Row Case are Charged with
Framing Defendant, N.Y. TIMEs, Dec. 13, 1996, at A18; and officers in Philadelphia who beat and
robbed residents of a poor, African-American section of the city, and then fabricated evidence and
lied against the residents in court, .resulting in at least 50 bogus drug convictions, which were subse-
quently overturned, see, e.g., Det. Vermin: Even Worse Than His Racism is the Damage that Cops
Like Fuhrman Do to the System, NEWSDAY, Aug. 31, 1995, at A38; David Shipler, Living Under
Suspicion, N.Y. TIMEs, Feb. 7, 1997, at A2.
5. See REPORT OF TilE COMMISSION TO INvEsTIGATE ALLEGATIONS OF POUCB CoRRUPriON AND
THE ANn-CORRUPriON PROCBDURBS OF TilE POUCE DEPARTMENT (July 7, 1994) [hereinafter Moi.J.BN
COMMISSION] (Milton Mollen, Chair), reprinted in 6 NEW YoRK CITY POUCB CORRUPriON INVESTIGA-
noN CoMMISSIONS, 1894-1994 (Gabriel J. Chin ed., 1997) [hereinafter CHIN].
6. MOLLBN COMMISSION, supra note 5, at 36.
7. /d. The word appears in at least some versions of the report itself as "testifying," with an F
rather than an L. However, it is clear that the report contains a typographical error, and was meant

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1998] BLUE WALL OF SILENCE 235

the country, particularly New York,8 Los Angeles, 9 Chicago, 10 and other
large cities. 11 While the precise scope and pervasiveness of police perjury
on a national level has been the subject of debate, 12 there is "a wide-

to be "testilying." See, e.g., Morgan Cloud, Judges, "Testilying," and the Constitution, 69 S. CAL. L.
REv. 1341, 1352 (1996) (quoting report as using word "testilying").
8. See, e.g., David A. Harris, Frisking Every Suspect: The Withering ofTerry, 28 U.C. DAVIS
L. REv. 1, 35-36 (1994) (noting the Mollen Commission's fmdings that police perjury in New York
is common, widespread, and accepted); Fred Kaplan, NYC Police Accused of Pattern of Brutality,
BosTON GLOBE, June 27, 1996, at 8 (noting report by Amnesty International which accused New
York Police Department of abuses perpetuated by a code of silence); Kocieniewski, supra note 4, ·§
1, at· A1 (according to one New York police officer, "lying under oath was standard procedure");
Selwyn Raab, The Unwritten Code that Stops Police from Speaking, N.Y. TIMEs, June 16, 1985, § 4,
at 6 (recognizing New York's police code of silence, and reporting testimony before a State Senate
committee which indicated that the code of silence is •• •an old tradition' in all police forces").
9. See, e.g., Maura Dolan, Jury System is Held in Low Regard by Most, L.A. TIMEs, Sept. 27,
1994, at A1 (40% of Los Angeles county residents polled believe that "police officers commonly lie
on the witness stand"); Jim Newton, King Case Prosecutors Gamble on Eyewitness Testimony, L.A
TIMEs, Mar. 7, 1993, at 1 (asserting that discrepancies in police recollection of events of King beat-
ing are evidence of a police code of silence used to thwart investigation of the beating).
10. See, e.g., Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclu-
sionary Rule in the Chicago Criminal Courts, 63 U. CoLO. L. REv. 75, 96 (1992) (police perjury in
Chicago "unquestionably" occurs); Myron W. Orfield, Jr., The Exclusionary Rule and Deterrence:
An Empirical Study of Chicago Narcotics Officers, 54 U. CHI. L. REv. 1016, 1018 (1987) [hereinafter
Orfield, The Exclusionary Rule and Deterrence] (noting that police perjury in Chicago "clearly
exists").
11. See Cloud, supra note 7, at 1346-47 (discussing news reports addressing police falsifica-
tion in Philadelphia, Los Angelei, Atlanta, New Orleans, Detroit, and Minneapolis, and stating that
police misconduct, including perjury, "is a national problem and has been for decades"); Joseph D.
McNamara, Has the Drug War Created an Officer Liars' Club?, L.A. TIMEs, Feb. 11, 1996, at M1
(noting recent perjury scandals have surfaced in police departments in Los Angeles, Boston, New
Orleans, San Francisco, Denver, New York, and other large cities); A1 Neuharth, OJ., Jewell Lesson:
Testifiers, Testiliars?, USA TODAY, Dec.13, 1996, at 15A ("[I]n some major cities, perjury by police
is becoming a shtick."); see also Cloud, supra note 7, at 1347 (noting allegations of perjury by
members of Federal Bureau of Investigation crime laboratory to secure criminal convictions).
12. See Donald A. Dripps, Police, Plus Perjury, Equals Polygraphy, 86 J. CRIM. L & Clu:MI-
NOLooY 693, 698 (1996) (asserting that the incidence of police perjury is common); Harris, supra
note 8, at 36 (noting the pervasive practice of police perjury in New York is probably no different
elsewhere around the nation); Martin A. Schwartz, Admissibility of Investigatory Reports in § 1983
Civil Rights Actions---A User's Manual, 19 MARQ. L. REv. 453, 454 (1996) ("From coast to coast,
commissions and internal affairs units are being employed to investigate allegations of law enforce-
ment misconduct and corruption!'); Comment, Police Perjury in Narcotics "Dropsy" Cases: A New
Credibility Gap, 60 Goo. U. 507, 507 (1971) (recognizing a "growing problem of police perjury in
cases involving narcotics arrests,.); Alan M. Dershowitz, Controlling the Cops; Accomplices to Per-
jury, N.Y. TIMES, May 2, 1994, at A17 (suggesting that police perjury in the criminal justice system
is pervasive); Alan Dershowitz, Police Perjury Is Rampant, ROCHESTER TIMEs UNION, Mar. 27, 1995,
at A6 [hereinafter Dershowitz, Police Perjury Is Rampant] (purporting that all objective studies on
the topic of police perjury indicate that "the problem of pervasive police perjury is rampant in every
major city in the country"); Larry Reibstein, Up Against the Wall, NEWSWEEK, Sept. 4, 1995, at 24
(indicating that, according to defense attorneys, police perjury commonly occurs); Darlene Ricker,
Behind the Silence: Does Society Condone Police Brutality in Exchange for Getting Criminals Off

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236 UNIVERSITY OF PITTSBURGH LAW .REVIEW [Vol. 59:233

spread belief that testilying is a frequent occurrence'' throughout the na-

tion.13 Though largely anecdotal, the evidence is compelling that, as New

the Streets?, A.B.A. J., July 1991, at 46 (quoting a deputy district attorney in the Los Angeles
County D.A.'s office as stating, " 'Sure, cops have gotten up there on the stand and lied or made
misstatements' "). But see CRIMINAL JusTICE SEcriON, AMERicAN BAR Ass'N, CRIMINAL JusTICE IN
CRISIS: A REPORT TO THE AMERICAN PEoPLE AND THE AMERICAN BAR ON CRIMINAL JUSTICE IN THE
UNITED STATFS: SOME MYTIIS, SOME REALITIES, AND SoME QUESTIONS FOR THE FUTURE 21-22 (1988)
[hereinafter CRIMINAL JuSTICE IN CRISIS] (concluding that the problem of testilying is "isolated" and
observing that "no one has established the pervasiveness of the practice(]"); Edward G. Mascolo,
Impeaching the Credibility of Affidavits for Search Warrants: Piercing the Presumption of Validity,
44 CoNN. BJ. 9, 10 n.8, 29 n.97 (1970) (asserting that few cases exist on police perjury because of
the infrequent occurrence of perjury); Kevin R. Reitz, Testilying as a Problem of Crime Control: A
Reply to Professor Slobogin, 67 U. CoLO. L: REv. 1061, 1062 (1996) (suggesting that one should
view claims attesting to the certainty of the incidence of testilying suspiciously, because "[w]e know
. . . nothing about the testilying 'rate,' its variations across and within police departments, its
changes over time, or its etiology"); Reibstein, supra, at 25 (noting that although LAPD officers ad-
mit that perjury occurs, they deny widespread abuse).
13. Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. CoLO. L.
REv. 1037, 1041 (1996); see also United States ex rei. Petillo v. New Jersey, 400 F. Supp. 1152,
1179 (D.N.J. 1975) (noting that "[b]oth commentators and courts have recognized the incidence of
police perjury in criminal proceedings of all types"), vacated and remanded sub nom. Albanese v.
Yeager, 541 F.2d 275 (3d Cir. 1976); Alan M. Dershowitz, Police Perjury? "I'm Shocked!," in THE
ABusE ExcusE 233 (1994) (suggesting that "recent disclosures about rampant police perjury cannot
possibly come as any surprise" to those who have practiced criminal law in state or federal courts);
ALAN M. DERSHOWITL, THE BEST DEFENSE at xxi-xxii (1983) ("Almost all police lie about whether
they violated the Constitution in order to convict guilty defendants."); H. RICHARD Uvn.LER, VIRTUAL
JusTICE 131 (1996) (arguing that "today virtually every cop is accused of perjury by the defense
. . . . [T]he possibility of perjury remains a pervasive factor."); Morgan Cloud, The Dirty Little Se-
cret, 43 EMORY L.J. 1311, 1311-12 (1994) ("Judges, prosecutors, defense lawyers, and repeat offend-
ers all know that police officers lie under oath.''); Cloud, supra note 7, at 1344-45 (purporting that
"[m]ost participants in the criminal justice system know that in some cases some police officers lie
under oath"); Joseph D. Grano, A Dilemina for Defense Counsel: Spinelli-Barris Search Warrants
and the Possibility of Police Perjury, 1971 LAw F. 405, 409 (1971) ("[T]he police often are not ad-
verse to committing perjury to save a case."); Orfield, The Exclusionary Rule and Det~rrence, supra
note 10, at 1051 (Almost all of the officers in author's study admitted that the police commit per-
jury, and "it is possible that the frequency of police lying in court is greater than the police ad-
mit."); Slobogin, supra, at 1042 (asserting that "[f]ew knowledgeable ·persons are willing to say that
police perjury about investigative matters is sporadic or rare"); Deborah Young, Unnecessary Evil:
Police Lying in Interrogations, 28 CoNN. L. REv. 425, 427 (1996) (asserting that "the reported cases
of police lying represent only a fraction of the actual cases in which police lying occurred"); Irving
Younger, Constitutional Protection on Search and Seizure Dead?, 3 TRIAL 41 (1967) (asserting that
police perjury is commonplace); Kocieniewski, supra note 4, § 1, at AI (noting that according to
one New York police officer, "lying under oath was standard procedure"); Lie Detectors Could Curb
Police Perjury, USA TODAY (mag.), Aug. 1, 1996, at 13 ("[M]any experienced trial lawyers have
said they believe police officers frequently lie on the stand.''); McNamara, supra note 11, at Ml
("[H]undreds of thousands of law-enforcement officers commit felony perjury every year testifying
about drug arrests.''); William K. Rashbaum, The Odd Couple,· Style of New Cop Watchdog Doesn't
Match Predecessor, NEWSDAY, Feb. 1, 1995, at A17 (recognizing that most police officers privately
acknowledge that committing perjury is not uncommon); Scott Turow, Simpson Prosecutors Pay for
Their Blunders, N.Y. TIMES, Oct. 4, 1995, at A21 (asserting .that district attorney's decision to place
 1998] BLUE WALL OF Sll..ENCE 237

York's Mollen Commission has recognized, police perjury is a "serious

problem facing the ... criminal justice system." 14 Police perjury may
have. terrible consequences. In individual cases, not only may the guilty
be wrongly acquitted, but the innocent may be wrongly convicted. Over
time, average citizens may lose faith in the police department and in the
law itself.
Part IT of this article identifies and discusses some of the basic cate-
gories of police perjury. Police occasionally commit perjury for malicious
reasons, for example, in order to frame the innocent. A more common
· motivation for police perjury is to evade the exclusionary rule by lying in
a suppression hearing.
Police officers also sometimes lie under oath because of the "blue
wall of silence," an unwritten code in many departments which prohibits
disclosing perjury or other misconduct by fellow officers, or even testify-
ing truthfully if the facts would implicate the conduct of a fellow of-
ficer~ 15 The existence of some form of a police code of silence in many

police officers on the wibless stand at pretrial hearing to tell perjurious story is "routine"); Irving
Younger, The Perjury Routine, THB NATION, May 8, 1967, at 596-97 [hereinafter Younger, The Per-
jury Routine] (asserting that "[e]very lawyer who practices in the criminal courts knows that police
perjury in commonplace"). But see William J. Stuntz, Warrants and Fourth Amendment Remedies,
77 VA. L. REv. 881, 935 & n.142 (1991) (arguing that "[t]here is a good deal of anecdotal discus-
sion by actors in the system who believe perjury occurs with some frequency, but little in the way of
evidence that would indicate how often or with what effects") (footnote omitted).
14. MOlLEN COMMISSION, supra note 5, at 36.
15. See Robin K. Magee, The MY,th of the Good Cop and, the Inadequacy of Fourth Amend-
ment Remedies for Black Men: Contrasting Presumptions of Innocence and Guilt, 23 CAP. U. L REv.
151, 203 (1994); David Rudovsk.y, Police Abuse: Can the Violence Be Contained?, 21 HAR.v. C.R.-
C.L L. REv. 465, 481 n.60 (1992); Michael Cooper, 2d Officer Gives Account of Sex Assault of Hai-
tian, N.Y. TIMBs, Aug. 18, 1997, at B3; John Kifner, Officers Assigned to Haiti Are to Join 70th
Precinct, N.Y. TIMEs, ,Aug. 20, 1997, ~t B3; Carol A. Watson, Complaints Meet a Wall of Silence,
LA. TIMEs, Mar. 10, 1991, at 5 (code of silence perpetuates corruption); All Things Considered: Blue
Wall of Silence (NPR radio broadcast, Aug. 20, 1997), available in 1997 WL 12832487; see also
MOlLEN COMMISSION, supra note 5, at 53; REPoRT OF THE INDEPENDENT COMMISSION ON THB Los AN-
GBLES PoUCB DEPARTMENT 168 (1991) [hereinafter CHRISTOPHER COMMISSION] (Warren Christopher,
Chair). Many different terms may be used to refer to the practice of police refusing to provide infor-
mation about fellow officers' corruption, including: "code of silence:• see, e.g., CHRISTOPHER CoM-
MISSION, supra, at 168; JEROMB H. SKOLNICK & JAMBS J. F'YFE, ABOVE THB LAW 108 (1993); "blue
wall of silence,'• see, e.g., Magee, supra, at 203; "blue curtain,'' see, e.g., Alison L. Patton, Note,
The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 is Ineffective in Dete"ing Police Brutality, 44
HASTINGS LJ. 753, 763 (1993); "code of the 'blue fraternity,'" see, e.g., MOlLEN COMMISSION,
supra note 5, at 58; the "brotherhood of lies,'' see, e.g., Serpico: Pattern of Lies Lingers, LAS
VEGAS REv. J., Oct 3, 1993, at 9A; the "blue code of silence,'' see, e.g., Magee, supra, at 156; and
the "Blue Cocoon,'• see PouCB STRATEGY :No.7: ROOTING Our CORRUPriON; BUILDING 0RoANJZA-
TIONAL INTBGRITY IN THE NEW YoRK POUCB DEPARTMENT 77 (June 14, 1995) [hereinafter PoUCB
STRATEGY No.7] (quoting Police Commissioner William J.. Bratton). This article will commonly use
the terms "code of silence" and "blue wall of silence" interchangeably to refer to such practice.
238 UNIVERSITY OF PITISBURGH LAW REVIEW [Vol. 59:233

police departments across the nation is well documented in court opin-

ions, 16 scholady literature, 17 news reports, 18 and police investigatory com-

16. See Spell v. McDaniel, 824 F;2d 1380, 1392-95 (4th Cir. 1986) (affmning jury verdict im-
posing municipal liability for arrestee's injuries from excessive use of force; evidence of code of si-
lence and force training was sufficient to demonstrate municipal custom and usage); United States v.
Ambrose, 740 F.2d 505, 521 (7th Cir. 1984) (appendix to case, reprinting remarks of Grady, J., of
the United States Disbict Court for the Northern District of lllinois, made at sentencing hearing of
defendant, who stated that "it is a fact . . . that there is a code of silence [in the Chicago Police De-
partment], and that most policemen observe it"); Myatt v. City of Chicago, No. 90-C-03991, 1991
WL 94036, at *7 (N.D. Til. May 23, 1991) (determining that allegations by plaintiff in police brutal-
ity case, including, inter alia, admission of officers of existence of code of silence, were sufficient to
withstand motion to dismiss); McLin v. City of Chicago, 742 F. Supp. 994, 1002 (N.D. Til. 1990)
(holding that allegations by plaintiff of code of silence as policy or custom of city properly stated
claim under 42 U.S.C. § 1983); Brandon v. Allen, 645 F. Supp. 1261, 1266'-67 (W.D. Tenn. 1986)
(finding a code of silence throughout the police department and determining that the city was liable
for the code of silence which permitted abusive police behavior). In a recent line of cases from New
York regarding the police code of silence, police brutality plaintiffs have sought to invoke the Mol-
len Commission report and other evidence of the existence of the pervasive code to demonstrate cus-
tom or policy ·liability on behalf of municipalities. See, e.g., Shaw v. City of New York, No. 95-
CIV.-9325 AJP, 1997 WL 187352, at *5, 7-10 (S.D.N·.Y. Apr. 15, 1997). Similarly, the Mollen Com-
mission report has been invoked in cases involving claims by officers against their departments or
other municipal defendants. The officers cJaim that the defendants violated their First Amendment
right to free speech when the defendants retaliated against the officers in response to officers break-
ing the code of silence. ·The crux of the argument in many of these types of cases is that Frrst
Amendment free speech rights are violated because the established policy precludes the officer from
asserting a right to speak out about police misconduct. See, e.g., White-Ruiz v. City of New York,
No. 93-CIV.-7233 (DLC) (MHD), 1996 WL 603983 (S.D.N.Y. Oct. 22, 1996); Domenech v. City of
New York, 919 F. Supp. 702, 711 (S.D.N.Y.), on reargument, 927 F. Supp. 106 (S.D.N.Y. 1996);
Ariza v. City of New York, No. CV-93-5287, 1996 WL 118535 (E.D.N.Y. Mar. 7, 1996). Many
claimants in other police brutality and police department retaliation cases have at least alleged some
evidence of the existence of a code of silence to help establish liability against a municipality. See,
e.g., Sledd v. Linsday, 102 F.3d 282, 287, 288-89 (7th Cir. 1996) (excessive force claimant alleged
injury as a result of code ,of silence policy of department because officers inflicting injury on claim-
ant knew they would not be subject to scrutiny by superiors); Marshall v. Gates, 44 F.3d 722, 723
(9th Cir. 1995) (alleging code of silence to demonstrate police department retaliation); Mason v.
Stock, 955 F. Supp. 1293, 1313-14 (D. Kan. 1997) (excessive force claimant alleged policy and cus-
tom of department through code of silence); Sharp v. City of Houston, 960 F. Supp. 1164, 1174-76
(S.D. Tex. 1997) (poliC:e officers alleged custom and municipal policy of retaliation for speaking ·out
against department misconduct by providing evidence of code of silence); Williams v. Morris, 956 F.
Supp. 679, 682 (W.D. Va. 1996) (police officer alleged violation of free speech due to his termina-
tion by department in retaliation for breaking code of silence); Alexander v. Village of Glenwood,
No. 95-C-2326, 1996 WL 6545, at *1 (N.D. m. Jan. 8, 1996) (plaintiff alleged that police code of
silence facilitated and encouraged civil rights violations by police); Bradley v. Fisher, 688 A.2d 527,
529 (Md. Ct. Spec. App. 1997) (police officers alleged wrongful discharge due to retaliation for
breaking code of silence); see also Wilson v. Meeks, 52 F.3d 1547, 1556-57 (lOth Cir. 1995) (find-
ing that in a poli~ shooting case, allegations of cover-up resulting from code of silence did not es-
tablish ·constitutional violation for deprivation of the right to access to courts); Davis v. Wayne
County Sheriff, 507 N.W.2d 751 (Mich. Ct. App. 1993) (holding that allegations by plaintiff that
code of silence contributed to injuries she sustained as a result of the shooting rampage by her hus-
band, a police officer, were insufficient to demonstrate policy by which the department was unable
1998] BLUE WALL OF SILENCE 239

to obtain evidence regarding the officer's propensity for violence).

17. See SKOLNICK & FYFB, supra note 15, at 110 (attesting to the existence of a code of si-
lence); David S. Cohen, Official Oppression: A Historical Analysis of Low-Level Police Abuse and a
Modern Attempt at Reform, 28 CoLUM. HUM. RTs. L. REv. 16S, 190-92 (1996) (recognizing the exis-
tence of "the infamous 'blue code of silence, • " and asserting that abuse of police authority cannot
be alleviated by providing for mandatory additional officers on the scene because of the code);
Dripps, supra note 12, at 701 (asserting that police abuse can survive only if it is effectively cov-
ered-up through a police code of silence); Alexa P. Freeman, Unscheduled Departures: The Circum-
vention of Just Sentencing for Police Brutality, 47 HAsTINGS LJ. 677, 725 (1996) (recognizing the
code of silence as one of the obstacles to prosecution of police brutality); Magee, supra note 15, at
156, 203 (discussing the MoDen Commission's fmdings regarding the police code of silence); Robert
M. Myers, Code of Silence: Police Shootings and the Right to Remain Silent, 26 GoLDEN GATE U. ·L.
REv. 497, 520 (1996) (asserting that a police officer's right to remain silent about police shootings
"can only further the unwritten code of silence that is prevalent in many police agencies") (footnote
omitted); Rudovsky, supra note 15, at 481, 486-87 (indicating that the code of silence may frustrate
investigation and ·adjudication of claims of police abuse); Schwartz, supra note 12, at 454 (recogniz-
ing the existence of a code of silence from the fmdings of both the Mollen Commission and the
Christopher Commission); Clifford S. Zimmerman, Toward a New Vision of Informants: A History of
Abuses and Suggestions for Reform, 22 HAsTINGS CaNsT. L.Q. 81, 177 (1994) (asserting that estab-
lishing municipal liability for customary informant misconduct or mishandling is difficult to prove
because the code of silence often eliminates appropriate avenues of proof); Patton, supra note 15, at
763 (recognizing that the "code of silence" or "blue curtain" is a major barrier to plaintiffs' attor-
neys in § 1983 police brutality actions).
18. See Michael Beebe, Indictment Cracks Police Silence, BUFFALO NEWs, June 30, 1996, at
Al (recognizing that indictment chatging police officer with the death of a suspect was "the flrst
public sign that a special grand jury pierced a police 'blue wall of silence'"); Alan Dershowitz, Edi-
torial, Some Cops Go Bad When We Don't Insist They Be Good, ROCKY MoUNTAIN NBWS, OCL 4,
1993, at 34A [hereinafter Dershowitz, Some Cops Go Bad] (pervasive blue wall of silence); Dersho-
witz, Police Perjury Is Rampant, supra note 12, at A6 (describing the blue wall of silence); Kaplan,
supra note 8, at 8 (noting report by Amnesty International which accused New York Police Depart-
ment of abuses perpetuated by a code of silence); Athelia Knight & Benjamin Weiser, D.C. Chief
Praises Officer Who Broke Police Silence Code, WASH. PosT, Dec. 16, 1983, at Bl (citing an inter-
view with D.C. police chief who stated that "the 'code of silence' is an unavoidable fact of life in
his police department, and others"); David Kocieniewski, Rooting Out Rogue Cops, NBWSDAY, Apr.
21, 1994, at AS (reporting recommendations of the Mollen Commission to use measures such as lie-
detector tests to defeat the blue wall of silence); Clifford Krauss, Inquiry on Washington Spree Is
Seen as Test ofPolice Resolve,\N.Y. TIMBS, May 24, 1995, at B1 ("famed blue wall of silence");
Leonard Levitt, Cracks Appear in the Blue Wall of NYPD Silence, NBWSDAY, Apr. 21, 1997, at A22
(noting that 11 of the 30 police officers sentenced in the 30th precinct scandal turned in other of-
ficers; thus asserting that the blue wall of silence has been pierced); Claude Lewis, Fa/lout From the
Brooklyn Torture Case; Police Risk Losing a Critical Ally, Their Community, Tim REcoRD (Bergen
County, NJ.), Sept. 9, 1997, at L13 (asserting that police officers covering up for abusive fellow of-
ficerS "has become somewhat of a tradition all over the country"); Newton, supra note 9, at 1 (as-
serting that discrepancies in police recollection of events of King beating are evidence of a police
code of silence used to thwart investigation of the beating); Richard T. Pienciak, Biner Tale Nears
End, DAD...Y Nsws (New York), Sept. 7, 1997, at 29 (reporting that officer admitted to giving inaccu-
mte testimony in Yonkers police brutality case to support police department's "blue wall of si-
lence"); Maurice Possley & Andrew Martin, 'Code' is Cracking in Austin .Case; Wall of Secrecy
Around Corruption Begins to Crumble, Cm. TRIB., Feb. 3, 1997, at 1 (recognizing dilemma of police
officers charged with robbing drug dealers between maintaining a code of silence and cutting a deal
which would involve implicating former poJice partners); Raab, supra note 8, § 4, at 6 (recognizing
240 UNIVERSITY OF PITISBURGH . LAW REVIEW [Vol. 59:233

mission reports examining the subject. 19 Indeed, the Mollen Commission

recognized a strong police code of silence in New York, 20 as did the
Christopher Commission, appointed by Los Angeles Mayor Tom Bradley
in response to the beating of Rodney King, which found that the code of
silence was "[p]erhaps the greatest single barrier to the effective investi-
gation . and adjudication of complaints" against the Los Angeles Police
'Department. 21 Consistent with the loyalty obligation, in many depart-
ments, an officer who ·breaks the code of silence can expect brutal retali-
ation from his or her companions.22 Part II also suggests that police per-
jury is a serious problem because it leads to inaccurate results; even with
respect to the guilty, police perjury is undesirable because it undermines
the legitimacy of the legal system and respect for law.
Because police perjury constitutes a criminal offense and has unde-
sirable effects on the criminal justice system, it would be logical to as-
sume that prosecutors, courts, and the majority of police officers who are

New .York's police code of silence, and reporting testimony before a State Senate committee which
indicated that the code of silence is " 'an old tradition' in all police forces"); Reibstein, supra note
12, at 24 (indicating that defense attorneys believe that covering-up through a police code of silence
·occurs often); Ricker, supra note 12, at 46 (LAPD officers who beat Rodney King in front of nu-
merous witnesses were confident that others would not 'tell because of code of silence); Serpico: Pat-
tern of Lies Lingers, supra note 15, at 9A (reporting former New York police officer Frank Serpico's
comments that the code of silence is perpetuated in the New York police system); Barry Tarlow, Do-
ing the Fuhrman Shuffle; Too Many Cops Think They Can Enforce the Law by Breaking It, WASR
PoST, Aug. 27, 1995, at C2 (noting that the video tapes of Rodney King beating "describe what
those familiar with our criminal justice system have always known-that police perjury, racism,
manufacturing of evidence and a code of silence to cover it all up, occur far too often"); Watson,
supra note 15, at 5 (asserting that code of silence provides "virtually impenetrable layer of protec-
tion for violence-prone officers"); Sandra Widener, From Brass on Down, Silence Is Order of Day,
NBWSDAY, Sepl 25, 1986, at 5 (recognizing a blue wall of silence in the 77th Precinct in New York
City).
19. See, e.g., MoLLBN COMMISSION, supra note 5, at 53-58 (discussing the pervasiveness of the
code of silence); CHRISTOPHER COMMISSION, supra note 15, at 168 (referring to the Los Angeles Po-
lice Department's "code of silence"). The existence of the code of silence has been recognized in
New York by the Knapp Commission report as well, prepared two decades before the Mollen Com-
mission report, in response to a series of news articles appearing in the New York Times alleging
widespread police corruption and laxity in handling such corruption. See REPORT OP THB CoMMISSION
TO INVBSTIOATB Al.LBGATIONS OF POUCB CORRUPTION AND THB CITY'S ANTI-CORRUPTION PROCBDURBS,
at preface & 60 (Dec. ·26, 1972) [hereinafter KNAPP CoMMISSION] (Whitman Knapp, Chair), reprinted
in 5 CHIN, supra note 5. The Knapp Commission indicated that during its investigation, individuals
experienced in police work informed the Commission that "[t]he tradition of the policeman's code of
silence was so strong . . . that it was futile to expect testimony [regarding corrupt activities] from
any police officer." KNAPP CoMMISSION, supra, at 47.
20. See MOLLBN COMMISSION, supra note 5, at 53.
21. CHRisTOPHER COMMISSION, supra note 15, at 168.
22. See infra part m.A (discussing the consequences officers may face by breaking the code
of silence).
1998] BLUE WALL OF SILENCE 241

honest would be eager to deter it, detect it when it happens, and punish
it severely whenever it is discovered. However, for a variety of reasons,
elimination of police perjury has been difficult. Part m discusses the rea-
sons that the criminal justice system has, to date, failed to control police
perjury.
Neither prosecutors nor courts· appear to have made elimination of
police perjury a top priority. Perhaps the most important reason for this is
the blue wall of silence, which, in addition to being a cause of perjury, is
also a significant impediment to its discovery in individual cases and to
its suppression in general. Officers who violate the blue wall of silence
can be subjected to severe, even life-threatening retaliation; as a conse-
quence, even honest officers have a strong disincentive to violate the
blue wall of' silence by testifying truthfully or disclosing that another of-
ficer has testified falsely. As a result of the threat of retaliation, ex-
plained detective Frank Serpico while testifying before the Knapp Com-
mission, "the honest officer fears the dishonest officer and not the other
way around. " 23
The pervasiveness and force of the blue wall of silence in New York
City was underscored by a shocking incident involving the .torture and
brutalization of Abner Louima, a Haitian immigrant, by o~ficers of
Brooklyn, New York's 70th Precinct.24 The incident tipped off a torrent

23. JAMES LARDNER. CRUSADBR: THE HELL-RAISING POUCB CARBBR OF DBTBCTIVB DAVID DURK
212 (1996).
24. In August of 1997, Abner Louima was arrested by New York police officer Justin Volpe
outside of a nightclub on Flatbush Avenue, in Brooklyn. See John Kifner, Nurse Says Some Hospital
Supervisors Tried to Cover Up Facts in Police Beating Case, N.Y. TIMBS, Aug. 26, I997, at B3
[hereinafter Kifner, Nurse Says Some Hospital Supervisors Tried to Cover Up Facts]. On the way to
the station house, four officers allegedly beat Mr. Louima and a second Haitian immigrant. See id.;
see also Kifner, supra note I5, at B3 (indicating that prosecutors are looking into alleged beating of
second Haitian immigrant). Upon arrival at the 70th Precinct station, Officer Volpe, with the aid of
two other officers, allegedly took Mr. Louima into the bathroom and forced a wooden stick into his
rectum and then into his mouth, resulting in a tom rectum and a lacerated bladder, broken teeth, see
Dan Barry, 2d Police Officer Charged in Attack on Arrested Man, N.Y. TIMBS, Aug. 16, I997, § I,
at 1 [hereinafter Barry, 2d Police Officer Charged in Anack on A"ested Man]; Dan Barry, Charges
of Brutality; The Overview, N.Y. TIMBS, Aug. I5, 1997, at AI [hereinafter Barry, Charges of Brutal-
ity]; Kifner, Nurse Says Some Hospital Supervisors Tried to Cover Up Facts, supra, at B3, and a
broken jaw, see Merrill Goozner, NYC Cut in Crime Has Brutish Side, CHI. TRia., Aug. 16, 1997, at
1. Mr. Louima was left in a precinct holding cell for more than 90 minutes before Emergency Medi-
cal Service arrived in response to a "low priority call" from the precinct involving "lacerations."
Barry, Charges of Brutality, supra, at AI; Kifner, Nurse Says Some Hospital Supervisors Tried to
Cover Up Facts, supra, at B3. After a 90-minute wait for a police escort, the ambulance left for the
hospital. See Barry,· Charges of Brutality, supra, at A1; Kifner, Nurse Says Some Hospital Supervi-
sors Tried to Cover Up Facts, supra, at B3. Upon arrival at the hospital, officers told the medical
staff that Mr. Louima had been injured in a homosexual act at a gay bar. See John Kifner, Investiga-
242 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

of media commentary about the code of silence in New York. 25 Of the

tors Looking at New Allegations in Brutality Case, N.Y. TIMES, Aug. 21, 1997, at Bl [hereinafter
Kifner, Investigators Looking at New Allegations]; DeWayne Wickham, Another Voice: After Haitian
Immigrant Assault, N.Y. Police Housecleaning Needed, GANNETI NEws SERV., Aug. 21, 1997, availa-
ble in 1997 WL 8835004.
In response to these allegations, Police Commissioner Howard Satir "swept the precinct clean"
by reassigning two supervisors, suspending a desk sergeant, and placing at least 10 other officers on
desk duty. Barry, Charges of Brutality, supra, at A1; see also Leonard Levitt, A Detective Trans-
ferred, NEWSDAY, Aug. 28, 1997, at A33 (indicating that a total of 19 officers have been disciplined
in connection with the incident). Officer Volpe has been criminally charged in the incident with sex-
ual abuse and assault. See Barry, Charges of Brutality, supra, at Al. A second officer, who helped
Volpe hold down the victim, was also charged, as well as two other officers involved in the incident. ·
See Barry, 2d Police Officer Charged in Attack on A"ested Man, supra,§ 1, at 1; Wickham, supra.
Mr. Louima and his family were placed under police protection due to threats made by his attackers.
See, e.g., Tom Hays, Vicious Attack Stains City's Improved Image, Hous. C~oN., Aug. 16, 1997, at
3.
25. See Barry, Charges of Brutality, supra note 24, at A1 (indicating that ·difficulties with in-
vestigation of 70th Precinct brutality is a result of "reluctance of some officers . . . .to cooperate,"
that there is pressure on officers from both colleagues and union officials to withhold infonnation,
and that there is evidence that officers attempted to " 'cover tracks and clean things up' "); Joel Ber-
ger, See-No-Evil Officers Should Pay, N.Y. TIMES, Aug. 24, 1997, § 4, at 13 (discussing cover-up of
police brutality in New York); Lawrence Goodman, Louima Coverup Try? Teen Sez Cops Ordered
Silence, DAD..Y NEWs (New York), Sept. 4, 1997, at 6 (reporting that witness in 70th Precinct holding
cen ·saw police officers and at least one paramedic conspire to cover up injuries to victim); Tom
Hays, New York Police Deny Injuring Haiti Immigrant, AusTIN-A.M.-STATESMAN, Aug. 23, 1997, at
A4 {reporting that explanation given by police that victim's injuries were result of "homosexual act"
was, according to lawyer for victim, cover-up); Kifner, Investigators Looking at New Allegations,
supra note 24, at B 1 (reporting that prosecutOrs investigating alleged 70th Precinct brutality widened
inquiry to detennine whether officers attempted to cover up attack); Editorial, Know Them by Their
Silence, DAD..Y NBws (New York), Aug. 20, 1997, at 32 (suggesting the existence of code of silence
in alleged 70th Precinct brutality case); David Kocieniewski, Detective Mishandled Early np in Tor-
ture Case, the Police Say, N.Y. TIMES, Aug. 24, 1997, § 1, at 27 (reporting that lawyers for victim
of alleged 70th Precinct brutality cite delay in logging number to case as evidence of police cover-
up); Lewis, supra note 18, at L13 (discussing code of silence surrounding 70th Precinct brutality
scandal); Wickham, supra note 24 (detailing substance of 70th Precinct conspiracy and cover-up
among officers); All Things . Considered, Blue Wall of Silence, supra note 15 (discussing the "blue
wall of silence"); News Forum (WNBC television broadcast, Aug. 24, 1997), available in 1997 WL
10281561 (discussing the "blue wall of silence" in New York). But see Goozner, supra note 24, at 1
(asserting that "shakeup" at 70th Precinct, including removal of captain and reassignment of nine of-
ficers for failing to cooperate in investigation, indicates collapse of ·~blue wall of silence,.); CBS
Evening News: Police Officers Beginning to Cooperate in Case of Sexual Abuse and Assault of a
Haitian New York Resident by a Fellow Officer (CBS television broadcast, Aug. 16, 1997), available
in 1997 WL 5614872 (asserting that "blue wall of silence" has begun to come down in New York
due to 70th Precinct brutality case, and quoting police commissioner Howard Safir as stating
"[t]here absolutely is not a blue wall of silence"); Nightline: Voices from the NYPD's Brooklyn Pre-
cincts (ABC television broadcast, Aug. 21, 1997), available in LEXIS, News Library (according to
NYC police officer interviewed, "[i]f someone is committing a criminal act, there's no such thing as
a blue wall of silence").
Evidence of the operation of the code of silence in the Brooklyn torture case is abundant. For
example, investigators in the case indicated that "the sequeilce of events inside the station house re-
1998] BLUE WALL OF Sll...ENCE 243

some 100 officers granted departmental immunity and interviewed by in-

mained clouded by contradiction and the reluctance of some officers at the 70th Precinct to cooper-
ate," and that "'there is a lot of pressure' on officers, from colleagues and union officiaJs, not to
provide information." Barry, Charges of Brutality, supra note 24, at Al. Some commentators allege
that delays in key events by police officers and officials is a product of a cover-up in the case. In
particular, a delay of 36 hours between the time of the incident and the time investigators even
stepped foot in the 70th Precinct station house may have allowed fellow officers time to hide or de-
stroy evidence implicating Officer Volpe, including the wooden stick used to sodomize Mr. Louima,
see Barry, Charges of Brutaiity, supra note 24, at A1; Lewis, supra note 18, at L13, and other in-
criminating evidence, see Dan Barry, Officers' Silence Still Thwarting Torture Inquiry, N.Y. TIMEs,
Sept. 5, 1997, at A1 [hereinafter Barry, Officers' Silence StU/ Thwarting Torture Inquiry] (asserting
that Officer Volpe's locker had been "cleaned out" by the time investigators arrived to search);
Kifner, supra note 15, at B3 (reporting that according to investigators, police companions of Officer
Volpe cleaned dreadlocks cut by Volpe from the hair of Jamaican suspects from his locker before In-
ternal Affairs investigators could search for evidence). In fact, detectives did not begin searching for
the stick allegedly used in the attack until four days after the attack, see John Kifner, Nurse Claims
Staff Cover-Up On Louima, N.Y. TIMEs, Aug. 25, 1997, at B1 [hereinafter Kifner, Nurse Claims
Staff Cover-Up On Louima], and did not begin a general investigation until receiving a second call
on the incident, 36 hours after the initial reports of the attack, see Bob Herbert, In America, N.Y.
TIMEs, Aug. 24, 1997, § 4, at 13. Moreover, a nurse who was involved in treating Mr. Louima re-
ported that when she called intemaJ affairs to report the incident, "[i]t seemed like [the officer]
didn't care," that she felt that her call was not taken seriously, and that the lax attitude was evidence
that the police were biding time to secure the scene in furtherance of a cover-up. Kifner, Nurse Says
Some Hospital Supervisors 1tied to Cover Up Facts, supra note 24, at B3. In addition, New York
Mayor Rudolph Giuliani "demanded that other officers at the [70th] precinct set aside allegiance to
colleagues and step forward with anything they know." Barry, Charges of Brutality, supra note 24,
at Al. Two officers have confmned the allegations of brutaJity, but only after "parrot[ing] the gay-
bashing version of what happened to Louima." Wickham, supra note 24. More importantly, out of
almost 100 officers who have been granted limited immunity in the case and interviewed by investi-
gators, only two stepped forward, while the others commented that they knew nothing about the inci-
dent or were not present. See Barry, Officers' Silence Still Thwarting Torture Inquiry, supra, at A1;
Lewis, supra note 18, at L13. Police Commissioner Howard Safrr placed all 700 internal affairs in-
vestigators on the case-an indication that Commissioner Safrr has "reason to believe there's a prob-
lem" in New York. EditoriaJ, Brutal Attack of NYC Man in Police Custody and Other Studies Un-
derscore the Need to Address Police Brutality Issue, PosT-STANDARD (Syracuse), Aug. 20, 1997, at
A12.
There are also indications that the operation of the code of silence in this instance is far-
reaching. For example, nurses at the hospital to which Mr. Louima was brought reported that super-
visors attempted to pressure them to adhere to the story that Mr. Louima was injured at a gay bar,
even though Mr. Louima had described the nature of his injuries to nurses. See Kifner, Nurse Claims
Staff Cover-Up o, Louima, supra, at B1; Kifner, Nurse Says Some Hospital Supervisors 1tied to
Cover Up Facts, supra note 24, at B3. In fact, one nurse indicated that officials had pressured her to
change her written report of the incident. See id. Moreover, a witness who was present in one of the
70th Precinct holding cel1s stated that paramedics who responded to the call conspired to cover up
the attack with the officers involved. See Goodman, supra, at 6. Finally, in a particularly alarming
incident, one of the surgeons who operated on Mr. Louima "was threatened by an anonymous caller
who encouraged the doctor to end" Mr. Louima's life, or else the caller would "get him [the sur-
geon]." Dan Morrison, Louima's Surgeon Threatened, NBWSDAY, Sept. 6, 1997, at A29. Officials
stated that investigators were "considering the possibility that the call came from a police officer."
/d.
 244 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

vestigators, only two came forward to tell the story.26 The city was com-
pelled to place the two officers and their families under twenty-four-
hour~a-day armed guard, fearing retaliation from fellow officers of the
New York City Police Department.27
Part N of this article proposes a partial solution to the problem of
police perjury. In some jurisdictions, defendants will be able to show,
through expert testimony or commission reports, that officers are subject
to a code of silence. In cases where testimony helpful to a defendant
would violate the code of silence, the jury should be allowed to hear that
fact when evaluating the testimony of the officer. While our research has
uncovered no cases in which this approach was used in a criminal prose-
cution, the proposal involves nothing more than application of traditional
rules allowing a witness to be impeached for bias or motive to lie to ·a
novel situation.
This approach would have several salutary effects. First, by giving
I
juries more information about the credibility of witnesses, it should in-
II crease the accuracy of criminal trials. Perhaps more importantly, it
Ill
.should contribute to breaking down the blue wall of silence. If police of-
il l ficials and prosecutors eliminate a code of silence in a particular jurisdic-
l[l ' tion, there would no longer be any basis to allow impeachment of of-
:rl ficers on the ground that they might be influenced by it.
1. ! ..
'I This proposal is consciously incremental and practical. There might
':!
'I!" be ways of solving the problem of police perjury more quickly and more
:!i
i·J
effectively by, for example, giving prosecutors direct control over the po-
lice within their jurisdiction. If police officers were subject to direction

26. See Lewis, supra note 18, at L13.

27. See Barry, 2d Police Officer Charged in Attack on Arrested Man, supra note 24, § 1, at 1;
James Bone, Blacks in Anti-Police Protest, TIMBs OF LoNDON, Aug. 18, 1997, at 11; Brutality in the
Precinct; N.Y.P.D.'s Reputation Soiled by the Code of Silence, Prrr. PosT-GAZETIE, Aug. 25, 1997, at
AS; Cooper, supra note 15, at B3; John Kifner, Charges of Brutality: The Overview,· Thousands
March to Protest Police, N.Y. TIMBs, Aug. 17, 1997, § 1, at 1; Paul Schwartzman, 2d Cop Held in
Torture Case, DJ.n.y NEws (New York), Aug. 16, 1997; at 3; Frank Serpico, Setting the Tone for Po-
lice Reform, N.Y. TIMES, Aug. 30, 1997, § 1, at 23; see also Editorial, Know Them by Their Silence,
supra note 25, at 32 (asserting that "Thretzky [officer who first came forward in Louima case] is
under police protection, which says two things quite clearly. 1) When it comes to certain cops, a
man with a conscience can be in danger; and, 2) Obviously, there are enough decent sorts in the
NYPD to afford Thretzky the protection he deserves. And needs."); Lewis, supra note 18, at L13
(quoting interview with a Manhattan police officer: "When we're out there late at night, we only
have each other. . . . When a problem arises, he'd only have to tum his back. I might get blown
away.... Trust me, it's happened."); News Forum, supra note 25 (Police Commissioner Saftr com-
mented that Officer Boria, who testified at the trial of a New York officer who applied a fatal
chokehold to a suspect, had to be protected because she indicated that the suspect was not strug-
gling, but lying motionless when the hold was applied).

II'
1998] BLUE WALL OF SILENCE 245

and discipline by prosecutors, it might well be that police conduct would

improve. Such a reform might be worth thinking about; because police
investigatory work is ultimately on behalf of prosecutors, it might be jus-
tifiable to give prosecutors authority over how investigations are per-
formed. In addition, although prosecutors are under pressure to win
cases, they are also subject to discipline by courts in a way that police
officers are not. Whatever the merit and deficiencies of this structural re-
form, it is inconceivable that it could ever actually happen. The approach
set forth in this article is less grand, but, we hope, more realistic.

II. THE PROBLEM OF POLICE PERJURY

·It seems self-evident that truth is generally good and lies are gener-
ally bad.28 Nevertheless, police perjury creates particular problems that
other kinds of perjury do not, and thus should be treated as a matter of
special concern by the criminal justice system. Police testimony, even
perjurious testimony, is more persuasive to juries than testimony by civil-
ian witnesses.29 Police are professional witnesses, perhaps the most ex-
perienced witnesses of any occupational group. 30 Moreover, officers have
special credibility. In a confrontation between a civilian and a "blue
knight," a clear-eyec:i Uniformed police officer, jurors may well bend over
backwards to believe the person in blue.31
While police officers may not be inherently more likely to commit
perjury than civilian witnesses, unlike witnesses in civil matters, they tes-
tify in cases where liberty or even life is routinely at stake. Thus, as dis-
cussed in part II.A, police perjury is more likely to lead to serious injus-
tice-imprisonment or even execution of an innocent person. 32

· 28. See Exodus 21:23 ("[A]nd God spake these words, saying: ••. 'thou shall not bear false
wibless against they neighbor.'"); 2 Mloum. CERVANTES, DoN QUIXOTE 33 ("Honesty is the best
policy.").
29. See infra notes 107-08 and accompanying text
30. See, e.g., Stanley A. Goldman, Guilt by Intuition: The Insufficiency of Prior Inconsistent
Statements to Convict, 65 N.C. L. REv. 1, 20 (1986) (suggesting that police officers have experience
testifying in court); Comment, Good Cop-Bad Cop: Reassessing the Legal Remedies for Police Mis-
conduct, 1993 UTAH L. REv. 149, 185 (asserting that since police officers are experienced wiblesses
they are well respected by jurors, appearing to be highly credible).
31. See infra notes 107-08 and accompanying text
32. "[T]he deprivation of an innocent defendant's life or liberty by the use of false testimony
to secure his conviction violates his constitutional right to due process and is the most serious mis-
carriage of justice imaginable." Lisa C. Harris, Note, Perjury Defeats Justice, 42 WAYNE L. REv.
1755, 1758 (1996) (citing MICHAEL L. RADELBT ET AL., IN SPITE OF INNOCENCE: ERRONEOUS CONVIC-
TIONS IN CAPITAL CASES (1992) and Bryan K. Fair, Using Parrots to Kill Mockingbirds: Yet Another
Racial Prosecution and Wrongful Conviction In Maycomb, 45 ALA. L. REv. 403, 426 (1994)).
 246 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

What is probably a more common forni of police perjury occurs

with respect to defendants whom the police believe to be guilty and who
may in fact be guilty. Many commentators believe that police frequently
lie in the context of pretrial suppression hearings which determine claims
that evidence was seized as the result of an unconstitutional search or ar-
rest and thus should be suppressed pursuant to the exclusionary rule and
deemed inadmissible at trial. 33 Critics of the exclusionary rule may feel
some sympathy to police who shade the truth in this context.34 But even
f~r those who reject the exclusionary rule, there are reasons to demand
that the police tell the truth.

A. Frame-Ups
In a recent case, New Yorker . Daniel Batista, who had a clean re-
cord, was convicted of criminal possession of a weapon. 35 Batista's
claim, supported by several civilian witnesses, was that the officers
planted the gun after keys they confiscated from him failed to open doors
of apartments the officers wanted to rob.36 The officers, by contrast, testi-
fied that they found a frrearm in Batista's possession.37 One of the of-
ficers was later imprisoned for framing another defendant; the other was
convicted of extorting money from drug dealers. 38 Batista's conviction
· was vacated only after he had served his prison sentence.39 The jury fore-
woman later explained her vote in a case which now appears to have
been a miscarriage of justice by saying, " '(i]t came down to the police
officers' word against him and his friends . . . . And we just couldn't
think of any reason why the police officers would go to the trouble of
making up a story and framing someone.' " 40
Unfortunately, police sometimes simply frame innocent people.
When the cities are full of crime, it may seem odd that the police would
choose to frame the innocent, rather than frame the guilty or simply use
legitimate methods to prosecute criminals. However, a number of circum-

33. See infra part ll.B.

34. Some suggest that judges deny suppression motions in cases where police testimony is du-
bious because they do not want to exclude probative evidence. See U.S. DEP'T OP JusTICE OPPICB OP
LEGAL POUCY, REPoRT TO THE ATTORNEY GENERAL: THE SEARCH AND SEIZURE ExCLUSIONARY RULB
27 (1986); Cloud, supra note 13, at 1323.
35. See Kocieniewski, supra note 4, § 1, at Al.
36. See id.
37. See id.
38. See id.
39. See id.
40. Jd.
1998] BLUE WALL OF SILENCE 247

stances have motivated police officers to frame innocent people. Some-

times police find it necessary to prosecute an innocent person to make it
appear that police officers are doing their jobs. For example, vice officers
receiving protection money sometimes arrest a "stand-in" provided by
the gamblers. In this way, the business of actual gamblers is undisturbed
and the officers look busy. 41 In other circumstances, unwilling .citizens
have been framed to provide cover for officers on the take who cannot,
of course, arrest their benefactors. For example, one investigation of the
New York Police Department concluded that "where the end of a month
approached, and the record of arrests and convictions was low, the of-
ficers would arrest women indiscriminately, and frame up cases against
them, until the number so arrested was sufficient to bring the officers'
records up to the desired number. " 42 Under a phenomenon known as
"coliars for dollars,, officers make questionable arrests near the end of
their tour of duty to earn overtime pay while processing a defendant
through the system.43 Police officers have framed innocent people as part
of extortion schemes.44 Police also sometimes frame the guilty, "to con-
ceal other underlying acts of corruption or to conceal illegal steps taken
for what officers often perceive as 'legitimate' law enforcement ends." 45

41. See EDWARDS. SILVER, REPoRT OP SPECIAL INvEsTIGATION BY THE DISTRICI' ATTORNEY OP
K.INGS COUNTY AND THE DECEMBER 1949 GRAND JURY, DBCBMBBR 1949 TO APRIL 1954 at 54-55
(1955) [hereinafter HBLPAND REPORT], reprinted in 4 CHIN, supra note 5; see also KNAPP CoMMIS-
SION, supra note 19, at 28, 83.
42. FINAL REPORT OP SAMUBL SEABURY, RBFmum, IN THE MATTBR OF THE INvEsTIGATION OP
THE MAGISTRATB's CoURTS IN THE FIRsT JUDICIAL DEPARTMENT AND THE MAGISTRATES 'fHERBoP, AND
OP ATTORNEYS AT LAW PRAcnCING IN SAID COURTS at 95-96 (Mar. 28, 1932) [hereinafter SEABURY
REPORT], reprinted in 3 CHIN, supra note 5. ·
43. See, e.g., 1 CHIN, supra note 5, at xix n.44; MoLLBN COMMISSION, supra note 5, at 39-40;
DAVID HBILBRONBR, ROUGH JUSTICE: DAYS AND NIGHTS OF A YOUNG D.A. 65-66 (1990) (noting exis-
tence of "collars for dollars" phenomenon).
44. See 1 CHIN, supra note 5, at xix n.45; KNAPP COMMISSION, supra note 19, at 83-84
(describing practice of arresting bookmakers without evidence and then releasing them without filing
charges, or, if charges were filed, intentionally botching cases for a fee); id. at 94-98 (describing
threats of false narcotics charges); REPoRT OP THE SPECIAL COMMITTBB APPOINTBD TO INvBsTIGATB
THE POUCB DEPARTMENT OP Tim CITY OP NBW YORK at 43-45 [hereinafter LEXOW REPoRT] (Clarence
Lexow, .Chair) (describing frame-up of immigrant woman on prostitution charges, resulting in her
loss of her children, and noting that "[m]any cases of similar oppression are found in the record"),
reprinted in 1 CHIN, supra note 5; SEABURY REPoRT, supra note 42, at 80-96 (discussing frame-ups
in general and describing several individual cases).
45. MoLLEN CoMMISSION, supra note 5, at 37; see also id. at 36-43 (noting perjury and falsifi-
cation of documents).
248 UNIVERSITY OF PITISBURGH LAW REVIEW [Vol. 59:233

B. Police Perjury in Suppression Hearings

Perhaps the most common form of police perjury occurs in suppres-
sion hearings-pretrial proceedings designed to determine claims that ev-
idence seized in the course of an illegal search or arrest should be sup-
presse<;l pursuant to the "exclusionary rule" and deemed inadmissible at
trial.46 In the variant known as "dropsy" testimony, the police attempt to
circumvent the Fourth Amendment's search and seizure requirements by

46. See MoLLBN CoMMISSION, supra note 5, at 36. The Fourth Amend~ent to the United
States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures." U.S. CoNST. amend. IV. Absent a search
warrant, a police officer may not legally search a person in compliance with the Fourth. Amendment
unless the officer's search conforms with one of the exceptions to the warrant requirement. See
Comment, supra note 12, at 510. A warrant is not required if the search is incident to a lawful ar-
rest. See id. "To perform a search incident to an arrest, a police officer must first possess probable
cause to arrest a suspect in the belief that the suspect is committing or has committed a felony." /d.;
'see also, e.g., Brinegar v. United States, 338 U.S. 160, 175-76 (1949) ("Probable cause exists where
'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably
trustworthy information, [are] sufficient in themselves to warrant a man of reasonable caution in the
belief that' an offense has been or is being committed.") (quoting Carroll v. United States, 267 U.S.
132, 162 (1925)) (alterations in original). A second exception to the warrant requirement is the "stop
and frisk" exception, which permits the officer to stop and interrogate a suspect if the officer reason-
ably believes the suspect is engaging in criminal activity. See Comment, supra note 12, at 511 (cit-
ing Terry v. Ohio, 392 U.S. 1, 30 (1968)). In addition, the Fourth Amendment does not apply where
activities are carried on; or evidence is located, in plain view of the officer. See Comment, supra
note 12, at 512.
Throughout most of the nation's history, no mechanism existed to enforce the provisionS of the
Fourth Amendment. See, e.g., Orfield, supra note 10, at 76. ·Thus, if an individual suspected of a
crime was searched without probable cause in violation of the Fourth Amendment, and was found to
possess illegal contraband, the evidence was freely admissible. In 1914, however, the United States
Supreme Court established the "exclusionary rule" in Weeks v. United States, 232 U.S. 383 (1914).
The exclusionacy rule provided that "'evidence obtained from the defendant [in a criminal prosecu-
tion] in violation of his constitutional rights to be free from unreasonable searches and seizures will
be suppressed by order of the court.'" JEROME H. SKOLNICK, JUSTICE Wrmour TRIAL 211 (1966)
(quoting Francis A. Allen, The Exclusionary Rule in the American Law of Search and Seizure, in Po-
UCB PoWER AND INI>MDUAL FREEDOM 77 (ciaude R. Sowle ed., 1962)). The application of the ex-
clusionary rule as propounded by Weeks was initially limited to federal prosecutions until 1961,
when the Supreme Court's decision in Mappv. Ohio, 367 U.S. 643 (1961), imposed the exclusionary
rule upon the states. Thus, subsequent to Mapp, police officers found that they could no longer vio-
late constitutional standards and testify truthfully about their search and seizure actions because
Mapp rendered the illegally-obtained evidence inadmissible.
Some police responded to Mapp by tailoring their testimony about their actions; for example, to
fit into the exceptions to the warrant requirement See, e.g., Sarah Barlow, Patterns of A"ests for ·
Misdemeanor Narcotics Possession: Manhattan Police Practices 1960-62, 4 CRIM. L. BULL. 549, 552
(1968); Younger, The Perjury Routine, supra note 13, at 5%-97. Officers might make the facts fit
constitutional mandates by testifying that the suspect dropped the contraband, that the suspect actu-
ally gave the contraband to the officer, that the suspect held the contraband in his or her hand, or
that the contraband was found in full view near the suspect (open possession). See Barlow, supra,at
555-61.
1998] BLUE WALL OF SILENCE 249

falsely testifying that a suspect dropped the narcotics or other contraband

and ran upon seeing the officer, thus clothing the officer with authority
to seize the contraband and probable cause to make an arrest. 47 In reality,
the arrest may have been the result of a police shakedown, without prob-
able cause and in violation of the suspect's Fourth Amendment rights,
which revealed after the fact that the suspect did indeed possess illegal
contraband.
Courts and commentators have noted that this type of dropsy testi-
mony occurs often, typically in the same boilerplate fashion each time.48
According to Irving Younger, "[s]pend a f~w hours in the New York
City Criminal Court ... and you will hear case after case in which a po-
liceman testifies that the defendant dropped the narcotics on the ground,
whereupon the policeman arrested him. Usually the very language of the
testimony is identical from one case to another." 49
The Mollen Commission recently concluded that perjury is "widely
tolerated by corrupt and honest officers alike, as well as their supervi-
sors. " 50 Even in the context of suppression hearings, police perjury is al-
most never wholly successful. The defendant knows that the police lied.
The defendant's friends, family and neighbors may well believe him
when he says "I did it, but the police lied on me." Seeing members of
orie's community sent to prison· based ·on solemn lies undermines belief
in the very legitimacy of the law. 51 As one criminal defense lawyer. as-
serts: "From my experience .... the prevalent injustice in the current

47. See, e.g., Barlow, supra note 46, at 549; Comment, supra note 12, at 507; see also People
v. McMurty, 314 N.Y.S.2d 194, 195-97 (Crim. Ct. 1970) (Younger, J.).
48. See McMurty, 314 N.Y.S.2d at 195-96. In McMurty, Judge Irving Younger summarized the
problem of dropsy testimony as follows:
Were this the first time a policeman had testified that a defendant dropped a packet of
drugs to the ground,' the matter would be unremarkable. The extraordinary thing is that each
year in our criminal courts policemen give such testimony in hundreds, perhaps thousands, of
cases-and that, in a nutshell, is the problem of "dropsy" testiinony.
Id.
49. Younger, The Perjury Routine, supra note 13, at 596.
50. MoLLEN CoMMISSION, supra note 5, at 40; see also, e.g., Rudovsky, supra note 15, at 482
(describing confidence by LAPD officers that bragging about beating of Rodney King over police
computer system would result in no punishment); Patton, supra note 15, at 780 (asserting that "[i]f
the upper ranks do not enforce violations of department policy, there will be no curb on officers'
misconduct"); 2 More A"ested in N.Y. Police Brutality Case, L.A. TIMEs, Aug. 19, 1997, at A19
(" '[P]olice officers are alleged to have committed an act of almost incomprehensible depravity
within a police precinct and with the apparent expectation that they would get away with it.' ");
Judy Rakowsky, Jury Finds Police Killed Inmate, BosTON GLOBE, Mar. 9, 1996, at 1 (quoting attor-
ney for family of killed prisoner: "'[O]fficers know they could go out and violate people's constitu-
tional rights and then the chief will back them up.' ").
51. See Joe Sexton, Jurors Question Honesty of Police, N.Y. TIMEs, Sept. 25, 1995, at B3.
 250 UNIVERSITY OF PITISBURGH LAW REVIEW [Vol. 59:233

process does . . . harm by further lessening respect for the law, not just
in the criminal defendants, but also in friends, fami~y, witnesses, and
spectators. The lessons are communicated to all . . . who are touched by
the process." 52
There is evidence that Justice Brandeis's famous prediction in Olm-
stead v. United States, 53 has come true. In that case, he wrote: "To de-
clare that in the administration of the criminal law the end justifies the
means-to declare that the Government may commit crimes in order to
I:.: secure the conviction of a private criminal-would bring terrible retribu-
!): tion."54 Seven decades later, the Mollen Commission noted that "[m]any
';I\ law enforcement officials . . . believe that police falsification has led to a
I :i rise in acquittals because juries increasingly suspect and reject police tes-
timony. " 55 Perjury committed to enforce the law, then, paradoxically may
ultimately lead to the acquittal of the guilty.

C. The Blue Wall of Silence and Police Perjury

Another form of perjury is caused by the nature of police culture.
Commentators have indicated that "closed groups," .like ·police depart-
ments, often develop unwritten rules which dictate appropriate conduct in
different circumstances. 56 Professors Jerome Skolnick and James Fyfe
posit that all occupational groups at some point develop particular norms
and values which are sculpted by that group's experiences.57 "[A] spe-
cific world of work is rather like a game: One has to know the rules in
order to play properly. " 58 Groups may develop values which "are man-
dates peculiar to and appreciated only by members" in response to
unique circumstances.59 The police are an example of such a group. Ac-
I .: i
i:i
'i.: I [
52. John B. Mitchell, The Ethics of the Criminal Defense Attorney-New Answers to Old
I I:
Questions, 32 STAN. L. REv. 293, 326 (1980).
53. 277 u.s. 438 (1928).
54. Id. at 485 (Brandeis, J., dissenting).
55. MOll.EN COMMISSION, supra no~ 5, at 39; see also N.Y.C. COMMISSION ON HUMAN RlGms,
BREAKING TilE Us V. THEM BARRIER: A REPORT ON PouCEICOMMUNITY RELATIONS at iv (1993) (rec-
ommending appointment of a special prosecutor "to enhance the faith of New York City communi-
ties in the prosecution of police misconduct and corruption"); Paul Butler, Racially Based Jury Nul-
lification: Black Power in the Criminal Justice System, 105 YALE LJ. 677 (1995); Qifford Krauss,
Poll Finds Lack of Faith in PoUce, N.Y. TIMEs, June 19, 1994, at A1 (noting poll results showing
disbelief of police). .
56. See MAURICE PuNCH, CONDUCT UNBECOMING 155 (1985); SKOLNICK & FYFB, supra note
15, at 90.
57. See SKOLNICK & FYFB, supra note 15, at 90.
58. Id.
59. Id.

'li
1998] BLUE WALL OF SILENCE 251

cording to Skolnick and Fyfe, "[t]he fundamental culture of policing is

everywhere similar, which is understandable since everywhere the same
features of the police role-danger, authority, and the mandate to use co-
ercive force-are everywhere present. This combination generates and
supports norms of internal solidarity, or brotherho.od. " 60
The experience of danger and authority may contribute to the crea-
tion of a police code of silence.61 The combination of the two creates a
volatile environment in which the· police may develop values at odds
with those of the larger society. As these features of the police role are
incorporated into officers' underlying values and ideals, the end result
may be a cultural matrix which entails "a banding together, a cover-up, a
conspiracy of silence. " 62 This facet of police culture, at least in the eyes
of the culture's members, provides protection. Such a close-knit camara-
derie becomes the foundation for personal security ·in a hazardous, and
even life-threatening day-to-day line of work, where officers rely upon
their companions for protection.63 Even otherwise honest officers, in the
face of another's misconduct, may look the other way due to the enor-
mous pressure to maintairl silence, and may even commit perjury in an
attempt to conceal the misconduct from courts, prosecutors, and the
public.64
The nature of the work of the police itself may also contribute to a
code of silence. There exist strong pressures upon the police from the
public, the media, and the courts to provide society with exceptional pro-
tection in often dangerous situations, while at ·the same time conducting
themselves with the utmost honesty and trustworthiness.65 In addition, po-

60. Jd. .at 92; see also KNAPP CoMMISSION, supra note 19, at 6 (reporting that one of the fac-
tors which gives rise to unique police loyalty is exposure to danger); Patton, supra note 15, at 763
(" 'The code of silence that exists in every profession is even stronger among police officers out of
necessity. You depend on each other in life and death situations. This brotherhood/camaraderie is a
strong influence•...• ' ") (quoting Telephone Interview with Frank Saunders, California-based expert
witness and fonner police officer who has testified at over 500 trials (Jan. 25, 1992)) (omission in
original).
61. See SKOLNICK & FYFB, supra note 15, at 90.
62. Jd.
63. See MoiLBN COMMISSION, supra note 5, at 53 ("[T]he loyalty ethic is particularly powerful
in crime-ridden precincts where officers most depend upon each other for their safety each day
.... ").
64. See id.
65. See Comment, supra note 12, at 514-16; All Things Considered, Blue Wall of Silence,
supra note 15 (noting that police officers "often see themselves as a unique corps doing a dangerous
job for an uncaring public that doesn't really understand them"). In the context of dropsy-type cir-
cumstances of police perjury, the Georgetown Law Journal study of perjury in dropsy cases found
that factors which motivate police behavior include, inter aUa, citizen pressure on the police and
252 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

lice often feel that the media is quick to criticize their . behavior, 66 and
may even hinder their ability to perform their job.67 Thus, "dilemmas in
producing satisfactory work-owing . to pressure for results, ambiguous
legislation, vulnerability to legal sanctions, and precarious bargains with
criminals, informants, and lawyers-can read to short-cut methods, lies,
covering-up, falsification of evidence, and intimidation of suspects. " 68
These circumstances may lead officers to feel a strong sense of
identity with their police culture.69 This, coupled with the closed nature
of the culture, the resentment of police by the public,70 the dangers and
volatility of police ·work, and officers' dependance upon one another for
mutual safety,71 spawns a strong loyalty on .the part of police officers to
each other. 72 Although a loyalty ethic in the abstract may not necessarily
result in corruption and a code of silence, group loyalty .in the context of
the unique aspects of police socialization "makes allegiance to fellow of-

goals set by what the public expects and by what the police consider to be necessary for continued
authority. See Comment, supra note 12, at 514-16.
66. See POLICE STRATEGY No.7, supra note 15, at 16-17.
67. See, e.g., id. at 22 (noting that 82.4% of police officers responding to NYPD survey indi-
cated that they disagree with the proposition that the media helps the police do their job).
68. PuNcH, supra note 56, at 3.
69. See Possley & Martin, supra note 18, at 1 (noting that officers may consider peers "fam-
ily"); All Things Considered, Blue Wall of Silence.• supra note 15 (asserting that the "[p]olice tend to
socialize together outside of \VOrk more than other professions").
70. See MaLLEN CoMMissiON, supra note 5, at 52 (asserting that members of the public resent
the police interfering with their activities). This notion has been recognized in New York · by the
Knapp Commission report as well, prepared two decades before the Mollen Commission report, in
response to a series of news article appearing in the New York Times alleging widespread ·police cor-
ruption and laxity in handling such corruption. See KNAPP CoMMISSION, supra note 19, at preface &
6. The Knapp Commission reported that "[n]obody, whether a burglar or a Sunday motorist, likes to
have his activities interfered with. As a result, most citizens, at one time or another, regard the ·po-
lice with varying degrees of hostility." /d. at 6.
71. See, e.g., Patton, supra note 15, at 763 (police officers depend on each other in life and
death situations).
72. See MOLLBN COMMISSION, supra note 5, at 52; KNAPP COMMISSION, supra note 19, at 6.
Clifford Krauss has identified two separate factors which contribute to intense police loyalty: the
stress of long hours and brutal crimes. See Krauss, supra note 18, at B 1. Intense loyalty has been
recognized as a barrier to infonnation in various contexts. Probably the most well known context en-
tailing the most intense form of loyalty is the Mafia oath of silence known as "omerta." See United
States v. Gotti, 171 F.R.D. 19, 52 (E.D.N.Y. 1997); see also Daniel C. Richman, Cooperating Cli-
ents, 56 Omo ST. LJ. 69, 78 (1995); Sara Jankiewicz, Comment, Glasnost and the Growth of Global
Organized Crime, 18 Hous. J. INT'L L . 215, 222 & n.42 (1995). Intense loyalty has spawned codes
of silence among prisoners as well. See United States v. Abel, 469 U.S. 45, 47 (1984); Schlup v.
Delo, 912 F. Supp. 448, 453 (E.D. Mo. 1995); People v. Griffith, 634 N.E.2d 1069, 1072-73 (Dl.
1994). Other contexts include loyalties based upon friendships, blood relationships, ethnic ties, or
gang membership, and even allegiance of corporate employees to their.company. See, e.g., Richman,
supra, at 78-79.
1998] BLUE WALL OF SILENCE 253

fleers-even corrupt ones-more important than allegiance to the Depart-

ment and the community. When this happens, loyalty itself becomes cor-
rupt and erects the strongest barriers to corruption control: the code of
silence and the 'Us vs. Them' mentality." 73 Thus, an unswerving loyalty
can lead to the perpetuation of corruption and a code of silence within a
department.74
Officers' exposure to the loyalty ethic and the code of silence can
occur as early on as the officer's attendance at the police academy.75 The
practice of affmnatively teaching a code of silence early in an officer's
career assists in deeply rooting this mentality within the culture.76
Once a code of silence is ingrained in a police department's cultural
matrix, it may be difficult to eradicate. According to the Mollen Com-
mission report, often even otherwise honest officers who may not ap""
prove of the code of silence will nevertheless reluctantly heed its man-
dates. 77 The Mollen Commission report -indicated that honest officers
deplore corruption and even wish that corrupt officers would be caught,
but are handcuffed in taking any action because of the code of silence.78

73. MOLLBN CoMMISSION, supra note 5, at 53. According to the Mollen Commission, the "Us
vs. Them" menta1ity consists of the notion that officers sometimes view the public as the "enemy."
ld. at 58.
74. See MoLLBN COMMISSION, supra note 5, at 51. The Mollen Commission report asserts that
these aspects of police culture "encourage corruption by setting a standard that nothing is more im-
portant than the unswerving loyalty of officers to one another." Id. In addition, "these attitudes
thwart efforts to control corruption. They lead officers to protect or cover up for others' crimes
•..• " Jd. at 51-52; see also PREsiDENT'S CoMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION
OF JUSTICE, TASK FoRCE REPoRT: THE PouCH 211 (1967) ("Whenever a number of dishonest officers
are tolerated by other officers within a police orgamzation, an atmosphere of mutuai support and
protection may develop, and eventuaJly it may taint the entire police system.").
75. See MoLLBN COMMISSION, supra note 5, at 55; see also Sharp v. City of Houston, 960 F.
Supp. 1164, 1174 (S.D. Tex. 1997) (allegations by police officer in claim against city that "custom"
included code of silence indicated by, inter alia, training in police academy that officers shall notre-
port and shaJl cover-up misconduct); Patton, supra note 15, at 780 (suggesting that field training of-
ficers can have a tremendous influence in establishing rookie officers' compliance with "unwritten"
department policies); Serpico: Pattern of Lies Lingers, supra note 15, at 9A (quoting Frank Serpico:
"'[the "brotherhood of lies"] is a system in which the cops learn to lie for each other, right from
the start. right out of the (police) academy'"); Watson, supra note 15, at MS (noting that rookie of-
ficer who participated in Rodney King beating probably would not have engaged in the activity if
his training officer had not implicitly shown his approval through silence). But see Kocieniewski,
supra note 4, § 1, at 1 (noting changes in New York City police Department cadet training to root
out police perjury and deception); Teach Lies? Angry Cop Denies it, ARizoNA REPuBLic, Mar. 16,
1995, at A2 (former Los Angeles police chief Willie Williams denies that officers are taught to lie in
police academy).
76. See Young, supra note 13, at 467 (asserting that "[s]enior police officers teach new of-
ficers that lying is one of the basic principles of policing").
77. See MOLLBN COMMISSION, supra note 5, at 57.
78. See id.
254 UNIVERSITY OF PITfSBURGH LAW REVIEW [Vol. 59:233

This is so, according to the Mollen Commission, because of the Draco-

nian consequences attached to violating the code of silence: "Officers
who report misconduct are ostracized and harassed; become targets of
complaints and even physical threats; and are made to fear that they will
be left alone on the streets in a time of crisis. " 79
Knowing that if one breaches the code of silence one may experi-
ence ostracism and harassment by his or her peers, officers may overlook
peer misconduct, and, more importantly, may even lie about such mis-
conduct to superiors, the public, and the courts. In the event officers fear
even more extreme consequences of breaching the code of silence, the
incidence of code of silence perjury where the necessity arises becomes a
strong possibility.
As a consequence of the code of silence, in cases involving allega-
tions of police misconduct, such as excessive force or brutality, courts
may hear boilerplate testimony by police .to conceal or justify their mal-
feasance or that of a fellow officer. Professor Alan Dershowitz has
claimed that he ·has "read dozens of transcripts of such .boilerplate police
testimony. " 80 Such police testimony, according to Professor Dershowitz,
may often be akin to the following:

We attempted to place the perpetrator under arrest, . . . but he began to swing

wildly at the officers. I tried to place him in handcuffs, . . . but he started to reach
into his jacket for what I believed to be a weapon. When I grabbed his hands in
order to prevent him from reaching for a weapon, he began to kick in every direc-
tion, hitting his legs against the side of the police car and other hard objects.
At this point, he fell to the ground and started to bang his ·head and body
against the pavement. We attempted to subdue him because we were concerned
that he would hurt himself. He was strong and it took us several minutes to subdue
him . . • . All of his injuries, and ours as ·well, were sustained as a result of his
resistance and our efforts to subdue him.81

79. ld. at 53; see also CHRISTOPHER COMMISSION, supra note 15, at 170 (fmding that officers
who give evidence of misconduct against fellow officers are often harassed, ostracized, and become
the targets of complaints); Rudovsky, supra note 15, at 487 (asserting that experienced officers in
Boston will not volunteer for Internal Affairs Division assignments "unless they are promised the
ability to choose their next assignment 'because they fear retribution once they [go back on the
street)'") (quoting REPoRT OF Tim BOSTON POLICE DEPARTMENT MANAGEMENT REVIEW COMMITI'EE
124 (Jan. 1992) (alteration in original)); Possley & Martin, supra note 18, at 1 (noting officers' fears
of ostracism by those considered "family").
80. Alan Dershowitz, A Police Badge is Not a License to Commit Perjury, SAN DIEGO UNION-
TR.IB., Apr. 4, 1991, at Bll.
81. ld.; see also Rudovsky, supra note 15, at 481. In a malicious prosecution and wrongful ar-
rest charge, an officer may justify arrest through fabricating evidence of assault on the officer. See
id. Because of the code of silence, other officers would testify either that they did not observe the
incident or confirm the fabrication and testify that the arresting officers acted properly in self-
defense. See id.
1998] BLUE WALL OF Sll...ENCE 255

According to Professor Dershowitz, all of the officers involved parrot the

bogus testimony, and the judge "shakes his head in knowing frustration,
but accepts the officers' account as credible." 82
Although this type of police perjury is similar to dropsy testilying, it
represents a more blatant variety of perjury, through which officers em-
brace outright lies, manufacture evidence, and falsify documents to con-
ceal police abuses or corruption in various forms. 83 The Mollen Commis-
sion found that ''corruption-cover" falsity was typically used by officers
who engaged in activities such as unlawful raids on drug houses, where
the officers would steal money or drugs and justify the raids by manufac-
turing evidence of tips by unidentified informants.84 Police created false

82. Dershowitz, supra note 80, at B 11.

83. See MOLLBN COMMISSION, supra note 5, at 37; Tarlow, supra note 18, at C2. Code of si-
lence testimony is distinguishable from dropsy testimony in that the fonner implicates a fonn of cor-
ruption not necessarily implicated by the latter. The code of silence involves an implicit or explicit
understanding between officers to protect each other through cover-up and even through aid in cor-
rupt activities. Thus, "[t]he code of silence does more than prevent testimony. It mandates that no
officer report another for misconduct, that supervisors not discipline officers for abuse, that wrongdo-
ing be covered up, and that any investigation or legal action into police misconduct be deflected and
discouraged." Rudovsky, supra note 15, at 487.
Dropsy testimony, on the other hand, may merely be the product of one officer's attempt to
achieve "justice" in the face of clear criminal activity-in dropsy cases, the presumption is that the
suspect actually possessed drugs, but that the drugs were discovered through illicit means. Therefore,
an officer may have idealistic motives behind her impropriety: lying for the public good, see Young,
supra note 13, at 463-64, or to achieve " 'legitimate' law enforcement ends." MoLLBN COMMISSION,
supra note 5, at 38. This does not mean that dropsy-type testimony cannot be the result of corruption
throughout a police department. In his book Conduct Unbecoming, Maurice Punch indicated that the
word "corruption" is used to refer to "both profiting in some way from abuse of power and the
abuse of power itself." PuNcH, supra note 56, at 12-13. Punch includes falsification of testimony in
one of his four categories of corruption-"Combatative (Strategic) Corruption"-pursuant to which
officers " 'build[] a case' in which the major goal is to make arrests, obtain convictions, confiscate
drugs, and get long sentences for criminals," by "usirig illicit means for organizationally and so-
cially approved ends." ld. at 13 (emphasis and citation omitted). Punch includes "lying under oath"
in his fourth category of corruption, called "Corruption as Perversion of Justice!' ld. at 14. Punch
indicated that this category implicates police officers' "motive ... to use one's power and position
to ensure that justice does or does not get done." /d. This involves "a policeman or group of police-
men who conspire to take revenge on someone or to avoid prosecution themselves." /d. Thus, the
more corrupt a department, the more likely it is that there will be incidence of dropsy testimony or
other fonns of testilying. See, e.g., MoLLBN CoMMISSION, supra note 5, at 36. Moreover, in a circum-
stance where multiple officers are present during the shakedown of a suspect, in order for the dropsy
testimony to succeed, the officers must conspire to stick to the same story. Therefore, ·although
dropsy-type testimony does not necessarily implicate a code of silence or pervasive, department-wide
corruption, it may often involve such underlying forces, and may even be the product of them. Fi-
nally, idealistic rationalizations behind police testilying or falsifications often fuels other types of
corruption. See id. at 39. Some corrupt officers reported to the Mollen Commission "that their cor-
rupt activities began from motives they believed to be legitimate." Id.
84. See MOLLEN COMMISSION, supra note 5, at 37.
256 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

excessive force claims by simply adding bogus charges of resisting arrest

to their arrest reports, and sticking to the stories at trial.85 In both in-
stances, where more than one officer was involved in the wrongful con-
duct or present at the scene, the officers would agree upon a common
false tale, and use that tale in complicity to justify the actions.
Although explicit agreements to fabricate between officers may exist
in these types of situations, officers may unilaterally decide to lie. As
one officer lies to conceal her own impropriety, others who may have
witnessed the actions of their fellow officer or who may have frrst-hand
knowledge . of such misconduct may engage in a variety of deceptive be-
haviors. For example, in the situation of paradigmatic dropsy .testimony,
a fellow officer who witnessed the incident may simply remain silent. If
questioned by her superiors, the fellow officer niay confirm the bogus
story. If called to testify in court about the actions, the officer may even
perjure herself to protect her fellow officer. There may be any number of
reasons why an officer would . go to such lengths to protect a fellow of-
ficer where the latter has clearly violated the suspect's constitutional
rights, but a common and compelling one is the overwhelming pressure
placed upon the officer to heed to the police code of silence. Thus, tes-
tilying such as that committed to cover up a fellow officer's malfeasance
may commonly be, to a large extent,- a function of the existence and
strength of the code of silence within a particular department or precinct.

ill. THE JUSTICE SYSTEM'S FAILURETO RESPOND TO POLICE PERJURY

In at least some cases, police perjury leads to erroneous acquittals,
erroneous convictions; and a general decrease in respect for law. Police,
prosecutors, courts, and other participants in the criminal justice system
might well be expected to make elimination of police perjury a top prior-
ity, as a matter of principle, for u~ilitarian re.asons, or both . .For a variety
of reasons, however, it has not worked out that way; no branch of gov-
ernrilent has proven effective in controlling perjury.

A. Retaliation Against Officers Who Violate The Blue Wall Of Silence

Cops don't tell on cops. And if they did tell on them, just say if a cop decided to
tell on me, his career's ruined. He's going to be labeled as a rat. So if he's got fif-
teen more years to go on the job, he's going to be miserable because it follows
you wherever you go.... [H]e's going to have nobody to work with. And chances

85. See id.; see also supra notes 80-82 and accompanying text discussing the operation_of ex-
cessive force perjury at trial.
1998] BLUE WALL OF SILENCE 257

are if it comes down to it, they're going to let him get hurt.86

In many police departments, the code of silence carries with it a

self-enforcement mechanism which ensures that officers will not break
the code: officers who violate this code may be subject to harsh reprisals.
Evidence that the code of silence exists in a particular department, with-
out more, does not necessarily indicate that police officers will lie when
an occasion to do so arises. Evidence of real and substantial retaliation in
a particular department, on the other hand, could reasonably give rise to
an inference that police witnesses subject to the code of silence may be
tempted to lie in court to protect fellow officers and their own status in
the department when truthful testimony might implicate a fellow cop. En-
forcement through retribution strengthens and perpetuates the code of si-
lence, intensifying the deterrent effect on officers who may be otherwise
willing to tell the truth.
The evidence of retaliation in many police departments is well docu-
mented. For example, the Mollen Commission reported several instances
of harassment and ostracism experienced by officers as a result of
breaching the code of silence. The classic retaliatory behavior by officers
within a department against a code violator is to label the perpetrator a
"rat" or a "snitch. " 87 This label may travel with the officer, even after
transfer to a new unit. 88 Various other forms of ostracism and harassment
by fellow officers typically accompany the label.89 The different forms
may emerge at various extremes. For example, one officer testifying
before the Mollen Commission indicated that officers who break the code
of silence are "held away," "pushed off to one side," and "kept away
from the rest of the group. " 90 Testimony presented to the Christopher

86. MOLLBN COMMISSION, supra note 5, at 53-54 (quoting the testimony of Bernard Cawley,
fonner New York City police officer).
87. See id. at 53-56; Knight & Weiser, supra note 18, at Bl; see also White-Ruiz v. City of
New York, No. 93-CIV.-7233 (DLC) (MHD), 1996 WL 603983, at *2 (S.D.N.Y. Oct. 22, 1996) (dis-
cussing label of "rat" and "cheeseater" for officer reporting theft of money by fellow officer from
body of deceased person at a crime scene).
88. See MoLLEN CoMMISSION, supra note 5, at 54-55 (quoting testimony of officer Kevin
Hembury).
89. See Knight & Weiser, supra note 18, at B1 (noting commendation by then D.C. police
chief Maurice Turner of officer for enduring ostracism and harassment from other members of de-
partment for reporting assault by a colleague upon a defenseless suspect).
90. MoLLEN CoMMISSION, supra note 5, at 54 (quoting testimony of Lieutenant Robert McK-
enna). An example of the powerful effect of this type of ostracism was detailed in the Mollen Com-
mission report. See id. at 55. A fonner police officer recruit who experienced sexual harassment by
an academy instructor reported the conduct to the Internal Affairs Division. See id. Despite assur-
ances to the recruit of confidentiality, Internal Affairs reported the complaint to the recruit's supervi-
258 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

Commission in Los Angeles exhibited more extreme ostracism: one of-

ficer indicated that he was forced out of the police department for cor-
roborating a suspect's report of being beaten in a holding cell; another
. officer indicated that breaking the code of silence "will mark the end of
[an officer's] career. " 91
The Mollen Commission reported . even more threatening examples
of retaliatory activity and harassment as a result of the code of silence.
In one instance, a police supervisor who disciplined his subordinates for
misconduct and reported acts of corruption had to be relocated thirty-
eight times. 92 According to the Mollen Commission, "[i]n almost every
case, on the very day [this police supervisor] arrived to report for duty at
his new command, he found evidence that his reputation had preceded
him. At one command, his locker was burned; at another, his car tires
were slashed; at another, he received threats of physical harm. " 93 In an-
other instance, a detective who served in the· Internal Affairs Division
was transferred to a precinct detective squad; in his frrst .week on the job,
his colleagues "placed dead rats on his car windshield, stole or destroyed
his personal property, and told him directly that he could not count on
them in times of danger."94
These threats evince the possible imposition of physical harm to an
officer as a result of breaking the silence.95 Indeed, a 1993 focus group

sors. See id.

Within days, she was ostracized by her fellow recruits (even those who had been her friends)
and Academy personnel. Her isolation was made so complete that ·she was forced to fmish
her.Academy training on her own. When she graduated, the Department assigned her to Inter-
nal Affairs because it was unlikely she would be accepted anywhere else in the Department.
Her dream to become a cop became a nightmare because she made a single complaint about
a fellow cop. Within a year, she resigned from the Department.
Id.; see also Cowles Publ'g Co. v. State Patrol, 748 P.2d 597, 599 (Wash. 1988) (en bane) (relating
testimony of police psychologist which indicated .that "stress, aggravation, and humiliation .[is] vis-
ited upon the families of officers who complained against colleagues").
91. CHRISTOPHER COMMISSION, supra note 15, at 170; see also Bradley v. Fisher, 688 A.2d
527, 529 (Md. Ct. Spec. App. 1997) (in action for wrongful discharge of police officers, officers al-
Jege they were frred for refusing to obey illegal orders and for reporting chief's activities to others);
Raab, supra note 8, at 6 (quoting an anonymous New York City cop: "If they mark you as a 'rat,'
you're fmished on the job.").
92. MOLLEN COMMISSION, supra note 5, at 54.
93. Id. .
94. Id. at 55.
95. See, e.g., White-Ruiz v. City of New York, No. 93-CIV.-7233 (DLC) (MHO), 1996 WL
603983, at *2 (S.D.N.Y. Oct. 22, 1996) (discussing allegations by police officer of fellow officers'
refusal to provide back-up in dangerous situation and interference with radio transmission requesting
such back-up); Domenech v. City of New York, 919 F. Supp. 702, 705 (S.D.N.Y.) (discussing allega-
tions by officer that fellow officers "told her that if she ever called in as an 'officer in trouble,' no-
1998] BLUE WALL OF SILENCE 259

body would respond"), on reargument, 927 F. Supp. 106 (S.D.N.Y. 1996); Raab, supra note 8, at 6
(quoting an anonymous New York City police officer: "If they mark you as a 'rat' ... no one talks
to you, .•. your family gets obscene calls and every day you have to wonder if someone is going to
be a little slow in backing you up in a life or death situation."). One commentator reported that
Cops traditionally don't tell on other cops. They fear retaliation, sometimes violence,
against themselves and their families if they say anything about a fellow officer. There's a
virtual certainty that they'll be ostracized by their colleagues and a real possibility that
needed police bacla.lp in a life-threatening situation might be slow to come.
Savagery at a Police Station as Vicious an Attack as Anyone Could Imagine, THE REcoRD (Northern
N.J.), Aug. 17, 1997, at 2. A vivid example of this extreme of the code of silence is evinced in
Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988) (Posner, J.). In Jones, an individual wrong-
fully charged with murder and other crimes brought claims against the city and several police of-
ficers for false arrest, false imprisonment, and conspiracy. See id. at 988. The case involved the rape
and murder of a 12-year-old girl and the beating of her 10-year-old brother. See id. The boy was
questioned by the police, and the police obtained equivocal evidence that the plaintiff was the perpe-
trator. See id. The plaintiff was arrested and placed in jail pending trial, as his family was unable to
afford bond. See id. at 989-90. A month later he was released after the court reduced the bond to a
level that the plaintiff's family could afford. See id. at 990~ '
Six days after the plaintiff was arrested, however, additional evidence came to the attention of
Detective Laverty of the Chicago Police Department, and he investigated. See id. Detective Laverty
was assigned to the case while the original two officers assigned were away. See id. Pursuant to the
investigation, Detective Laverty discovered that the police had arrested the wrong person, and he re-
layed this discovery to his superiors. See id. When the two officers originally assigned to the case
found out about Detective Laverty's discoveries, they became furious. See id. They confronted
Detective Laverty, "told him that he was messing up their case, and threatened to destroy his career
if he continued to 'interfere.' " Id. Detective Laverty mdicated to the officers that if the case went to
trial he might testify for the plaintiff. See id. at 990-91. One of the officers "threatened to 'blow him
away' if he did." /d. at 991.
Detective 'Laverty received no cooperation from his superior officer upon revealing .the problem
to him. See id. at 990-91. Moreover, Detective Laverty's superior pretended to take appropriate steps
to remedy the problem, when in fact be did nothing, and even conspired with the other officers to
conceal his inaction. See id. at 993. Ultimately, Detective Laverty discovered that the case was in
fact set for trial, and relayed the exculpatory information to the plaintiff's lawyer. See id. at 991. The
court declared a mistrial, and all charges against the plaintiff were dropped. See id.
Subsequently, Detective Laverty experienced retaliation for his actions. See id. The police de-
partment charged him in disciplinary proceedings with failing to inform the state's attorney of his
plan to testify for the plaintiff at the trial. See id. Moreover, the department transferred him from the
detective division "to a series of menial tasks culminating in the monitoring of police recruits giving
urine samples." /d.
The actions by fellow officers and superiors against Detective Laverty iUustrate the potential
repercussions of violating the code of silence, particularly the threat of murder by Laverty's fellow
officers. Some commentators recognize this form of the code's severity, and even equate it to the
Mafia's code of silence known as "omerta." See, e.g., New York Case Spotlights Police Officer
'Code of Silence,' USA ToDAY, Aug. 19, 1997, at 12A (asserting that "[t]raditional police silence to
protect their own is equated to the Mafia cOde of silence"); Raab, supra note 8, at 6 (quoting Min-
neapolis Police Chief Anthony Bouza: " 'In New York, . • . the police code of silence is stronger
than the mafia's code of omerta.' "). According to the Mafia's loyalty oath, "[d]eath is assured for
the person who is or is suspected of becoming a rat.'' United States v. Gotti, 171 F.R.D. 19, 52
(E.D.N.Y. 1997); see also Jankiewicz, supra note 72, at 222 ("'The foundation of the Mob was
based on the idea that if a member spoke to the police, the press, or even other associates about his
criminal dealings, he would sleep with the fishes.'") (quotlng T.J. English, lA Cosa Nostra Takes
260 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

study conducted by the Internal Affairs Bureau of the New York Police
Department reported that all uniformed levels of the force feared life-
threatening retaliation for defying the code:

[L]arge majorities of the police officers interviewed said that they would not report
the corrupt acts of fellow officers to Internal Affairs, even anonymously, [because]
... [b]eing labeled a "rat.. may incur the ultimate price: loss of one•s life in a
conflict with criminal suspects because other officers would be reluctant to respond
in support.96 ·

The possibility of direct, physical danger to officers who breach the

code of silence was recognized and acted upon by officials in New York
in August of · 1997, in the wake of the 70th Precinct Brooklyn torture
case.97 In that incident, in what has been deemed by some as "an act of
almost incomprehensible depravity[,]" 98 a Haitian immigrant was alleg-
edly beaten and sodomized with a wooden stick inside the 70th Precinct
station house.99 In a response more reminiscent of cases involving mafia
informants than police officers, the city placed the officers who came
forward, and their families, under armed guard to protect against retalia-
tion by fellow officers. 100

the Big Hit, PLAYBOY, Sept. 1992, at 91)). Jerome Skolnick and James Fyfe argue, however, that
"the police code of silence is not a mafia-style life-or-death pact with the devil[.]" SKOLNICK &
FYFE, supra note 15, at 110. Rather, Skolnick and Fyfe recognize that the code "typically is en-
forced by the threat of shunning, by fear that informing will lead to exposure of one•s own derelic-
tions, and by fear that colleagues• assistance may be withheld in emergencies... Id. In contrast to this
position, the Brooklyn 70th Precinct torture case seems to support the notion that police who break
the code should fear that they have placed themselves in physical danger, possibly life-threatening
danger. See supra notes 24-27 and accompanying text. In that instance, the two officers who broke
the code of silence- to report the misconduct of their colleagues, along with their families, had to be
placed in protective custody. See infra notes 97-100 and accompanying text.
96. PouCB STRATEGY No.7, supra note 15, at 20-21.
97. See supra notes 24-27 and accompanying text.
98. 2 More Arrested in N.Y. Police Brutality Case, supra note SO, at A19.
99. See id.
100. See Barry, 2d Police Officer Charged in Anack on A"ested Man, supra note 24, § 1, at
1; Bone, supra note 27, at 11; Brutality in the Precinct; N.Y.P.D.'s Reputation Soiled by the Code of
Silence, suprg note 27, at AS; Cooper, supra note 15, at B3; John Kifner, Charges of Brutality: The
Overview; Thousands March to Protest Police, N.Y. TIMES, Aug. 17, 1997, at § 1, at 1; Paul
Schwartzman, 2d Cop Held in Torture Case, DAILY NEws (New York), Aug. 16, 1997, at 3; Frank
Serpico, Sening the Tone for Police Reform, N.Y. TIMBs, Aug. 30, 1997, § 1, at 23; see also Lewis,
supra note 18, at Ll3 (quoting interview with a Manhattan police officer: "When we•re out there
late at night, we only have each other.... When a problem arises, he•d only have to tum his back. I
might get bloWn away. Trust me, it•s happened ... ); News Forum, supra note 25 (commenting that
Officer Boria, a witness at the trial of a New York offieer who applied a fatal chokehold to a sus-
pect, had to be protected from potential harm after testifying that the suspect was not struggling, but
lying motionless when the hold was applied).
1998] BLUE WALL OF Sll...ENCE 261

Rank and file officers are not the only enforcers of the code. Har-
assment may even .come from the upper ranks of the department in the
form of improper reprimands, 101 inappropriate negative performance eval-
uations, 102 or retaliatory assignment changes and inappropriate post
assignments. 103
In short, in departments with a code of silence enforced through re-
taliation, officers could reasonably fear that breaking the code would
mean that ostracism, harassment, or worse would be a routine part of
their working life. Thus, in order to avoid retaliation, corrupt and honest
officers alike may be tempted to lie on the witness stand, falsify docu-
ments, lie to the media and the public, and generally cover-up any and
all acts or events occurring under the blue shroud which may foment the
wrath of the code of silence. For these reasons, police officers are un-
likely to end perjury on their own.

B. Prosecutorial Hesitation to Address Police Perjury

Police criminality, including police perjury, even where guilt is
clear, has not traditionally been dealt with aggressively by prosecutors. 104
The Mollen Commission, for example, noted that "several former and
current prosecutors acknowledged-'off the record'-that perjury and fal-
sifications are serious problems in law enforcement that, though not con-
doned, are ignored." 105 There are a number of reasons for prosecutorial
disinterest. First, it is very difficult to convict a police officer for acts
committed in the line of duty. 106 In a "swearing match" between a police

101. See Knight & Weiser, supra note 18, at B1 (noting that $500 rme for operating vegetable
stand in spare time was allegedly part of continuing harassment by police department of officer who
broke the code of silence).
102. See Domenech v. City of New York, 919 F. Supp. 702, 705 (S.D.N.Y.), on reargument,
927 F. Supp. 106 (S.D.N.Y. 1996).
103. See White-Ruiz v. City of New York, No. 93-CIV.-7233 (DLC) (MHD), 1996 WL
603983, at *2 (S.D.N.Y. Oct. 22, 1996); Ariza v. City of New York, No. CV-93-5287, 1996 WL
118535, at *2 (E.D.N.Y. Mar. 7, 1996).
104. See Cloud, supra note 13, at 1313; id. at n.12 (collecting cases); Rudovsky, supra note
15, at 488; Young, supra note 13, at 465; see also Mark Curriden, The Lies Have It, A.B.A. J., May
1995, at 68, 71 (asserting that "[t]he pattern that actually may be developing is that hardly anyone-
defendants, police, plaintiffs or witnesses-is getting caught or prosecuted for perjury"); cf. Dersho-
witz, Some Cops Go Bad, supra note 18, at 34A ("A few prosecutors have now begun to actually
prosecute policemen who lie in criminal cases. But these cases are few and far between."). Prosecu-
tors have been reluctant to bring charges against the police for other types of misconduct as well.
See Freeman, supra note 17, at 724 (police brutality); Myers, supra note 17, at 505 (use of deadly
force).
105. MOll.BN COMMISSION, supra note 5, at 42.
106. See Uvn..LBR, supra note 13, at 158 ("The prosecutor can do little ... about police bru-
262 UNIVERSITY OF PITI'SBURGH LAW REVIEW [Vol. 59:233

officer and "an individual who may have committed a crime, judges and
juries will usually side with .the officer. 107 Even where there is no evi-
dence of defendant misconduct, such as in excessive force prosecutions
against police, judges and juries may often retain pro-police biases. 108
Prosecutors may well be unable to rely on police witnesses, even if those
officers were not participants in the alleged crime, because of the
strength of the code of silence. 109
Moreover, odd things seem to happen during prosecutions of police
officers. In what probably remains the largest police corruption prosecu-

tality or perjury."). A 1996 article in the Los Angeles Times reported that "often ... prosecutors de-
cide not to file perjury cases because they are simply too difficult to win." Newton & Simon, supra
note 2, at AI. The article indicated that:
Los Angeles County prosecutors decided against charging LAPD [Detective] Andrew A.
Teague with perjury last fall even though they believed he falsified evidence in a murder case
and then lied about it under oath. Similarly, prosecutors in Ventura County decided not to
charge fonner LAPD Officer Theodore J. Briseno with perjury, though they concluded .that he
probably lied under oath during the Simi Valley trial of officers charged in the beating of
Rodney G. King. Proving it beyond a reasonable doubt, they said .at the time, would be "ex-
ceedingly difficult"
ld.; see also Harris, supra note 32, at 1774 (asserting that prosecutors will often not pursue perjury
charges because of difficulty of prevailing due to lack of physical evidence and evidentiary burdens).
107. See, e.g., MOLLEN CoMMISSION, supra note s; at 42; Cloud, supra note 13, at .1322-23;
Dripps, supra note 12, at 696; Patton, supra note 15, at 754, 758; see also Freeman, supra note 17,
at 724-25 (asserting that police brutality is extraordinarily difficult to prove because of officers' in-
herent credibility with juries); Harris, supra note 32, at 1771 (indicating that there is an increasing
attitude among judges and lawyers of acceptance of and toleration for perjury). Professor Robin
Magee, for one, challenges what she tenns "the good cop paradigm"; the idea that the average po-
lice officer should be regarded , "as a law-abiding citizen who is chiefly, if not totally, motivated by
law enforcement interests when appropriate and who can be trusted to behave within constitutional
parameters." Magee, supra note 15, at 160-61 (footnotes omitted). Magee argues that the paradigm
is revealed through Supreme Court "blindness to bad cops in cases raising issues of pretext," and
through the Court's deference to police judgment and allowance ofdiscretionary authority. Id. atl61;
see also Sexton, supra note 51, at B3 (reporting that interviews of several dozen prospective jurors
in Brooklyn, Queens, and Manhattan revealed that very few people would begin their jury service
with the assumption that police were going to be truthful; the reason for the distrust was attributed to
police corruption).
108. See Montiel v. City of Los Angeles, 2 F.3d 335, 343-44 (9th Cir. 1993) (verdict for de-
fendants on excessive force actions reversed and remanded in part due to improper statements by
judge indicating pro-police bias); Osborne v. City of Long Beach, 865 F.2d 264, 1988 WL 14391, at
*5 (9th Cir. Dec. 20, 1988) (noting that in ,a civil rights case against police officers, jurors can be
expected to have natural bias in favor of defendants and against plaintiff); Cloud, supra note 13, at
1322-23 (noting that because police are often experienced witnesses, some judges may "believe that
most defendants in the criminal justice system are guilty," and "participants in the criminal justice
system may assume that as a class criminal defendant~ will cominit perjury"); Patton, supra note 15,
at 765 (positing that "juries almost always believe the police"); id. at 765-66 (asserting that plain-
tiff's attorney in excessive force case must overcome tremendous psychological impediments to con-
vincing a jury that the police committed wrongdoing).
109. See Young, supra note 13, at 465.
1998] BLUE WALL OF SILENCE 263

tion of the century, bookmaker Harry Gross was to be the star witness in
a trial of scores of officers accused of accepting protection money from
gamblers. 110 Gross, who was cooperating with prosecutors and under po-
lice guard, mysteriously disappeared for twenty-four hours before trial. 111
He took the stand, gave his name, and refused to testify further; " [o]nly
a clever legal tactician could have instructed him to stop when he
did." 112 Because he was the key witness, several officers .had to be re-
leased and could not be reprosecuted because of the double jeopardy bar.
With a history of cases like this, it is hard not to be sympathetic to pros-
ecutors who believe they cannot win cases with police defendants.
Prosecutors may be reluctant to prosecute police officers for other
reasons. Most state prosecutors have relatively small investigative staffs;
they depend on the police departments to investigate and prove their
cases. Accordingly, a prosecutor sensitive to· the need to maintain a good
working relationship with the police department, and realizing that she
cannot succeed in her job without police assistance, might reasonably
hesitate to prosecute a police officer for a crime that would put a private
citizen behind bars. 113 In addition, prosecutors sometimes suggest that it
is the jury's job, not that of the prosecutor's office, to assess the credibil-
ity of witnesses and determine whether the witness is telling the truth. 114
While a prosecutor may not "knowingly offer false evidence," 115 there is
no ethical prohibition on introducing testimony the prosecutor frrmly be.:.
lieves, but does not actually know is perjured. Finally, it is possible that
some prosecutors may actually approve of police perjury, at least when it
leads to the "correct" result. 116 City officials117 and police executives118

110. See li.ELPAND REPoRT, supra note 41, at 46.

111. See id. at 46-47.
112. Id. at 47.
113. See 1 CIDN, supra note 5, at xxxv-xxxvi; KNAPP COMMISSION, supra note 19, at 255-56
(noting fact that prosecutors must rely on police investigators both in ordinary prosecutions and to
uncover police corruption).
114. See Harris, supra note 32, at 1171.
115. ABA STANDARDS RELATING TO THB ADMINISTRATION OP CRIMINAL JUSTICE, Standard 3-
5.6(a) (1978).
116. See Ricker, supra note 12, at 46 ("Prosecutors shrug when police officers offer less than
credible testimony; judges sigh and tum their heads.").
117. In many cities, police departments and police unions are independent and powerful politi-
cal entities. At the same time, citizens demand that the police be kept, or at least appear to be kept,
under fmn control. "When I go to bed at night," said former New York Mayor Robert F. Wagner,
Jr., "I say a special prayer for the safety of the city. Then I say a special prayer of thanks that noth-
ing bad happened in the police department" GEORGB AsToR, Tim NBW YORK COPS: AN INFoRMAL
HISTORY 5 (1971). Mayor Wagner may have recognized that police s~dal represented political dis-
aster; none of the mayors sitting when police scandals leading to the appointment of police investi-
264 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

have likewise not always proved to be aggressive in dealing with police

perjury.

C. Judicial Responses to Police Perjury

Courts are understandably reluctant to place police witnesses in the
same disfavored class as accomplices, drug addicts, or perjurers when it
comes to weighing credibility. 119 Courts have consistently rejected de-
fense requests for both instructions that require the court to inform the
jury that "in weighing the testimony of police officers, greater care
should be exercised than in weighing the testimony of .other witnesses,
because of their material bias [and] prejudice," 120 and instructions that in-
dicate in some way that the testimony should be "scrutinized with espe-
cial caution." 121 What is more surprising is that even in cases where

galion commissions were reelected. See 1 CmN, supra note 5, at xxxii.

118. For example, when New York City police officers were discovered to have engaged in
systematic perjury, "some ranking commanders argued that officers should not be prosecuted. Police
tradition, they said, allowed otherwise honest officers to occasionally 'shade' their testimony by
changing details of arrests to confonn with search and seizure laws . ., Kocieniewski, supra note 4,
§ 1, at Al.
119. Language requiring a jury to view testimony with suspicion, sometimes called a "cau-
tionary tail,., commonly appears in jury instructions regarding the credibility of informants, immu-
nized witnesses, accomplices, and convicted perjurers. See 1 EDWARD J. Davrrr BT AL., FJmBRAL
JURY PRAcnCB AND INSTRUCI'IONS §§ 15.02-15.04, 15.10 (4th ed. 1992); see also 1 LEONARD B.
SAND BT AL, MODERN FBDBRAL JURY lNSTRUCfiONS, CRIMINAL 'f7.01(1], at 7-10 (1996) (hereinafter
SAND BT AL., CRIMINAL] (discussing evaluation of the credibility of a witness with interest in out-
come); 1 id. C)( 7.01[1], at 7-27 (discussing evaluation of the credibility of an unindicted co-
conspirator); 1 id. CJ( 7.01[1], at 7-33 ("informally immunized witness.,); 1 id. C)( 7.0l[1], at 7-37
("witness using or addicted to drugs.,); 1 id. Cft 7.0i[3], at 7-61 ("government informers.,); 4 LBO-
NARD B. SAND BT AL., MODERN FlmBRAL JURY INSTRUCfiONS, CIVIL <J: 76.01(1], at 76-12 (1997) [here-
inafter SAND BT AL., Clvn.] ("witness with interest in outcome.,); 1 id. CJ 76.01 [1], at 76-23 (discuss-
ing evaluation of the credibility of a witness who has previously committed perjury). But see CoMM.
ON MODBL CRIMINAL JURY lNSTRUCfiONS WITHIN THB EIGHTH CIRCUIT, MANUAL OF MODBL CRIMINAL
JURY INSTRUCfiONS FOR THB DISTRICI' COURTS OF THB EIGHTH CIRCUIT § ·4.04 cmt., at 97 (1996)
(hereinafter MODBL CRIMINAL JURY lNSTRUCfiONS FOR THB EIGIITH CIRCUIT] (indicating that the
Eighth Circuit "has criticized the use of a 'cautionary tail' as an unwarranted intrusion into the
jury's functions, .. and recommending against its use).
120. Lovings v. State, 62 N.W.2d 672, 676 (Neb. 1954).
121. People v. McMurty, 314 N.Y.S.2d 194, 197 (Crim. Ct. 1970); see, e.g., United States v.
Arthur, 822 F.2d 60, 1987 WL 37871, at *3 (6th Cir. June 30, 1987) (per curiam); United States v.
Ovimette, 798 F.2d 47, 49 (2d Cir. 1986); Bush v. United States, 375 F.2d 602, 604 (D.C. Cir.
1967); United States v. Paccione, 224 F.2d 801, 803 (2d Cir. 1955); Lovings, 62 N.W.2d at 676; see
also Golliher v. United States, 362 F.2d 594, 604 (8th Cir. 1966) (decision to submit cautionary jury
instruction regarding police testimony is within discretion of trial judge; no error where judge fails to
so instruct); Hronek v. People, 24 N.E. 861, 863 (lll. 1890) (instruction that evidence of police
"should be received with a large degree of caution., was incorrect proposition of law); People v.
Burgos, 614 N.E.2d 59, 66 (III. App. Ct. 1993) (holding that refusal to g~ve non-Illinois pattern jury
1998] BLUE WALL OF SILENCE 265

there is reason to be suspicious of particularly troubling sub-categories of

police testimony, courts still hesitate to act.

1. Bush v. United States 122

The starting point .in analyzing the treatment of police testimony by
courts is then-Judge Warren Burger's oft-quoted statement in Bush v.
United States: "[I]t would be a dismal reflection on society to say that
when the guardians of its security are called to testify in court under
oath, their testimony must be viewed with suspicion.'' 123
The defendants in Bush were convicted of possession and transfer-
ring narcotics. 124 They argued on appeal that the court "should adopt a
rule that the jury must be instructed that the uncorroborated testimony of
a police narcotics officer must be viewed with suspicion and acted upon
with caution." 125 Narcotics officers are, of course, subject to special
temptations and pressures of various kinds. The court noted. that although
some types of witnesses should be subject to a cautionary instruction,
such as accomplices and informants, 126 it would be "anomalous" to in-

instruction tendered by defendant that police testimony should be judged in same manner as other
witnesses is within sound discretion of trial judge where an lllinois pattern jury instruction ade-
quately addresses the issue); State v. Braathen. 43 N.W.2d 202, 216 (N.D. 1950) (where testimony of
police officer discloses no prejudice or bias, no error to refuse to grant cautionary jury instruction);
State v. Hamrick, 236 S.E.2d 247, 249 (W. Va. ·t977) (asserting that "[t]he reverse of the Bush pro-
position is also true; police officers' testimony is not accorded greater weight than other witnesses'
evidence"); cf United States v. Reid, 410 F.2d 1223, 1227-28 (7th Cir. 1969) (prejudicial error
where jury insttUcted on defendant's possible interest, prejudice, or bias, without being instructed
that government witnesses not entitled to special credibility).
. 122. 375 F.2d 602 (D.C. Cir. 1967).
123. Id. at 604.
· 124. See ld. at 603-04.
125. /d. at 604.
126. See, e.g., Hoffa v. United States, 385 U.S. 293, 312, n.13-14 (1966) (approving caution-
ary "interested· witness" instruction); United States v. Lord, 907 F.2d 1028, 1029-1031 (lOth Cir.
1990) (immunized witness); United States v. Olmstead, 832 F.2d 642, 646 (1st Cir. 1987) (accom-
plice); United States v. Cresta, 825 F.2d 538, 546 (1st Cir. 1987) (informant); United States v.
Bernal, 814 F.2d 175, 183-85 (5th Cir. 1987) (accomplice); United States v. Bowman, 798 F.2d 333,
335-36 (8th Cir. 1986) (immunized witness); United States v. Beard, 761 F.2d 1477, 1481 (11th Cir.
1985) (infonnant); United States v. D'Antignac, 628 F.2d 428, 435-36 n.lO (5th Cir. 1980) (inform-
ant); United States v. Bernard, 625 F.2d 854, 857 (9th Cir. 1980) (accomplice); People v. Hovey, 749
P.2d 776, 787-88 (Cal. 1988) (distinguishing informant testimony and accomplice testimony); People
v. Jackson, 495 N.E.2d 1207, 1221 (lll. App. Ct 1986) (accomplice); People v. Reed, 556 N.W.2d
858, 862 (Mich. 1996) (accomplice); People v. McCoy, 220 N.W.2d 456, 460 (Mich. 1974) (accom-
plice); Edwards v. State, 630 So. 2d 343, 344 (Miss. 1994) (accomplice); State v. Gambrel, 894 P.2d
235, 237-38 (Kan. Ct. App. 1995) (infonnant); People v. Green, 565 N.Y.S.2d 946, 947-48 (App.
Div. 1991) (accomplice); see also United States v. Jacobs, 475 F.2d 270, 286 n.33 (2d Cir. 1973) (af-
fidavits of co-defendant in aid of motion for new trial viewed with great caution); United States v.
266 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

elude police officers within that category. 127 The court indicated that such
an instruction "would be tantamount to saying that police officers are .in-
herently untrustworthy," something that the court was unwilling to do. 128
The court ruled that the traditional safeguards underlying the legal sys-
tem serve to adequately protect the parties- · namely, " 'the veracity of a
witness to be tested by cross-examination, and the credibility of his testi-
mony to be determined by a properly instructed jury.' " 129

Gotti, 171 F.R.D. 19, 47-48 (E.D.N.Y. 1997) (affidavits prepared by mob boss in support of motion
for new trial, based on allegations that mafia informant committed perjury and government improp-
erly vouched for informant, should be viewed with great caution). But see People v. Hunter, 782 P.2d
608, 618-19 (Cal. 1989) (en bane) (cautionary instruction as to testimony of immunized witnesses
unnecessary where general instruction on credibility given with modified instruction directing jury to
consider witness's grant of immunity); State v. Draughn, 602 N.E.2d 790, 796-97 (Ohio Ct. App.
1992) (no entitlement to addict-informant instruction where jury already aware informant a narcotics
addict paid by police); State v. Simson, 775 P.2d 837, 839 (Or. 1989) (en bane) (cautionary jury in-
struction regarding accomplice testimony should only be given where testimony implicates defend-
ant); State v. Parsons, 342 N.W.2d 21, 22-23 (S.D. 1984) (although cautionary instruction must be
given when accomplice and informants have testified, no cautionary instruction necessary for testi-
mony of immunized witnesses); cf. United States v. Solomon, 856 F.2d 1572, 1577-79 (11th Cir.
1988) (omission of jury instruction to effect thattestimony of admitted drug addict and accomplice
given immunity under plea bargain agreement should be viewed with suspicion not plain error be-
cause general instruction on credibility given along with other general instructions regarding credibil-
ity of convicted felon); Commonwealth v. Brousseau, 659 N.E.2d 724, 728 (Mass. 1996) (holding
that failure of court to give sua sponte cautionary instruction specifically mentioning credibility of
witnesses testifying under plea bargain or grant Of immunity did not raise substantial likelihood of
miscarriage of justice). See generally 1 DEvrrr ET AL., supra note 119, § 15.02 (informant); 1 id.
§ 15.03 (immunized witness); 1 id. § 15.04 (accomplice); 1 id. § 15.05 (drug/alcohol abuser); 1 id.
§ 15.10 (perjurer).
127. See Bush, 315 F.2d at 604.
128. ld.; see also, e.g., Lovings v. State; 62 N.W.2d 672, 676 (Neb. 1954) ("'The mere fact
that witnesses in a criminal prosecution are regular police officers of a city will not justify an in-
struction that the jury, in weighing their testimony, should exercise greater care than in weighing the
testimony of other witnesses.'") (quoting Fisher v. State, 47 N.W.2d 349 (Neb. 1951)); State v. Wil-
liams, 430 S.E.2d 888, 895 (N.C. 1993) (finding that the defendant was not entitled to jury instruc-
tion stating that police are no more credible than ordinary witnesses; general instruction concerning
witness credibility sufficient).
129. Bush, 315 F.2d at 604 (quoting Hoffa, 385 U.S. at 311). The court indicated that an in-
struction given to the jury by the trial court to ~'consider bias, prejudice, and any interest in the out-
come of the case which a witness might have, and to give an officer's testimony no weight different
from that given any other witness simply because he was an officer" was fair and proper. /d. at 605
n.6. But see United States v. Reid, 410 F.2d 1223, 1227-28 (7th Cir. 1969). In Reid, the United
States Court of Appeals for the Seventh Circuit determined that the trial court .committed prejudicial
error by instructing the jury to consider possible bias, prejudice, and interest of the defendant witness
(charged with assaulting a prison guard) without instructing the jury that police witnesses were enti-
tled to no special credibility simply because of their status. See id. The court also noted that the
Uiuted States Court of Appeals for the District of Columbia Circuit, in Bush, properly rejected argu-
ments that mandatory cautionary instructions should attach to police witness testimony. See id. at
1227.
1998] BLUE WALL. OF SILENCE 267

2. People v. McMurty 130

Some courts have adhered to Bush's view of police testimony, while

others have not. Not surprisingly, the New York courts have had several
opportunities to address the issue, specifically in the context of police
testimony in "dropsy" cases. Because it is implausible that ·a criminal
would do something incriminating upon seeing the police, some com-
mentators have suggested that dropsy testimony is particularly dubious:

[t]he self-interest of an officer who has been guilty of an illegal search and seizure
would dictate the commission of perjury to justify his actions, and it is ordinarily
very difficult for the defendant to disprove the officer's account of the arrest.
When the s~tistical evidence of police perjury is also considered, it is apparent
that the reasons for scrutinizing police testimony are at least as compelling as those
for scrutinizing the testimony of an accomplice, a private detective, or a paid
informer. 131

The frrst noteworthy New York case to analyze the problem was People
v. McMurty. In McMurty, Judge Irving-Younger recognized the increasing
problem of dropsy testimony in response to the Supreme Court's decision
in Mapp v. Ohio 132 which applied the exclusionary rule to the states. 133
Noting that courts are "ill equipped to persuade the police to change
their practices or alter their philosophy" with _regard to dropsy testimony
(as that is the job of the prosecutor's office), the court determined that
" 'dropsy' testimony should be scrutinized with especial caution." 134 The
underpinnings for determining that a witness's testimony should be sub-
ject to scrutiny "is the belief that the testimony . . . is so likely to be
self-serving or biased that the jury should not accept it at its face value,

130. 314 N.Y.S.2d 194 (Crim. Ct 1970).

131. Comment, supra note 12, at 520 (footnotes omitted). The authors of the Georgetown Law
Journal Comment examining police perjury in dropsy cases proposed alternative solutions to the
problem of police perjury, including combining scrutiny of the officer's testimony with a corrobora-
tion rule or a quantitative evidence rule. See id. at 520-21. As recognized by the authors, corrobora-
tion "would require support of an assertion of lawful conduct,". and the quantitative evidence rule
would require ..direct testimony of a second witness," thus .. necessitat[ing] employment of police
teams for all narcotics arrests." Id. at 521. But the mere fact that more than one officer is present
does not guarantee the elimination of police perjury. See id. at 522. This is so because of the code of
silence.
132. 367 u.s. 643 (1961).
133. See McMurty, 314 N.Y.S.2d at 196-97. See supra note 46 and accompanying text (dis-
cussing the exclusionary rule pursuant to Mapp and its relation to dropsy testimony), and supra notes
48-49 and accompanying text (Judge Younger's quotation summarizing the problem of dropsy
testimony).
134. McMurty, 314 N.Y.S.2d at 197.
 268 UNIVERSITY OF PIITSBURGH LAW REVIEW [Vol. 59:233

· even where the . witness has not otherwise been impeached." 135 Clearly,
this directive cuts against the grain of then-Judge Burger's "dismal re-
flection" concem. 136 The justification for McMurty's abandonment of the
position established in Bush was expressed by Judge Younger as follows:
''When there are grounds for believing that 'the guardians of its security'
sometimes give deliberately false testimony, it is no 'dismal reflection on
society' for judges to acknowledge what all can see. " 137
As a natural outgrowth of the notion that police testimony should be
scrutinized, Judge Younger concluded that where an officer's testimony
appears inherently unbelievable, it must be rejected. 138 In addition, if
even ·the slightest independent contradiction of the officer's testimony
should become apparent, or if corroboration of the defendant's testimony
arises, the evidence should be suppressed. 139 The court noted that the of-
ficer's testimony in the case did not appear inherently untruthful, nor was
there contradiction or corroboration of either witness's testimony. 140
Therefore, the deciding factor, according to Judge Younger, was to deter-
mine whether the burden of proof had been met. 141 Judge Yoqnger ulti-
mately denied the defendant's motion to suppress, noting that the burden
of .proof traditionally has been placed upon the . defendant. 142 Where the
testimony was evenly balanced on both sides, as it was in McMurty, the
prosecution must prevail. 143

3. People v. Berrios 144

Judge Younger~s candid approach was quickly rejected by higher
courts. About nine months after McMurty was decided, the New York

135. Comment, supra note 12, at 519-20.

136. See supra text accompanying note 123.
137. McMurty, 314 N.Y.S.2d at 197~ accord United States ex rel. Petillo v. New Jersey, 400 F.
Supp. 1152, 1180 (D.N.J. 1975), vacated and remanded sub nom. Albanese v. Yeag~r. 541 F.2d 275
(3d Cir. 1976). The court in ex rel. Petillo recognized that
Every experience<f litigator and jurist knows that witnesses are not always truthful, and
that sometimes a judgntent will be improvidently granted based on a misplaced belief in the
integrity of the evidence adduced. No system of justice worthy of the name, however, could
willingly countenance the continued validity of such process once the falsity of its underpin-
ning has been conclusively and timely demonstrated.
ld. .
138. See McMurty, 314 N.Y.S.2d at 197.
139. See id. at 198.
140. See id.
141. See id. .
· 142. See id. (citing People v. Baldwin, 250 N.E.2d 62, 63 (N.Y. 1969)).
143. See McMurty, 314 N.Y.S.2d at 198.
144. 270 N.E.2d 709 (N.Y. 1971).
1998] BLUE WALL OF Sll..ENCE 269

Court of Appeals decided People v. Berrios. In Berrios, the court had to

determin~ whether to depart from the traditional approach, as recognized
in McMurty, by shifting the burden of proof in a suppression hearing to
the prosecution in dropsy-type situations because of the possibility of
perjury. 145 Even though legendary Manhattan District Attorney Frank Ho-
gan agreed with the defendants on this point, the court declined to do
so. 146 The court noted that, although under the existing scheme the
defendant had the burden of demonstrating the illegality of the search
and seizure, the prosecution had " 'the burden of going forward to show
the legality of the police conduct in the first instance.' " 147 That is, ac-
cording to the court, the prosecution was required to demonstrate that the
search and seizure was reasonable-that it was made pursuant to a valid
warrant, on consent, incident to a lawful arrest, or that there was no
search because the defendant dropped the evidence. 148
Quoting then-Judge Burger's opinion in Bush, the court refused to
"infer that the police are systematically evading the mandate of Mapp by
fabricating their testimony," 149 and rejected a "frontal attack on the in-
tegrity of our entire law enforcement system.'' 150 The court indicated that
since there is no proof that all police commit perjury, the police should
not be singled out as suspect. 151
Professor Joseph Grano correctly underscored the significance of
Berrios: First, "it places New York among the minority of jurisdictions
that require the defendant to bear the ultimate burden of proof in
nonwarrant cases"; second~ and more importantly, "it indicates a reluc-
tance to create an exception for certain types of cases that present an es-
pecially strong possibility of police perjury." 152 Thus, even though the
court was interpreting a rule which was already pro-prosecution, even
though there was good reason to doubt much of the particular category
of testimony at issue, and even though a respected district attorney took
the extremely unusual step of adopting the defense position, the court re-
fused to impose even a limited additional degree of scrutiny on police
testimony.

145. See id. at 712. Those advocating a change· in the burden of proof were five defendants in
five separate and unrelated cases, decided together on the issue. See id. at 711-12.
146. See id. at 712-13.
147. /d. (quoting People v. Whitehurst, 254 N.E.2d 905, 906 (N.Y. 1969)).
148. See Berrios, 270 N.E.2d at 713.
149. Id.
150. /d.
151. See id.
152. Grano, supra note 13, at 452.
 270 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

4. Maynard v. Sayles 153

Courts in jurisdictions other than New York have addressed the
problem of police perjury as well. Notably, in Maynard v. Sayles, a civil
rights action against Kansas City police officers alleging excessive use of
force, the United States Court of Appeals for the Eighth Circuit ad-
dressed the admissibility of code of silence evidence. 154 The plaintiff
wanted to impeach police witnesses through testimony of a former Kan-
sas City police officer that a code of silence existed within the Kansas
City police department. 155 The district court excluded the evidence and
dismissed the action. 156 A panel of the Eighth Circuit reversed and re-
manded the case for a new trial, holding that it was reversible error to
exclude the testimony. 157 Interestingly, the Eighth Circuit granted rehear-
ing en bane, vacating the panel decision; because the en bane court was .
equally divided, the district court's decision was affirmed without opin-
.ion~ 158 The .approach by the panel in its vacated decision, however, is
illustrative.
Like the cases addressing the issue in the context of dropsy testi-
. mony, the defendant in Maynard asserted that because of the code of si-
lence, the officers' testimony justifying the beating of the plaintiff was
inherently suspect. 159 At trial, the plaintiff attempted to introduce the tes-
timony of a former Kansas City police officer as evidence of the code of
silence in order to undermine the police witnesses' credibility. 160 During
an offer of proof, the former officer testified that "where a fellow officer
has used excessive force in arresting a criminal suspect, the witnessing
officers will not discuss the incident except to corroborate the fellow of-
ficer's version of the arrest." 161
The panel addressed the evidentiary issue concerning whether to ad-
mit the testimony under Rules 406 (evidence as habit or routine practice)
and' 403 (whether prejudice outweighs probative value) of the Federal

153. 817 F.2d 50 (8th Cir.), vacated en bane, 831 F.2d 173 (8th Cir. 1987). Thanks to Sam
Stonefield for mentioning this case to us.
154. See Maynard, 817 F.2d at 51-52.
155. See id. at 52.
156. See id.
157. See id. at 53.
158. See Maynard v. Sayles, 831 . F.2d 173 (8th Cir. 1987). Judge Bright of the United States
Court of Appeals for the Eighth Circuit dissented for the reasons expressed in the panel opinion. See
id. at 174. Chief Judge Lay and Judges Heaney, McMillian, and Arnold joined the dissent. See id.
159. See Maynard, 817 F.2d at 52.
160. See id.
161. /d.
1998] BLUE WALL OF SILENCE 271

Rules of Evidence. 162 · The panel found that the testimony had sufficient
foundation to be admitted as evidence of routine practice under Rule 406
even though the plaintiff could produce only one witness to ·testify about
the existence of the code of silence. 163 The panel noted that the nature of
the code of silence makes it unlikely that other officers would testify re-
garding its existence, thus rendering access to additional evidence nearly
impossible. 164 The panel also clarified that the testimony was admissible
only for the purpose of casting doubt upon the credibility of the officers'
story that the plaintiff resisted arrest, and not for proving that the Kansas
City police officers followed a routine practice of using excessive
force. 165 Thus, because the plaintiff's case rested in part on discrediting
the testimony of the police witnesses, the panel determined that it was
reversible error to exclude testimony regarding the code of silence. 166
The opinion of the three-judge panel of the Eighth Circuit in May-
nard, as well as Judge Younger's opinion in McMurty, reflect attempts by
courts to modify the narrow and deferential approach to police testimony
established by Bush and its progeny. Both opinions, however, failed to
achieve their intended goals, as Maynard was vacated (without opin-
ion)167 and McMurty's "view with suspicion" approach was quickly over-
turned by a higher court. 168 The result is that courts have proved reluctant
to treat with suspicion the police testimony which is necessary for the
functioning of the system-even when there may be reason to doubt it.
The courts did not deny that police perjury was a problem, they just

162. See id. at 52-53.

163. See id. at 52. Specifically, the panel detennined that Rule 406 does not require evidence
of routine practice to be corroborated in order to be admissible, see FED. R. Evm. 406, and courts
routinely detennine that the testimony of one or two witnesses is sufficient to establish foundation.
See Maynard, 817 F.2d at 52-53.
164. See Maynard, 817 F.2d at 52. The panel also noted that although the defendant attacked
the officer's testimony as that given by a fonner officer "with an ax to grind" (referring to a suit
filed by the officer against the police department), often the only officers who will testify against a
department are those with complaints. See id. at 52 n.l.
165. See id. at 53.
166. See id.; accord United States ex rei. Petillo v. New Jersey, 400 F. Supp. 1152, 1182-83
(D.NJ. 1975) (asserting that "[i]f police perjury is to be exposed, fundamental fairness requires that
the courts permit aggrieved citizens to show that such perjury has occurred"), vacated and remanded
sub nom. Albanese v. Yeager, 541 F.2d 27S (3d Cir. 1976). Upon consideration of Rule 403 of the .
Federal Rules of Evidence in weighing the probative value of the testimony against its prejudicial ef-
fect, the panel detennined that the trial court did not err in refusing to admit a portion of the fonner
officer's testimony regarding an incident relating directly to one of the arresting officer witnesses;
because that testimony was highly prejudicial to the witness. See Maynard, 817 F.2d at 53.
167. See Maynard v. Sayles, 831 F.2d 173 (8th Cir. 1987).
168. See People v. McMurty, 314 N.Y.S.2d 194 (Crim. Ct 1970).
272 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

ruled that it was not their problem. 169 In Berrios, for example, the New
York Court of Appeals suggested that police executives and prosecutors
deal with the problem through departmental discipline and prosecutorial
discretion in selection and prosecution of witnesses. 170 The Bush court,
speaking through then-Judge Warren Burger, suggested that "a properly
instructed jury" would be able to evaluate the credibility of police
witnesses. 171
If courts have proven unwilling to establish broad prophylactic rules
against police perjury, they also seem blase about individual cases of
proven dishonesty. The Knapp Commission reported that "the risks of
severe punishment for corrupt behavior are slight. A dishonest policeman
knows that, even if he is caught ·and convicted, he will probably receive
a court reprimand or, at most, a fairly short jail sentence." 172 Twenty
years later, there still seemed to be some truth to the commission's fmd-
ings. For example, Steven Pataki, an officer "convicted of perjury that
sent a man to prison for three years . . . was given a three-month
sentence." 173

. IV. IMPEACHMENT THROUGH EVIDENCE OF BIAS AND MOTIVE TO LIE

Of the participants in the criminal justice system, the one in the best
position to deal with the problem of police perjury may be the one that .
some courts and prosecutors have suggested should deal with it, namely,
the trial jury. The very purpose of trial juries is to decide the truth in in-
dividual cases. Given the right tools, trial juries can be expected to do a

169. A notable exception is the New York rule that appellate courts may reject police testi-
mony which is incredible or patently untrue even if the fmder of fact at trial accepted it. In People v.
Heath, 625 N.Y.S.2d 540, 541 (App. Div. 1995), for example, the Appellate Division of the New
York Supreme Court found that an officer's "testimony that he observed defendant exchanging a 2-
inch glass vial with a dark top, from a distance of approximately 74 feet, from a moving patrol car,
after dark, is, in our view, contrary to common experience and, as such, was incredible as a matter
of law and did not support the verdict." Id. at 541. Accordingly, it applied the rarely invoked rule to
reverse a conviction for drug selling. See id.; see also, e.g., In re Pierre N., 637 N.Y.S.2d 704, 705
(App. Div.) (rejecting police testimony), appeal denied, 668 N.E.2d 417 (N.Y. 1996); People v.
Lebron, 585 N.Y.S.2d 498, 500 (App. Div. 1992) ("A reviewing court is not required to 'discard
common sense and common knowledge' in assessing an officer's hearing testimony, and when such
testimony appears 'manifestly untrue, physically impossible, contrary to experience or self-
contradictory,' it must be rejected on appeal despite the hearing court's findings otherwise.") (cita-
tions omitted). .
170. See People v. Berrios, 270 N.E.2d 709, 714 (N.Y. 1971).
171. See Bush v. United States, 375 F.2d 602, 604 (D.C. Cir. 1967).
172. KNAPP CoMMISSION, supra note 19, at 252-53.
173. Kocieniewski, supra note 4, § 1, at Al.
1998] BLUE WALL OF S1LENCE 273

good job of determining whether witnesses, including police officers, are

testifying honestly in the disputes they decide.
One essential tool is, of course, information about the credibility of
witnesses. Principles of evidence permit impeachment of the credibility
of a witnes~ through proof of bias or motive to lie, and permit extrinsic
evidence to demonstrate such bias or motive. 174 Once proof of bias or
motive to lie has been established, the credibility of the witness is· called
into question, and an instruction may be fashioned to indicate to the jury
that it should consider any bias or motive to lie that might color the tes-
timony of a particular witness. The remainder of this article suggests that
this approach will lead to more accurate results in individual cases by
providing juries with relevant information that will help them make cred-
ibility determinations. It may also have positive effects on the system as
a whole by encouraging policymakers to control police perjury.

A. Impeachment Through Proof of Bias and Motive to Lie Is ~ermitted

Cross-examination, the Supreme Court has said, is "the 'greatest le-

gal engine ever invented for the discovery of truth.' " 175 Among the most
probative evidence of credibility which· can be put before a jury is evi-
dence showing that the witness is not neutral, but rather has some bias or
motive to testify· inaccurately.
"Bias is a term used ... to describe the relationship between a
party and a witness which might lead the witness to slant, unconsciously
or otherwise, his testimony in favor of or against a party." 176 Rules in
many states explicitly allow impeachment based on bias or motive to
lie, 177 and, although not mentioned in the Federal Rules of Evidence, be-
cause of "its wide acceptance and established use at common law[~]" 178

174. See infra part IY.A.

175. California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 WIGMORE§ 1367).
176. United States v. Abel, 469 U.S. 45, 52 (1984); see also CHARLES T. McCoRMICK. Mc-
CoRMICK ON EVIDBNCB § 40, at 85 (Edward W. Cleary et al. eds., 3d ed. 1984); JACK B. WBINSTBIN
& MARGARET A. BERGER, WEINSTEIN'S EVIDENCE C)[ 607(03], at 607-27 (1996); 27 CHARLES ALAN
WRIGHI' & VICTOR JAMBS GoLD, FEDERAL PRAcnCB AND PROCEDURE § 6095, at 516 (1990); Steven
Lubet, Understanding Impeachment, 15 AM. J. TRIAL ADvoc. 483, 535 (1992); H. Richard Uviller,
Credence, Character, and the Rules of Evidence: Seeing Through the Liar's Tale, 42 DUKE LJ. 716,
784 (1993).
177. Although the Federal Rules of Evidence contain no specific provision allowing for the
impeachment of the credibility of the witness through bias,· interest,. or motive to lie, several state
rules of evidence explicitly provide for such a method of impeachment. See, e.g., ALA. R. EVID.
616; ALAsKA R. Evm. 613; HAw. R. Evm. 609.1; Miss. R. Evm. 616; Omo Evm. R. 616; OR. Evm.
CoDE 609-1 [OR~ REv. STAT.§ 40.360]; S.C. R. Evm. 608; TENN. R. Evm. 616.
178. Fred Warren Bennett, How to Administer the "Big Hurt" in a Criminal Case: The Life
274 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

federal courts have had little difficulty in holding that such impeachment
was impliedly authorized. Thus, proof of bias or motive to lie is recog-
nized as one of the common methods of impeaching a witness to dis-
credit the witness's testimony. 179 "In fact, the law regards proof of bias
as a particularly favored basis for attacking credibility." 180 Wigmore
writes that "[t]he range of external circumstances from which probable
bias may be.inferred is infmite." 181 Indeed, in criminal cases, the right to
impeach government witnesses for bias is grounded in the Constitution
itself. 182

and Times of Federal Rule of Evidence 806, 44 CATH. U. L. REv. 1135, 1147 (1995); see also WEIN-
STEIN & BERGER, supra note 176, Cf 607[03], at 607-25 (citing United States v. Abel, 469 U.S. 45
(1984)); 27 WRIGHf & GoLD, supra note 176, § 6095, at 524 (citing United States v. Abel, 469 U.S.
45 (1984)); Robert J. Hallisey, Experts on Eyewitness Testimony in Couri--A Short Historical Per-
spective, 39 How. U. 237, 238 (1995) ("Witness bias, interest, and motive to distort were recog-
nized early as having considerable importance in evaluating credibility."); Uviller, supra note 176, at
784-85 (asserting that the Supreme Court of the United States, as "nominal author of the Rules,"
has read impeachment-by-bias into the Federal Rules of Evidence).
179. See Bennett, supra note 178, at 1147; see also Rafael Guzman, Impeaching the Credibil-
ity of a Witness: Issues, Rules, and Suggestions, 1994 ARK. L. NoTES 29, 29 (recognizing five "text-
book" methods of attack on credibility of witnesses through impeachment: bias, prior cOnvictions,
prior inconsistent statements, prior bad acts, and reputation for untruthfulness). This view is sup-
ported by the current Federal Rules of Evidence. Under Rule 607 of the Federal Rules of Evidence,
the credibility of a witness may be attacked by any party. See FED. R. Evm. 607. Additionally, Rule
611(b) of the Federal Rules permits cross-examination of matters affecting the credibility of the wit-
ness. See FED. R. Evm. 61l(b). Generally, Rule 401 dictates that evidence which has a tendency to
make the existence of any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence is relevant, see FED. R. EVID. 401, and pursuant to
Rule 402, any relevant evidence is admissible, unless otherwise provided. .See FED. R. EVID. 402.
Notwithstanding, Rule 403 of the Federal Rules of Evidence requires a determination of whether the
prejudicial effect of the admission of the evidence substantially outweighs its probative value. See
FED. R. EVID. 403. See generally United States v. Abel, 469 U.S. 45 (1984); WEINSTEIN & BERGER,
supra note 176, '1607[03], at 607-25.
180. 27 WRIGHf & GoLD, supra note 176, § 6095, at 525.
181. 3A JoHN HENRY WIGMORE, EVIDENCE IN TRIALS AT CoMMON LAw,§ 949, at 784 (Chad-
bourne rev. 1970); see also EDWARD J. lMMwiNKELRIED, EVIDENTIARY FOUNDATIONS 134 (3d ed. 1995)
("There are no special foundational requirements for bias evidence; the opponent may prove any fact
or event logically relevant to show bias.").
182. See 21 WRIGHf & GoLD, supra note 176, § 6095, at 525; McCoRMICK, supra note 176,
§ 40, at 85 (noting that criminal defendants have "a conditional constitutional right to ••• attack the
credibility of government witnesses"); see also Delaware v. VanArsdall, 475 ·u.s. 673, 678-79
(1986); United States v. Abel, 469 U.S. 45, 50 (1984); Davis v. Alaska, 415 U.S. 308, 316-17
(1974); United States v. Cropp, 127 F.3d 354, 358 (4th Cir. 1997), cert. denied, 118 S. Ct. 898
(1998); Hoover v. Maryland, 714 F.2d 301, 305 (4th Cir. 1983) (quoting United States v. Tracey, 675
F.2d 433, 438 (1st Cir. 1982)); Niziolek v. Ashe, 694 F.2d 282, 289 (1st Cir. 1982); State v. Bova,
690 A.2d 1370, 1377 (Conn. 1997); Elliot v. United States, 633 A.2d 27, 32 (D.C. Ct. App. 1993);
Marr v. State, 470 So. 2d 703, 705 (Fla. App. 1985) (en bane); Commonwealth v. Bui, 645 N.E.2d
689, 694 (Mass. 1995); People v. Cunningham, 546 N.W.2d 715, 717 (Mich. Ct. App. 1996).
1998] BLUE WALL OF SILENCE 275

United States v. Abel183 is one of the leading cases applying the

principles of impeachment for proof of bias and motive to lie. In Abel,
the United States Supreme Court established that a defense witness's
common membership with the defendant in the "Aryan Brotherhood"
prison gang was probative of bias, even absent proof that the witness had
personally adopted the tenets of the organization. 184 In Osborne v. City of
Long Beach,l 85 an unpublished decision of the United States Court of
Appeals for the Ninth Circuit, the court applied Abel to a police depart-
ment, holding that police code of silence evidence is relevant to show
bias. 186 Both of these cases are examined in detail below.

1. United States v. Abel1s1

In United States v. Abel, the respondent, Abel, and two companions
were indicted for robbery. 188 The two companions pled guilty, but Abel
proceeded to trial. 189 One of Abel's companions, Ehle, identified Abel as
a participant in the crime. 190 Abel used the testimony of one Mills, a
prison acquaintance of both Abel and Ehle, to impeach Ehle's testi-
mony.191 Mills testified that Ehle had approached Mills after the robbery
to tell him that he was prepared to falsely implicate Abel in the robbery
to obtain favorable treatment from the government. 192 The prosecutor, in
tum, impeached Mills with testimony that Ehle, Abel, and Mills were all
members of a secret prison gang called the "Aryan Brotherhood," which .
required all of its members to deny the existence of the gang, to commit
perjury, and even to commit murder to protect other members~ 193

183. 469 u.s. 45 (1984).

184. See id. at 52.
185. No. 87-6262, 1988 WL 141391 (9th Cir. Dec. 20, 1988).
186. See id. at *4-5.
187. 469 u.s. 45 (1984).
188. See id. at 47.
189. See id.
190. See id.
191. See id.
192. See id.
193. See id. Other courts have recognized the existence of a code of silence among prison
gang members. See, e.g., Schlup v. Delo, 912 F. Supp. 448, 453 (E.D. Mo. 1995) (inmates may be
placed in danger if they fail to adhere to code of silence); People v. Griffith, 634 N.E.2d 1069,
1072-73 (Til. 1994) (prison gang m~mbers do not talk about what goes on in the prison); see also
Hayes v. State, 453 S.E.2d 11, 14 (Ga. 1995) (upholding trial court's admission of police officer's
testimony that name of gang meant "I will die for you, You will die for me"); Stephen A. Saltzberg,
Bias Evidence and Gang Membership, 11 CRIM. JusT. 46, 50 (1996) ("In some cases, the defense
may seek to establish that government witnesses are members of the same club, even if it is not a
gang, to show why those witnesses have a motive to corroborate one another.").
 276 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

The jury convicted Abel, but a divided panel of the Ninth Circuit
reversed. 194 The court of appeals found reversible error because the trial
court "allowed defense witness Mills to be impeached by association"
with a perjurious organization. 195 The appeals court reasoned that this vi-
olated "settled law that the government may not convict an individual
merely for belonging to an organization that advocates illegal activity." 196
The Supreme Court unanimously reversed, holding that .evidence of
the existence of the secret prison gang was relevant to show bias on the
part of a witness in favor of the defendant. 197 Although the Court ac-
knowledged that the Federal Rules of Evidence did not explicitly author-
ize impeachment for bias, the Court concluded that the Federal Rules did
not intend to eliminate the "evidentiary availability of cross-examination
for bias" which existed under the common law prior to the promulgation
of the Federal Rules. 198
According to the court, Ehle's testimony concerning the existence of
the prison gang made the existence of Mills's bias more probable; there-
fore, the testimony was relevant to support that inference. 199 In fact, the
Court observed that "[p]roof of bias is almost always relevant because
the jury, as finder of fact and weigher of credibility, has historically been
entitled ·to assess all evidence which might bear on the accuracy and
truth of a witness' testimony~" 200 The Court determined that because
Mills and Abel both belonged to the Aryan Brotherhood, an organization
which required its members to lie and even kill to protect each other, the
inference that Mills had slanted or even fabricated his testi~ony was

194. See Abel, 469 U.S. at 48; see also United States v. Abel, 707 F.2d 1013, 1016-17 (9th
Cir. 1983), rev'd, 469 U.S. 45 (1984).
195. Abel, 101 F.2d 1016-17.
196. See id. at 1016 (citing Bradenburg v. Ohio, 395 U.S. 444, 448 (1969); Scales v. United
States, 367 U.S. 203, -219-24 (1959)):
197. See Abel, 469 U.S. at 49.
198. /d. at 50; see, e.g., District of Columbia v. Clawans, 300 U.S. 617, 630-32 (1937) (recog-
nizing the availability of cross-examination for bias); Funk v. United States, 290 U.S. 371, 380
(1933) (effect of bias on interested witness reduced by availability of cross examination); Alford v.
United States, 282 U.S. 687, 692 (1931) (one permissible purpose of cross-examination is to show
that testimony is biased). Indeed, Davis v. Alaska1 415 U.S. 308 (1974), determined that the Confron-
tation Clause of the Sixth Amendment to the Constitution dictates that a defendant shall have the op-
portunity to demonstrate bias of a prosecution witness. See id. at 316-18. The Abel Court further
noted that the Advisory Committee Notes to Rules 608 and 610 of the Federal Rules of Evidence
make reference to bias. See Abel, 469 U.S. at 51; see also FED. R. Evm. 608 & 610 advisory com-
mittee's notes.
199. See Abel, 469 U.S. at 52.
200. /d.

·'i'I

I ,'i
1998] BLUE WALL OF SILENCE 277

strongly supported. 201

Finally, the Court rejected the claim that the prejudicial effect of the
admission of the evidence outweighed its probative value under Rule 403
of the Federal Rules of Evidence.202 The Court noted that the district
court is given wide discretion in determining admissibility under Rule
403, and found that the district court did take measures to help alleviate
any undue prejudice.203 In determining that th.e probative value of the tes-
timony in the form it was presented outweighed any prejudice, the Su-
preme Court stated that "[t]he attributes of the Aryan Brotherhood-a se-
cret prison sect sworn to perjury and self-protection-bore directly not
only on the fact of bias but also on the source and strength of Mills'
bias." 204

2. Osborne v. City of Long Beach205

In Osborne v. City of Long Beach, the Ninth Circuit applied Abel to
hold that evidence regarding a code of silence in the Long Beach, ·Cali-
fornia police department was relevant and admissible to show bias. 206 The
case involved a § 1983 claim by the plaintiff against several Long Beach
police officers for false arrest and assault and battery.207 One of the of-
ficers allegedly slapped the plaintiff twice in the course of arresting him
and two other suspects.208 At trial, one of the officers gave testimony that
was, according to the court of appeals, inconsistent with the arrest re-
ports,.209 The jury found that the officers were not liable to the plaintiff.210
On appeal, the plaintiff claimed that the district court erred by ex-
cluding evidence regarding the existence of a code of silence among the

201. See id.

202. See id. at 53-55. It was not Abers contention that the entire testimony regarding mem-
bership in the prison gang should have been excluded because the prejudicial effect outweighed the
probative value; rather, Abel argued that the portion of the testimony specifically describing the Ar-
yan Brotherhood as a "lying and murderous organization" should not have been permitted. See id. at
54.
203. See id. at 54-55. The district court ruled that the ·prosecutor was not permitted to use the
tenn "Aryan Brotherhood" in reference to the gang because it was unduly prejudiciaJ. See id. at 48.
Thus, upon cross-examination, the prosecutor described the gang as a "secret type of prison organi-
zation." Id.
204. ld. at 54.
205. No. 87-6262, 1988 WL 141391 (9th Cir. Dec. 20, 1988).
206. See id. at *4-5.
207. See id. at *1.
208. See id.
209. See id. at *2-3.
210. See id. at *2.
278 UNIVERSITY OF PI'ITSBURGH LAW REVIEW [Vol. 59:233

Long Beach police.211 The evidence at trial was to be in the form of tes-
timony by a former chief of the department that in twenty-seven years
with the Long Beach police, he recalled hearing of only one instance of
"whistle-blowing" by one officer against another for excessive use of
force. 212 In addition, the witness was to testify that "peer pressure, in the
form of potential ostracism and refusal to assist, worked against an of-
ficer breaking this code of silence. " 213 The court of appeals relied upon
the United States Supreme Court's decision in Abel in determining that
" '[a] witness' and a party's common membership in an organization,
even without proof that the witness or party has personally adopted its
tenets, is certainly probative of bias.' " 214 The court remanded the case
for a determination of whether the code of silence evidence was admissi-
ble under the probative value/prejudicial effect balancing test of Rule 403
of the Federal Rules of Evidence, and if so, whether the failure to admit
the evidence constituted prejudicial error. 215
The Osborne .court's application ·of Abel is sound. It dovetails with
the many cases holding that defendants may introduce evidence that po-
lice officers have some motive to lie in a particular case~ 216 Similarly,
~any cases recognize that parties may impeach police officers217 or po-

211. See id. at *4. The district court detennined that the evidence was irrelevant and, in any
event, more prejudicial than probative under Rule 403 of the Federal Rules of Evidence. See id.
212. See id.
213. Id.
214. Id. (quoting United States v. Abel, 469 U.S. 45, 52 (1984)).
215. See id. at *9. The court cited United States v. Wallace, 848 F.2d 1464, 1475-76 (9th Cir.
1988), for the proposition that "where [a] criminal trial turns on credibility of witnesses, errors
which go to credibility are particularly troubling." Osborne, 1988 WL 141391, at *9.
216. See People v. Fatone, 211 Cal. Rptr. 288, 293 (App. Ct. 1985) ("Defense counsel has an
absolute right to explore avenues of potential bias with a prosecution witness, particularly a police
officer."); Webb v. State, 336 So. 2d 416, 418 (Fla. Dist. Ct App. 197~) (reversing criminal convic-
tion where defendant was prohibited from introducing evidence of contemplated civil suit by defend-
ant against police); State v. Smits, 792 P.2d 565, 567-68 (Wash. Ct. App. 1990) (reversing conviction
where defendant was precluded from inquiring about potential civil suit by officer against defend-
ant); State v. Jones, 610 P.2d 934, 937 (Wash. Ct. App. 1980) (holding that evidence of alleged per-
sonal bias by police against defendant should have been admitted).
217. See Blair v. United States, 401 F.2d 387, 390 (D.C. Cir. 1968) (noting that evidence of
police brutality should, if offered, be a<bnitted at retrial to show bias of police officers as witnesses);
Hutching v. State, 518 P.2d 767, 769 (Alaska 1974) (holding that defendant should have been per-
mitted to explore possible bias on part of key prosecution witness who was a former police officer
seeking reinstatement to the department); Mendez v. State, 412 So. 2d 965, ?66 (Fla. Dist Ct. App.
1982) (reversing conviction where defendant was precluded from introducing evidence of an officer's
motive for "misrepresentation of the true facts surrounding the ... incident," namely, avoiding offi-
cial discipline); Stripling v. State, 349 So. 2d 187, 191 (Fla. Dist. Ct. App. 1977) (reversing bribe
solicitation conviction where defendant was precluded from bringing out fact that key police witness
was under investigation for "shake downs" and thus had a motive to "ingratiate himself and possi-
1998] BLUE WALL OF SILENCE 279

tential defendants218 by showing that they are susceptible to being helped

or hurt by law enforcement authorities and therefore have a reason to tai-
lor their testimony. Cases also recognize that a witness may be im-
peached with evidence that they may be subject to retaliation for their
testimony. 219 A leading treatise explains that "[b]ias has . . . been found
where it is shown that a witness has a personal interest in the outcome of
litigation or the matters about which she testifies. Cases in this category
include instances where the witness . . . ·may be subject to criticism or
disgrace for the content of her testimony. " 220 Osborne, then, seems to be
nothing more than application of well-settled rules in a somewhat novel
factual context.

B. Extrinsic Evidence to Show Bias and Proof of Motive to Lie is

Permitted
The traditional rule is that extrinsic evidence is not admissible to
impeach a witness on a collateral matter. 221 But because evidence of bias

bly vindicate himself with the state's attorney's office"); Luthennan v. State, 348 So. 2d 624, 625
(Fla. Dist. Ct. App. 1977) (reversing conviction where defendant was precluded from cross-
examining police officers on fact that they were under investigation for brutality based· on arrest of
defendant); People v. Robinson, 371 N.E.2d 1170, 1176 (Ill. Ct. App. 1977) (holding that defendant
charged with assaulting police officer and claiming that he was the victim of a police assault should
have been pennitted to show that the officer had been suspended for "committing an act of vio-
lence" and that the officer's testimony "may have been influenced by a desire to return to active I I
duty without further trouble and to avoid continued suspension or other disciplinary measures"); I
Jones v. State, 837 P.2d 1349, 1354 (Nev. 1992) (reversing conviction where defendant was pre-
cluded from attempting "to prove that the officers involved in the arrest may have been motivated to
lie by the possibility that they might be exposed to civil liability for the beatings"); State v. Miller,
194 S.E.2d 353, 358 (N.C. 1973) (affinning lower court's holding that it was error to exclude evi-
dence of police brutality offered to show bias of police); Moody v. State, 830 S.W.2d 698, 705 (Tex.
Ct. App. 1992) (reversing conviction where defendant was not permitted to impeach police witness
by showing that officer had motive to lie about incident to cover up his violation of department
policy).
218. See Davis v. Alaska, 415 U.S. 308, 316-17 (1974) ("[E]xposure of a witness' motivation
in testifying is a proper and important function of the constitutionally protected right of cross-
examination."); United States v. Boyd, 833 F. Supp. 1277, 1360 (N.D. m. 1993) ("Ev,idence that a
government witness has a bias in favor of the government is always pennissible cross-examination
and, if not admitted by the witness, may be proven by extrinsic evidence."), aff' d, 55 F.3d 239 (7th
Cir. 1995); cf. Giglio v. United States, 405 U.S. 150, 155 (1972) (reversing conviction where govern-
ment failed to disclose that its key trial witness had been offered the possibility of letP.ency and stat-
ing that such evidence "would be relevant to his credibility and the jury was entitled to know of
it").
219. See, e.g., United States v. Keys, 899 F.2d 983, 987-88 (lOth Cir. 1990) (holding that gang
membership could be proven to show that witnesses may be subject to retaliation).
220. 27 WRIGHT & GoLD, supra note 176, § 6095, at 520-22.
221. See 3A WIGMORE, supra note 181, § 948, at 783-84.
280 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

directly impacts upon the witness's credibility, the use of such extrinsic
evidence is always permitted to impeach the witness. 222 As the Supreme
Court explained in Davis v. Alaska,223 defense counsel should be "permit-
ted to expose to the jury the facts from which jurors, as the sole triers of
fact and credjbility, could appropriately draw inferences relating to the
reliability of the witness. " 224 Courts impose no "limits on the admissibil-
ity of'extrinsic evidence -of bias. " 225 That is, even if the witness fails to
admit to the facts that establish bias, other forms of proof, such as testi-
mony of other witnesses, is liberally permitted.226
There is a split of authority on the issue of whether a foundation
must be laid, by cross-examination of the witness under attack, before
extrinsic·evidence of the facts demonstrating bias can be admitted. Where
bias is evidenced by a prior statement of the ·witness, a .majority of courts
appear to require that the witness frrst be asked about the facts demon-
strating bias and be given the opportunity to admit or deny those facts. 227

222. See United States v. Abel, 469 U.S; 45, 51 (1984); WEINSTEIN & BERGER, supra note
177, 1 607[03], at 607-27; Bennett, supra note 178, at 1147; Anthony M. Brannon, Successful Shad-
owboxing: The Art of Impeaching Hearsay Decwrants, 13 CAMPBELL L. REv. 157, 164 (1991); Uvil-
ler, supra note 176, at 785. The Court in Abel recognized that federal courts of appeals have pennit-
ted the use of extrinsic evidence to show bias both before and after the adoption of the Federal !
Rules. See Abel, 469 u:s. at 51; see, e.g., United States v. James, 609 F.2d 36, 46 (2d Cir. 1979);
United States v. Frankenthal, 582 F.2d 1102, 1106 (7th Cir. 1978); United States v. Brown, 547 F.2d
438, 445-46 (8th Cir. 1977); United States v. Harvey, 547 F.2d 720, 722 (2d Cir. 1976); United
II
States v. Robinson, 530 F.2d 1076, 1079-80 (D.C. Cir. 1976); United States v, Blackwood, 456 F.2d
526, 530 (2d Cir. 1972).
223. 415 u.s. 308 (1974).
224. /d. at 318.
225. 27 WRIGHT & GoLD, supra note 176, § 6095, at 525-26 (footnote omitted).
226. See WEINSTEIN & BERGER, supra note 176, C)( 607[03], at 607-28; 27 WRIGHT & GoLD,
supra note 176, § 6095, at 526.
There are certain limitations on the admissibility of extrinsic evidence of bias. For example, ex-
trinsic evidence is not admissible if it violates a constitutional right, such as the privilege against
self-incrimination, see WRIGHT & GoLD, supra note 176, § 6095, at 527 & n.46 (citing Coil v.
United States, 343 F.2d 573, 577-79 (8th Cir. 1965)), or another rule of evidence, see id. at 527-28.
In addition, Rule 403 probative value/prejudicial effect considerations may cause extrinsic evidenCe
to be excluded in appropriate cases. See WEINSTEIN & BERGER, supra note 176, 1 607[03], at 607-43;
WRIGHT & Goi.o, supra note 176, § 6095, at 528. Courts also have limited discretion to detenniJle
the extent to which the proof will be admitted under Rules 102, 104(b), 611, 901(a), and 1008 of the
Federal Rules of Evidence. ·See WEINSTEIN & BERGER, supra note 176, fJ( 607[03], at 607-30 to 607-
31.
227. See McCoRMicK, supra note 176, § 40, at 87; see, e.g., United States v. Harvey, 547 F.2d
720, 722 (2d Cir. 1976) (noting that proper foundation is required prior to proffer of extrinsic evi-
dence of bias); Washington v. United States, 499 A.2d 95, 102 (D.C. 1985) (noting that before ex-
trinsic evidence can be introduced, a majority of courts, including the District of Columbia Court of
Appeals, require a proper foundation by fll'St cross-examining the witness); Hebert v. State, Nos. 01-
86-00595-CR, 01-86-00596-CR, 1987 WL 5119, at *2 (fex. Ct. App. Apr. 30, 1987) (noting that
1998] BLUE WALL OF SILENCE 281

Allowing the witness an opportunity to comment on the statement pro-

motes fairness to the witness and ·may save time by obviating the need
for unnecessary extrinsic evidence in the event of an admission of bias.228
Where bias is indicated by conduct or circumstances rather than
statements, authorities are split on the issue of a foundation as a prereq-
uisite to the admission of extrinsic evidence.229 Prior to the enactment of
the Federal Rules of Evidence, federal courts apparently required no
foundation if bias was to .be suggested by conduct or circumstances.230
Several authorities endorse this approach,231 while others suggest that the

Texas Rules of Criminal Evidence require that witness have the opportunity to admit, deny, or ex-
plain evidence of bias as predicate to admission of extrinsic evidence; if bias unequivocally con-
fessed, no extrinsic ev.idence admissible); see also WBINSTBIN & BERGER, supra note 176, «J[ 607[03],
at 603-53 to 607-54 (asserting that, prior to the enactment of the Federal Rules of Evidence, federal
courts required foundation where bias was in form of statement made by witness); 27 WRIGHI' &
OoLD, supra note 176, § 6095, at 531-32, 532 n.65 (noting that federal authorities uniformly require
a foundation where bias is evidenced by a prior statement; noting also that not all state courts follow
federal authority on this issue). A minority of courts require no foundation by cross-examination of
the witness prior to the introduction of extrinsic evidence. See McCoRMICK, supra note 176, § 40, at
88;· see, e.g., Wmtjen v. State, 398 A.2d 780, 782 (Del. 1979) (asserting that "[t]he possible bias of
a witness is· always a relevant inquiry, and a cross-examiner need not lay a foundation to explore
it"); Pettie v. State, 560 A.2d 577, 580 (Md. 1989) (stating that, although foundation is necessary
where witness general credibility is attacked, no foundation necessary where accuracy of witness tes-
timony is challenged through bias); Clayton v. Freehold Township Bd. of Educ., 337 A.2d 361, 363
(N.J. 1975) ("[B]ias of a witness may be shown by extrinsic evidence without the necessity for prior
cross-examination of the witness."); State v. Kehn, 361 N.E.2d 1330, 1335 (Ohio 1m) ("The im-
peachment of a witness by showing bias or prejudice does not require the foundation necessary for
·impeaching a prior inconsistent statement •••• "); State v. Williams, 573 N.E.2d 704, 706 (Ohio Ct.
App. 1988) (noting that Ohio follows "minority rule," which does not require foundation to be laid
as a prerequisite to introduction of extrinsic evidence of bias).
228. See McCoRMICK, supra note 176, § 40, at 88; 27 WRIGHI' & GoLD, supra note 176,
§ 6095, at 533. Even in the event of an unequivocal admission of bias by the witness, admission of
extrinsic evidence may be warranted where the bias "is not adequately revealed by just his admis-
sion to .uttering the words comprising a statement," where the witness does' not "disclose the tone of
the statement or the circumstances under which it was made," or where the testimony itself is af-
fected by the same bias. Id. § 6095, at 534 (footnote omitted).
229. See 27 WRIGHI' & OoLD, supra note 176, § 6095, at 535 & n.76.
230. See WEINSTEIN & BERGER, supra note 176, «J[ 607[03], at 607-53 (citing Comer v. Penn-
sylvania R.R. Co., 323 F.2d 863 (2d Cir. 1963)); 27 WRIGHI' & GoLD, supra note 176, § 609~. at
535 n.76; see also United States v. White, 225 F. Supp. 514, 519-21 (D.D.C. 1963) (noting that a
fact suggesting bias does not require a foundation by cross-examination, but a statement by a witness
indicating bias does), remanded, 349 F.2d 965 (D.C. Cir. 1965). State cases also apparently foJlowed
this approach. See, e.g., Barraclough v. Union Pac. R.R. Co., 52 S.W.2d 998, 1001-02 (Mo. 1932) .
(stating that the rule requiring foundation by cross-examination applies only to statements and not to
conduct or circumstances).
Z31. See WEINSTEIN & BERGER, supra note 176, 'I 607[03], at 607-54 ("Evidence of biased
conduct should remain exempt from a foundation requirement since the notes to Rule 613(b) state:
'Under principles of expressio unius the rule does not apply to impeachment by evidence of prior in-
consistent conduct.'" ) (first emphasis omitted); 3A WIGMORE, supra note 181, § 955 ("the rule [re-
282 UNIVERSITY OF PITISBURGH LAW REVIEW [Vol. 59:233

witness should first be given the opportunity to explain the conduct or

circumstances indicating bias. 232
Extrinsic evidence may be essential to demonstrating a witness's
bias or motive to lie, because the witness will often attempt to avoid
conceding the facts which justify impeachment.233 For example, witnesses
with racial, ethnic or other invidious prejudices will generally be unwill-
ing to admit them. 234 Therefore, the only way to show bias may be
through extrinsic evidence. 235 Similarly, a police officer subject to the
code of silence who takes the stand to testify concerning the wrongdoing
of a fellow police officer will naturally be reluctant to affirm the exis-
tence of the code because of the possibility of retaliation. 236
Bias or motive to lie may be proven through expert testimony or
testimony of other witnesses who can attest to the existence of the under-
lying impeaching facts. 237 This type of evidence may be difficult to ob-
tain, however, especially in the context of impeachment through proof of
the code of silence, if the only potential witnesses are the police officers
who are exposed to the code on a day-to-day basis.
As a solution to this difficulty, excessive force claimants in cases
arising out of the federal district courts of New York have attempted to
offer portions of the Mollen Commission report or similar reports as ex-
trinsic evidence of bias and motive to lie to impeach the credibility of
police witnesses. 238 In spite of Federal Rule of Evidence 803(8)(C), ren-

quiring foundation] applies only to utterances, not to conduct or circumstances").

232. See McCoRMICK, supra note 176, § 40, at 88 ("[W]ords and conduct are usually inter-
mingled in proof of bias, and 'nice and subtle distinctions' should be avoided in shaping this rule of
trial practice. Better require a 'foundation' as to both or neither.") (footnote omitted); 27 WRiotrr &
GoLD, supra note 176, § 6095, at 536 ("H mere words can be ambiguous indicators of bias, conduct
can present even greater problems of interpreting meaning." Thus, the "witness' explanation of his
conduct may be essential to drawing the proper inferences about bias." Further, time may be saved
by giving the witness a chance to admit to the conduct in question, obviating need for unnecessary
extrinsic evidence.).
233. See Lubet, supra note 176, at 539.
234. See ~d.
235. See WEINSTEIN & BERGER, supra note 176, 1 607[03], at 607-36 (noting that "the exis-
tence of bias can usually be demonstrated only circumstantially by proof of relatlo~ships or conduct
or utterances"); 27 WRiotrr & GOLD, supra note 176, § 6095, at 517 ("Because bias is a state of
mind, usually it can be proven only circumstantially. This is because a witness rarely admits she is
biased and other witnesses cannot testify directly on the issue since they lack personal knowledge of
her state of mind.").
236. See supra part m.A (discussing retaliation against police officers for breaching the code
of silence). ·
237. See, e.g., Guzman, supra note 179, at 30; Lubet, supra note 176, at 539.
238. See Shaw v. City of New York, No. 95-CIV.-9325 AJP, 1997 WL 187352 (S.D.N.Y. Apr.
15, 1997) (citing Williams v. City of New York, No. 94-CIV.-6234 (S.D.N.Y. Sepl 6, 1996) (unpub-
1998] BLUE WALL OF SILENCE 283

dering non-hearsay "factual findings resulting from an investigation

made pursuant to authority granted by law, " 239 these courts have gener-
ally excluded admission of such reports for this purpose. 240
Other litigants in federal district courts have attempted to offer por-
tions of commission reports as proof of the existence of a code of silence
in various police departments to establish MonelP.41 policy or custom lia-
bility of a municipality. 242 Several cases involved suits by police officers
against their departments or municipalities under § 1983; each police of-
ficer-litigant asserted that they had been subjected to retaliation for
speaking out against questionable or invidious department policies or cus-

lished transcript); King v. City of New York, No. 93-CIV.-TI38 (S.D.N.Y. Aug. 15-21, 1996) (unpub-
lished transcript); Jackson v. City of New York, No. 93-CV-174 (E.D.N.Y. Apr. 24, 1996) (unpub-
lished order); Bryant v. New York City, No. CV-92-0960 (E.D.N.Y. Oct. 27, 1994) (slip op.)).
239. For an excellent treabnent of the admissibility of investigatory reports under the Federal
Rules of Evidence, including Rule 803(8)-Public Records. and Reports Exception, see generally
Schwartz, supra note 12; see also Gentile v. County of Suffolk, 129 F.R.D. 435, 442-62 (E.D.N.Y.
1990), af/'d, 926 F.2d 142 (2d Cir. 1991).
240. See Shaw, 1997 WL 187352, at *9-10 (denying admissibility of Mollen Commission re-
port); Williams, No. 94-CIV.-6234, tr. at 85 (as quoted in Shaw, 1997 WL 187352, at *8) ("[T]he
probative value of the Report is far outweighed by the. extreme prejudice. The Report is relevant at
best on general credibility issues. . . . It has no relationship to the specific issues or persons in this
case."); Jackson, No. 93-CV-174, slip op. at 2 (as mentioned in Shaw, 1997 WL 187352, at *8) (in
case involving tWo claims that were bifurcated by judge, one claim against individual police officers
and one claim against city pursuant to Monell v. Department of Soc. Serv., 436 U.S. 658 (1978),
plaintiff proposed trying claims together and offered to limit Monell proof to Mollen Commission re-
port; court held that report may prejudice individual defendants in later trial); Bryant, No. CV-92-
0960, slip op. at 9-10 (as quoted in Shaw, 1997 WL 187352, at *7) (Mollen Commission report ex-
[;
cluded because it is "simply too great a logical leap to assume that civil rights violations also arise
from the same sources that give rise to police corruption•'). But cf. King (as quoted in Shaw, 1997 I
WL 187352, at *8) (noting that portion of Mollen Commission report was admitted for impeachment
upon stipulation of parties).
241. See Monell v. Deparbnent of Soc. Serv., 436 U.S. 658 (1978). Monell established that a :I
II
municipality may be liable under a § 1983 claim if the plaintiff establishes a constitutional violation
resulting from municipal policy or custom. See id. at 694; see also Pembaur v. City of Cincinnati, :!
47~ u.s. 469, 483-84 (1986). I
I;.J.t

242. See Janetka v. Dabe, 892 F.2d 187 (2d Cir. 1989) (Suffolk County excessive force claim-
ant attempted to introduce portions of the state investigation report issued by the Temporary Com-
mission of Investigation of the State of New York (the ••siC Report") on official condonation of po-
l
lice misconduct by the Suffolk County Police Deparbnent); White-Ruiz v. City of New York, No.
93-CIY.-7233 (DLC) (MHD), 1996 WL 603983 (S.D.N.Y. Oct. 22, 1996) (Mollen Commission Re-
port); Domenech v. City of New York, 919 F. Supp. 702, 709-710 (S.D.N.Y. 1996) (Mollen Commis-
sion Report); Ariza v. City of New York, No. CV-93-5287, 1996 WL 118535 (E.D.N.Y. Mar. 7,
1996) (Mollen Commission Report); Gentile v. County of Suffolk, 129 F.R.D. 435 (E.D.N.Y. 1990)
(proffer by claimant of portions of the SIC Report detailing widespread police and prosecutorial mis-
conduct), affd, 926 F.2d 142 (2d Cir. 1991); see also Ricciuti v. New York City Transit Auth., 754
F. Supp. 980 (S.D.N.Y. 1990) (proffer by claimant of three reports concerning operation of transit
authority police deparbnent and newspaper reports and court decisions charging or finding that of-
ficers had conducted illegal arrests), vacated, 941 F.2d 119 (2d Cir. 1991).
 284 UNIVERSITY OF PITTSBURGH LAW REVlEW [Vol. 59:233

toms, in violation of their First Amendment free speech rights. 243 Other
cases were brought by excessive force claimants against municipalities
, and other defendants under § 1983.244 In only one case did a court reject
the use of a report to support a plaintiff's allegation of the existence of
an unconstitutional custom or policy.245 Other cases have admitted the
proferred reports into evidence, or have otherwise allowed the reports to
support the allegations of municipal policy or custom. 246 In addition, at
least one Ninth Circuit excessive force claimant sought to offer excerpts
of the Christopher Commission report as relevant to prove municipal lia-
bility. 247 The United States Court of Appeals for the Ninth Circuit re-
manded the case because the District Court improperly excluded the
report.248
Thus, courts have taken divergent approaches to the admission of re-
ports evincing the pervasive nature of the code of silence or conscious
ignorance by police supervisors of their subordinates' behavior. The cases
indicate that the Mollen Commission report, or reports similar to it, gen-
erally may not be 'used to impeach the credibility of a police witness in

243. See White-Ruiz, 1996 WL 603983, at *1; Domenech, 919 F. Supp. at 705-06; Ariza, 1996
WL 118535, at *1. ·
244. See Janetka, 892 F.2d at 891; Ricciuti, 754 F. Supp. at 982; Gentile, 129 F.R.D. at 439.
245. See Janetka, 892 F.2d at 191 (finding that the SIC Report was not relevant and not ad-
missible because the claimant failed to produce a copy of the report, failed to make an offer of proof
as to which portions of the report were relevant, and failed to connect the behavior of the individual
officers to policy or practice of county). In Ricciuti, the court denied the claimant's request to amend
his complaint to allege a policy or practice of deliberate indifference by the municipal defendants to
the claimant's constitutional rights. See Ricciuti, 754 F. Supp. at 986-87. In the amended complaint,
the claimant sought to incorporate three reports concerning the operation of the Transit Authority Po-
lice Department (the "TAPD") as well as the newspaper reports and court decisions regarding illegal
arrests by TAPD officers. See id. at 984. The court indicated that because "no common thread
emerge[d.] from the facts alleged in the proposed amended complaint," the pleading was "insuffi-
cient in law." ld. at 987. The Second Circuit, however, vacated and remanded, stating that "eviden-
tiary flaws in documents described in a pleading are not a basis for dismissal for failure to state a
claim." Ricciuti v. _New York City Transit Auth., 941 F.2d 119, 124 (2d Cir. 1991); cf. Domenech,
919 F. Supp. at 711 (holding that question of admissibility of Mollen Commission report was moot).
246. See White-Ruiz, 1996 WL 603983, at *8 (finding Mollen Commission report admissible
in support of Monell claim); Ariza, 1996 WL 118535, at *3-5 & n.2 (motion for summary judgment
by municipality denied, based, in part, on proffered Mollen Commission report, stating that "[t]he
code [of silence], by definition, chills speech, and the Mollen report contained evidence·.•• support-
ing plaintiff's claim that he suffered recriminations for breaking the code"); Gentile, 129 F.R.D. at
442-62 (fmding SIC Report relevant and trustworthy and permitting claimant and defendant to read
select portions of. report to jury).
247. See Montiel v. City of Los Angeles, 2 F.3d 335, 341 (9th Cir. 1993).
248. See id. at 341-42 (holding that Christopher Commission report is presumed trustworthy
under Rule 803(8)(C) of the Federal Rules of Evidence; district court erred in not requiring defend-
ant to prove lack of trustworthiness of report).
 I

1998] BLUE WALL OF SILENCE 285 I

I.
an excessive force case, but that reports may be used substantively to
demonstrate the existence of municipal policy or custom for purposes of
Monell. The Rule 403 probative value/prejudicial effect balancing test
plays a large role in determining whether a court will ·admit the report.
Shaw v. City of New York249 nicely sets forth the reasons some
courts find the Mollen Commission report inadmissible for impeachment.
In Shaw, an excessive force claimant sought to offer excerpts from the
Mollen Commission report to demonstrate the existence ,of the code of
silence by which police officers protect fellow officers and lie, if neces-
sary, to do so.250 The plaintiff claimed that inferences, could be fairly
drawn from the pre-trial record that the officers "behaved in a manner
consistent with the 'code of silence' and 'falsification of reports and tes-
timony' among NYPD police officers which was documented by the
(Mollen Commission) Report." 251 The court determined that:
[i]f the Mollen Commission Report were held admissible here, it logically would
be admissible in every suit, civil and criminal, in which a police officer was al-
leged to be lying to support the testimony of a fellow police officer. Indeed, it
would be admissible in every civil and criminal case in which even a single police
officer testified. The Court declines to establish such a precedent.252

The court noted that "recent high profile cases such as the Rodney King
and O.J. Simpson trials" made it unlikely that jurors would need to rely
upon the Mollen Commission report to be aware that police officers are
sometimes untruthful. 253 In the end, the court held that "[c]urrent public
perception, along with an appropriate jury instruction on witness credibil-
ity including that the credibility of the specific police officers who are
defendants and/or witnesses is for the jury to determine, renders the Mol-
len Report superfluous," and, in any event, the probative value of the
Mollen Commission report was substantially outweighed by prejudice
under Rule 403 of the Federal Rules of Evidence.254
This reasoning is questionable on several grounds. First, the purpose
of the proffer of the report in Shaw and in similar cases is to impeach
the witness through extrinsic evidence of bias and motive to lie, often
where credibility is a critical issue.255 The bias and motive to lie arise not

249. No. 95-CIV.-9325 AJP, 1997 WL 187352 (S.D,N.Y. Apr. 15, 1997).
250. See id. at *7.
251. ld.
252. ld. at *9.
253. ld.
254. ld. at *10.
255. See supra part IV.A.
 286 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

merely from a bare assertion that the officers of the department are en-
gulfed by a code of silence, 256 but that the officers will suffer serious
repercussions in the form of retaliation as a result .of breaking the code.
Even if the average juror knows that there is a police code of silence, it
is highly doubtful that most realize that the code may be enforced
through severe retaliation. Moreover, even questions of fact which are so
clear that they can be the subject of judicial notice nevertheless can be
proven through evidence. 257
Second, the decision rests on inconsistent premises. On the one
hand, the court concluded ·that jurors are likely to know details about po-
lice culture, .including the blue wall of silence. 258 On the other hand, the
court found that the introduction of this evidence would be so inflam-
matory that it should be excluded as substantially more unfairly prejudi-
cial than probative; 259 the same piece of evidence cannot' simultaneously
be well known to a jury and yet so prejudicial that it must be kept from
them lest it interfere with their evaluation of the .case.
Further, this kind of evidence seems a poor candidate for exclusion
pursuant to Rule 403. As the Supreme Court explained in Abel, the char-
acteristics of the code of silence bear directly on the fact of bias as well
as the origin and strength of the bias. 260 Thus, the underlying tenets of
the police code of silence, similar to the Aryan Brotherhood in Abel,
demonstrate that the witiiess possesses a strong incentive to slant the tes-
timony towards his fellow officer, or even commit outright perjury. 261 In
· addition, while the trial court is given broad discretion in determining the
admissibility of evidence under the Federal Rules,262 Rule 403 is an "ex-
traordinary remedy" which should be "used sparingly. " 263 "The 'major
function' of Rule 403 is 'limited to excluding matter of scant or cumula-

256. See, e.g., Sanders v. City of Indianapolis, 837 F. Supp. 959 (S.D. Ind. 1992) (granting
post-trial motion for judgment as a matter of law in favor of defendant municipality against exces-
sive force claimant because only evidence presented by claimant in support of code of silence con-
spiracy claim was "speculation" that defendant police officers withheld truthful testimony on witness
stand and expert witness specifically testified that he had no knowledge of code of silence in Indian-
apolis Police Department):
257. See FED. R. EVID. 201 (discussing judicial notice).
258. See Shaw, 1997 WL 187352, at *9.
259. See id. at *10.
260. See United States v. Abel, 469 U.S. at 45, 54 (1984).
261. See id.; United States v. Keys, 899 F.2d 983 (lOth Cir. 1990).
262. See Abel, 469 U.S. at 54.
263. United States v. Plotke, 725 F.2d 1303, 1308 (11th Cir. 1984); see also United States v.
Roberts, 88 F.3d 872, 880 (lOth Cir. 1996); Wescott v. Crinklaw, 68 F.3d 1073, 1077-78 .(8th Cir.
1995); United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995).
 !
i ~

i
! ;

1998] BLUE WALL OF SILENCE 287

tive probative force, dragged in by the heels for the sake of its prejudi-
cial effect.' " 264 A commission report is powerful evidence not because it
is inflammatory or unfair, but because it is probative.265
Finally, the court's observat~on that the report would be admissible
in every case, even in the event only one officer testifies, is not so. The
premise is not that .all police officers are liars, and that therefore any liti-
gant should always be able to proffer evidence so indicating. Rather,
there is a fairly specific foundation: where a code of silence has been es- I I

tablished in a police force, and there is evidence that it is supported ' I

I i
through retaliation, officers have a powerful motive to lie to avoid retali-
ation. Extrinsic evidence demonstrating such a likelihood, including ex-
pert testimony, should be permitted to demonstrate the code of silence
and retaliation which give rise to the possible bias and motive to lie.
This position is not inconsistent with the Ninth Circuit's decision in Os-
borne v. City of Long Beach. 266
In fmding that the district court erred in determining that code of si-
lence evidence was more prejudicial than probative, the court in Osborne
distinguished the case from its prior decision in United States v. Dick-
ens.261 In Dickens, the Court of Appeals for the Ninth Circuit reversed
the conviction of a defendant which was based in part on extensive ques. .
tioning of the defendant by the prosecutor ,on the defendant's alleged
connection to "the mob. " 268 The court held that the questioning was not
admissible because "the defendant's bias in his own behalf was self-evi-
dent," and because the questioning was not intended to show bias and
failed to demonstrate motive to lie or any bias with regard to the case. 269
Moreover, the court determined that the questioning was highly prejudi-
cial because it associated the defendant with a "mob" drug ring, support-
ing an improper inference of guilt by association. 270 The court in Os-

264. United States v. Cross, 928 F.2d 1030, 1048 (11th Cir. 1991) (quoting United States v.
Sawyer, 799 F.2d 1494, 1506 (11th Cir. 1986)); see also United States v. McRae, 593 F.2d 700, 707
(5th Cir. 1979).
265. See, e.g., Abel, 469 U.S. at 54 (rejecting claim that evidence of bias based on member-
ship in gang was more prejudicial than probative; the evidence "bore directly not only on the fact of
bias ·but also on the source and strength of [the] bias"); United States v. Keys, 899 F.2d 983, 987-88
(lOth Cir. 1990) (rejecting claim that evidence of possible retaliation based on gang membership was
more prejudicial .than probative, noting that "[c]redibility was crucial to the resolution of [the]
case").
266. See supra notes 205-20 and accompanying text (discussing Osborne).
267. 775 F.2d 1056 (9th Cir. 1985).
268. See. id. at 1059. !:
269. /d.
270. See id. at 1057-58.
288 UNIVERSITY OF PITISBURGH LAW REVIEW [Vol. 59:233

borne distinguished Dickens in three ways: first, the court noted that
unlike Dickens, the offered evidence suggested a motive for bias; second,
since the rights of a criminally accused defendant were not implicated, an
"inference of guilt" rationale carries much less weight in a civil suit;
and third, the code of silence evidence "does not carry the prejudicial
implications associated with criminal gangs; nor is any specific wrongdo-
ing imputed by association to the . . . witness. " 271
Moreover, the court determined that "in a civil rights suit alleging
police misconduct and cover-up, there are factors that favor admission of
the evidence [of bias]. " 272 Notably, the court recognized that jurors in an
excessive force case can be expected to have a ·"natural bias" in favor of
the truthfulness of the police officer defendants and against the
claimant.273
In light of these considerations, as well as the strong impact that re-
taliation through a code .of silence will have on the testimony of a police
officer testifying on behalf of a fellow officer, there is a powerful argu-
ment that extrinsic evidence relating to a witness's bias and motive to lie
in the form of a Commission report documenting the same should be ad-
mitted. As demonstrated in Osborne, the traditional concerns with the
prejudicial impact of such extrinsic evidence under the circumstances at
issue is mitigated, and admission of such evidence does not necessarily
run afoul of Rule 403 scrutiny.274 ,
In ·practice, impeachment on this basis would proceed like any other
case of impeachment of a witness when there was evidence that testi-
mony helpful to one party or the other might result in retaliation. Imag-
ine a hypothetical situation similar to the one involving Daniel Batista,
discussed supra at part II.A. A defendant in a criminal narcotics case,
Michael Blanchard, claims that Officer Jones, a witness against him, was
''doing doors''-breaking down the doors of drug dealers' apartments as
a prelude to robbery. Blanchard claims that narcotics were planted on
him to discredit him as a potential complaining witness and to provide
cover for Jones's presence in the building; Officer Jones claims the arrest
was both legitimate and based on probable cause. Officer Jones's partner,
Officer Smith, can confirm or deny Officer ·Jones's version of the events.

271. Osborne v. City of Long Beach, No. 87-6262, 1988 WL 141391, at *S (9th Cir. Dec. 20,
1988).
272. Jd.
273. See id. The court noted that "[i]t is counterintuitive to suspect officers holding such pub-
lic trust of collaborating to obstruct justice. On the other hand, the plaintiff in this type of suit has
typically been arrested at least once, and is often a member of a racial minority." ld.
274. See id. at *4-5.
1998] BLUE WALL OF S~ENCE 289

In either case, Smith could be telling the truth. But Blanchard's attorney
may be able to offer evidence which would give the jury a reasonable
basis to conclude that officers in the local department are subject to a
code of silence, and that if Officer Smith denies Jones's story, her career
is over and she may be subject to life-threatening retaliation. In this situ-
ation, the impeachment should be allowed, if the defendant can show that
there is a code of silence in this particular police department, and that
there are penalties for its violation of a magnitude which might induce an
officer to shade the truth.

C. The HJntractability" Problem and the Eyewitness Identification

Analogy

This article proposes that one reasonable approach to the problem of

code of silence testimony is by impeachment. of police witnesses through
the use of extrinsic evidence demonstrating the existence and effect of
the code, coupled with an instruction to the jury which draws attention to
the suspect nature of potentially biased or slanted testimony. Extrinsic ev-
idence will help the jury to understand that the code of silence exists in
some police departments, acts as a strong deterrent to officers called to
testify about the actions of colleagues, and provides an alternative expla-
nation for consistent testimony in cases where the acts of fellow officers
have been called into question.
Instructions concerning the general credibility of witnesses should
always be given to the jury,275 while other more specific instructions on
credibility, including those which contain a "cautionary tail," are not al-
ways required. 276 A general credibility instruction which directs jurors to
assess the extent to which they believe that the witnesses have bee:n in-
fluenced by bias or some other motive to lie should be sufficient to give

275. See 1 Dsvrrr BT AL., supra note 119, at 465 (introductory note); 1 id. § 15.01, at 467; 1
SAND BT AL., CRIMINAL, supra note 119, C)[ 7.01[1] cmt., at 7-4; 4 SAND BT AL., avo.., supra note 119,
'j[ 76.01[1] cmt., at 76-3; WASHINGTON PATTERN JURY INSTRUcriONS, CIVIL § 2.01 (3d ed. 1989);
WAsHINGTON PATI'BRN JURY INsTRucnoNs, CRIMINAL§ 6.01 (2d ed. 1994); see also Sartor v. Arkan-
sas Natural Gas Corp., 321 U.S. 620, 628 (1944) (" 'The jury were the judges of the credibility of
the witnesses ..• and in weighing their testimony had the right to determine how much dependence
was to be placed upon it.'") (quoting Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891)).
276. See 1 Dsvrrr BT AL., supra note 119, at 465. Whether specific credibility instructions in
individual cases are required or discretionary differs from jurisdiction to jurisdiction, and an exami-
nation of specific approaches is beyond the scope of this article. For a thorough treatment of this
area of the law, see 1 id. ch. 15; 1 SAND BT AL., CRIMINAL, supra note 119, 'II 7.01; 4 SAND BT AL.,
avo.., supra note 119, C)[ 76.01.
l I
290 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

the ·jury useful guidance in evaluating the credibility of police witnesses

and the weight to be given the witnesses' testimony.
Many general pattern credibility instructions include a provision in-
dicating to the jury that they should consider a witness's bias or
prejudice,277 and suggesting that jurors use common sense in determining

277. See, e.g., MODEL CRIMINAL JURY INSTRUCfiONS FOR TilE EIGIITH CIRCUIT, supra note 119,
§ 3.04, at 64; CoMM. ON MODEL CRIMINAL JURY INSTRUCfiONS WITHIN TilE NINTH CIRCUIT, MANuAL
OF MODEL CRIMINAL JURY INSTRUCfiONS FOR TilE DISTRICT COURTS OF TilE NINTH CIRCUIT § 3.07, at.
36 (1995); COMM. ON PATTERN CRIMINAL JURY INSTRUCfiONS, DISTRICT JUDGES Ass'N, SIXTH CIRCUIT,
PATTERN CRIMINAL JURY INSTRUCfiONS § 1.07, at 25 (1991) [hereinafter PAITBRN CRIMINAL JURY IN-
STRUCfiONS FOR TilE SIXTH CIRCUIT); 1 CoMM. ON STANDARD JURY INSTRUCTIONS, CiviL, OF TilE SUPE-
RIOR COURT OF Los ANGELES COUNTY, CALIFORNIA, CALIFORNIA JURY INSTRUCfiONS, CIVIL § 2.20, at
29 (1994); lwNOIS PATTERN JURY INSTRUCfiONS, CIVIL§ 2.01 (3d ed. 1989); WASHINGTON PATTERN
JURY INSTRUCfiONS, CIVIL, supra note 275, § 2.01; WASHINGTON PATIERN JURY INSTRUCTIONS, CRIMI-
NAL, supra note 275, § 6.01; 2 DoUGLASS B. WRIGHf & WILLIAM L. ANKERMAN, CoNNECilCUT JURY
INSTRUCTIONS (CIVIL) §§ 640, 641, at 1016-18 (4th ed. 1993) (hereinafter CONNECTICUT JURY IN-
STRUCfiONS]; 1 DEvrrr ET AL., supra note 119, § 15.01, at 466; 1 SAND ET AL., CRIMINAL, supra note
119, C( 7.01(1), at 7-3 to 7-4; 4 SAND ET AL., CIVIL, supra note 119, C( 76.01(1), at 76-2; CoMM. ON
PATTERN JURY INSTRUCTIONS, DISTRICT JUDGES Ass'N, FlFTH CIRCUIT, PATTERN JURY INSTRUCTIONS
(CRIMINAL CASES)§ 1.09, at 20 (1990); FEDERAL JUDICIAL CENTER, COMM. TO STUDY CRIMINAL JURY
INSTRUCfiONS, PATTERN CRIMINAL JURY INSTRUCfiONS § 23 (1982).
A common general instruction on the credibility of witnesses is worded in pertinent part as
follows:
You are the sole judges of the credibility of the witnesses and of the weight to be given to
the testimony of each of them. In determining the credit to be given any witness you may
take into account his ability and opportunity to observe, his memory, his matpter while testi-
fying, and interest, bias or prejudice he may have, and the reasonableness of his testimony
considered in light of all the evidence in the case.
ILLINOIS PATTERN JURY INSTRucnoNs, CIVIL, supra, § 2.01. Other pattern instructions expand a bit on
the various nonexhaustive factors that .the jury should consider. For example, Connecticut suggests
the following provision concerning bias and prejudice:
You may well ask yourselves in passing on the credibility of any witness whether that wit-
ness has any bias or prejudice ·as regards any party to the action, and if so, whether he has
permitted that bias or prejudice to color his testimony; and it of course does not follow sim-
ply from the fact that a witneS$ does have a bias, prejudice or does have an interest in the
outcome of the case that his testimony is to be. disbelieved. There are many people who, no
matter what their interest in the outcome of the case might be, would not testify falsely. One
[sic] the other hand, a jury should always bear in mind that, if a witness has a decided bias
or prejudice or has an interest in the ·outcome of the case, that bias or interest offers some-
thing of a temptation to sway or shade his own testimony as a result of it.
2 CoNNECTICUT JURY INSTRUCTIONS, supra, § 641(c) (footnote omitted). In Modern Federal Jury In-
structions, the authors provide specific, separate instructions on bias. See 1 SAND ET AL., CRIMINAL,
supra note 119, 1 7.01[1.], at 7-8 (instruction 7-2); 4 SAND ET AL., CIVIL, supra note 119, 1ft 76.01(1.],
at 76-10. These instructions, however, contain a form of "cautionary tail," which places their use in
relation to police witnesses in question. See supra part m.c. For example, the criminal instruction
on bias provides, in pertinent part: "Evidence that a witness is biased, prejudiced ·or hostile toward
the defendant requires you to view that witness' testimony with caution, to weigh it with care, and
subject it to close and searching scrutiny." 1 SAND ET AL., CRIMINAL, supra note 119, cg: 7.01[\], at 7•
8. The civil instruction is similar, providing that "you should consider evidence of any other interest
1998] BLUE WALL OF SILENCE 291

what testimony to accept or disregard.278 Thus, when presented with evi-

dence of a police code of silence enforced through retaliation coupled
with an appropriate instruction, jurors will be in a better position to eval-
uate the credibility of the witnesses before them.
This approach should ~crease the accuracy of criminal trials. Police
are no different from other members of institutions in that they have rea-
son not to say anything to harm the organization for which they work;
they are different from members of other institutions in that the conse-
quences of disobedience can be life-threatening. Jurors should know that
there may be multiple explanations for consistent and uniform police
testimony.
This proposed solution is straightforward and justified by existing
law. However, there may be more to the traditional judicial reluctance to
deal with police perjury than meets the eye.279 The hesitation of many
courts to d~al directly with police perjury may be understandable to a de-
gree. The Bush and Berrios courts, for example, no, doubt both deplored
police perjury and recognized that it led to injustices. But they may have
wanted to avoid introducing a significant element of uncertainty in crimi-
nal proceedings by acknowledging the problem while giving the
factfinder no help in solving it. The problem of police perjury in this re-
spect may be analogous to ·that of eyewitness identification testimony.
Both categories may well ·be inaccurate and lead to the conviction of the
innocent, in part because jurors ascribe too much credibility to the evi-
dence. Yet, both are subcategories of testimony which is often reliable,
and, as importantly, is indispensable. The criminal justice system would
shut down if eyewitnesses or police officers were precluded from testify-

or motive that the witness may have in cooperating with a particular party, •• and "[i]t is your duty
to consider whether the witness has permitted any such bias or interest to color his testimony. In
short. if you find that a witness is biased, you should view his testimony with caution, weigh it with
care and subject it to close and searching scrutiny." 4 SAND BT AL., CIVIL, supra note 119,
fj 76.01[1], at 76--10.
278. See, e.g., CoNNBCTicUT JURY INsTRucnoNs, supra note 277, §§ 640, 641, at 1016-18;
PATTBRN CR:iMINAL JURY INSTRUcnONS FOR THB SIXTII CIRcurr, supra note 277, § 1.07, ~t 26.
279. There is little to suggest that the actions of judges who do not aggressively deal with po-
lice perjury do so out of simple pro-prosecution bias. For example, judges J. Skelly Wright and
Spottswood Robinson concurred with then-Judge Warren Burger in the decision in Bush v. United
States, and both were defenders of individual rights. Judge Wright was famous for his liberalism.
See, e.g., Richard Parker, In Mei1Wriam: J. Skelly Wright, 102 IIARv. L. RBv. 367, 368 (1988) (not-
ing that Wright has been called "one of the great liberals of our time"); Patricia M. Wald, In
Me11Wriam: J. Skelly Wright, 102 IIARv. L. RBv. 363, 365 (1988) (noting that Wright was a member
of "a court that pioneered the expansion of the rights of criminal defendants"). Judge Robinson, a
distinguished civi1 rights litigator before being appointed to the bench, was co-counsel for the oppo-
nents of segregation in Brown v. Board of Education.
292 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

ing simply because of the possibility of inaccurate or misleading

testimony. 280
There is an important difference between the two, however, with re~
spect to ·the ability of the legal system to remedy them. The problem of
mistaken identifications is at least to some degree intractable; · imperfect
recall is. a feature of human memory. However, police perjury is not an
inevitable feature of the human condition, and this approach may en-
courage changes in police behavior which will reduce the incidence of
police perjury.
Eyewitness identification has been called "one of the most serious
problems in the administration of criminal justice and civil litigation. " 281
Courts282 and commentators283 frequently describe eyewitness identifica-
tion testimony as inherently unreliable. Although it is often unreliable,
juries fmd it very persuasive284 and give it unjustified weight. 285 Accord-

280. It may be true that it is better that 99 guilty people escape punishment rather than one
innocent person be unjustly convicted, see, e.g., SIDNEY HooK, PHILosoPHY AND PuBuc Poucy 135-
36 (1980), but even generally reliable evidence or procedures wiH result in tragic mistakes; this is
inevitable in any human system of criminal justice. Thus, while the system should strive for accu-
racy, it is .not a fatal criticism that it is not perfect.
281. ELIZABETH F. LoFTUS, EYEWITNESS TEsTIMONY 179 (1979). Elizabeth Loftus has been de-
scribed as "the most publicly visible expert in this country on the strengths and weaknesses of eye-
witness testimony." Ha11isey, supra note 178, at 245.
282. See, e.g., United States v. Wade, 388 U.S. 218, 228 (1967) ("[T]he vagaries of eyewit-
ness identification are weU-known.''); United States v. Telfaire, 469 F.2d 552, 555 (D.C. Cir. 1972)
(recognizing unreliability of eyewitness identifications); State v. Gaines, 926 P.2d 641, 645-49 (Kan.
1996) (discussing the problem of eyewitness identification in depth and concluding that expert testi-
mony regarding .such identifications should not be admitted); State v. Warren, 635 P.2d 1236, 1240
(Kan. 1980) (asserting that the "problem of the potential unreliability of eyewitnes$ identifications
has been with us for a long time").
283 .. See, e.g., FELIX FRANKFuRTER, THE CASE. OF SACCO AND VANZBrn 30 (1927); Roger B.
Handberg, Expert Testimony on Eyewitness Identification: A New Pair of Glasses for the Jury, 32
AM. CRIM. L. REv. 1013, 1014 (1995); Benjamin E. Rosenberg, Rethinking the Right to Due Process·
in Connection with Pretrial Identification Procedures: An Analysis and a Proposal, 19 KY. LJ. 259,
260 (1990-91); Wayne T. Westling, The Case for Expert Witness Assistance to the Jury in Eyewitness
Identification Cases, 71 OR. L. REv. 93, 95, 103 (1992); Christopher M. Walters, Comment, Admis-
sion of Expert Testimony on Eyewitness Identification, 73 CAUF. L. REv. 1402, 1403 (1985). See gen-
erally Gregory G. Sarno, Admissibility, At Criminal Prosecution, of Expert Testimony on Reliability
of Eyewitness Testimony, 46 A.L~R. 4th 1047 (1987 & Supp. 1997) (citing cases); D.E. Ytreberg, Ne-
cessity and Admissibility of Expert Testimony as to Credibility of Witnesses, 20 A.L.R. 3d 684 (1969
& Supp. 1996) (citing cases).
284. See Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting) ("[T)here is
almost nothing more convincing than a Jive human being who takes the stand, points a fmger at the
defendant, and says 'That's the one!'") (quoting LoFTUs, supra note 281, at.19); see also R.C.L.
Lindsay, Expectations of Eyewitness Performance: Jurors' Verdicts Do Not Follow from Their Be-
liefs, in ADULT EYEWITNESS TEsTIMONY 362 (David Frank Ross et al. eds., 1994); Westling, supra
note 283, at 95.
285. See, e.g., Kampshoff v. Smith, 698 F.2d 581, 587 (2d Cir. 1983); Handberg, supra note
 1998] BLUE WALL OF SILENCE 293

ingly, eyewitness identifications are a frequent cause of wrongful

convictions.286
Scientists have studied the reasons for the unreliability of eyewitness
identification. 287 Studies indicate that memory is a complex process
which involves several stages and is affected· by a number of factors
which can alter an eyewitness's perceptions or actual memory of an
event and render it unreliable.288 In essence, "the normal and universal
fallibilities of human sense perception and memory" and "the suscepti-'
bility of the human mind to suggestive influences" constitute the contrib-
uting factors to the problem of eyewitness identification.289 This analysis
of the inherent defects in human perception and memory, however, rec-
ognizes only half of the analysis of the problem-the problem of the
"primary identification error. " 290

283, at 1014; Westling, supra note 283, at 95; Cindy J. O'Hagan, Note, When Seeing is Not Believ-
ing: The Case for Eyewitness Expert Testimony, 81 GEO. LJ. 741, 742 (1993).
286. See Wade, 388 U.S. at 228 ("ff]he annals of criminal law are rife with instances of mis-
taken identification."); LoFJlJS, supra note 281, at 201; PATRICK M. WALL, EYE-WITNESs IDENTIFICA-
TION IN CRIMINAL CASES 19 (1965); Michael H. Hoftbeimer, Requiring Jury Instructions on Eyewit-
ness Identification Evidence at Federal Criminal Trials, 80 J. CRIM. L & CRIMINOLOGY 585, 585 &
n.1 (1989); ·Michael R. Leippe, The Case for Expert Testimony About Eyewitness Memory, 1
PsYCHOL. PuB. PoL'Y & L 909, 909 (1995); Maureen A. Gorman, Note & Comment, Evaluating
Eyewitness Testimony in Criminal Trials: Can Jurors Use Help From Experts? United States v.
Downing, 63 Cm.-KBNT L. REv. 137, 137 (1987); Brenda G. HamiltOn, Note, Expert Testimony on
the Reliability of Eyewitness Identifications: A Critical Analysis of its Admissibility, 54 Mo. L. REv.
734, 734 (1989); see also Hallisey, supra note 178, at 240 (noting that "[a]t the root of our criminal
justice system is the premise that '[i]t is far worse tO convict an innocent man than tO let a guilty
man go free'"); Handberg, supra note 283, at 1014 (citing study which estimated that half of all
. wrongful convictions result from misidentifications).
287. See, e.g., Hoftbeimer, supra note 286, at 587 n.6 (listing sociological and psychological
studies addressing problems of eyewitness misidentification); HamiltOn, supra note 286, at 735 n.13
(listing psychological research studies concerning unreliability of eyewitness identification).
288. See, e.g., Handberg, supra note 283, at 1017-18. Factors which may affect human percep-
tion and memory include:
(1) the "forgetting curve," which indicates that forgetting occurs rapidly and then tends tO
level out and that therefore immediate identification is much more trustworthy than delayed
identification; (2) "unconscious transfer," which occurs when the witness confuses a person
seen in one situation with a person seen in a different situation; (3) "post-event information,"
which occurs when a witness talks to others about the incident, and then incorporates new in-
formation intO his reconstruction .of the incident; (4) the effects of stress upon perception:
some psychologists maintain that, contrary to what most laymen believe, stress causes inaccu-
racy of perception; (5) contrary tO laymen's intuitive beliefs, some studies indicate that there
is no relationship between an eyewitness's confidence in his identification and the accuracy of
that identification; and (6) the "own-race effect," which indicates that persons of one race
have difficulty accurately identifying persons of another race.
Gorman, supra note 286, at 141-42; see, e.g., State v. Gaines, 926 P.2d 641, 645-49 (Kan.1996).
289. Westling, supra note 283, at 101.
290. Hoffheimer, supra note 286, at 587.
294 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:233

The second component to the analysis, the ''secondary identification

error," recognizes that "eyewitness identification evidence may be evalu-
ated erroneously by a factfinder-usually a jury-which in convicting
makes a secondary judgment of identity. " 291 Pursuant to this secondary
judgment of identity, jurors may perpetuate a primary identification error
at tria1.292
Courts and commentators have proposed a number of solutions de-
signed to remedy the problems of eyewitness identifications. They in-
clude: (1) excluding certain types of eyewitness testimony on the grounds
of unreliability; 293 (2) prohibiting convictions based "solely on eyewit-
ness identification testimony" and requiring corroboration; 294 (3) mandat-
ing that the jurors be given cautionary instructions; 295 and (4) permitting
expert psychological testimony regarding the issue of eyewitness identifi-
cation. 296 These proposed solutions have been criticized for various rea-
sons. Some object that ·exclusion for unreliability or requiring corrobora-
tion goes too far, because eyewitness testimony is often probative.297 ·

291. Id. at 588-90.

292. See id.
293. ·See LoFrUs, supra note 281, at 187; Fredric D. Woocher, Did Your Eyes Deceive You?
Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 STAN. L. REv.
969, 1000-01 (1977).
294. LoFilJS, supra note 281, at 187; see also WALL, supra note 286, at 182-93; Edward
Lasker: Comment, Pos~ible Procedural Safeguards Against Mistaken Identification by Eyewitnesses,
2 UCLA L. REv. 552, 557 n.23 (1955).
295. See LoFrUs, supra note 281, at 187. In United States v. Telfaire, 469 F.2d 552 (D.C. Cir.
1972), the United States Court of Appeals for the District of Columbia Circuit attached a model jury
instruction to its decision which included an instruction that the government must prove identity be-
yond a reasonable doubt See id. at 558. This instruction reminded the jury to consider the credibility
of the eyewitness in the same way the jury considers the credibility of any other witness and listed
three additional factors for the Jury to consider in determining the reliability of an eyewitness identi-
fication: (1) whether the eyewitness "had the capacity and an adequate opportunity to observe the
offender," (2) whether the identification "was the product of [the witness's] own recollection," and
(3) whether the eyewitness made any inconsistent identifications. /d. at 558-59.
296. See LoFrUs, supra note 281, at 187.
297. For example, commentators have argued that the exdusion of.all eyewitness identification
evidence is untenable for at least one obvious reason: eyewitness identifications may in fact be accu-
rate. See O'Hagan, supra .note 285, at 752. Therefore, a rule of exclusion "would radically alter the
detection and prosecution of offenses." Hoffheimer, supra note 286, at 593 n.27. In the interest of
fairness to victims of crime, . "it is both unadvisable and unrealistic to .expect courts to always ex-
clude them." O'Hagan, supra note 285, at 752.
The requirement of corroboration has also been attacked as "too harsh" a solution to the prob-
lem of the unreliability of eyewitness testimony because, even though an identification "may be pro-
bative, ... tl)e mandatory corroboration rule would exclude it" in the event of no corroboration. Ro-
senberg, supra note 283, at 308.
One conunentator recognized the possibility that jury instruction on the reliability of eyewitness
testimony may have an adverse effect on law enforcement by reducing the conviction rate of offend-
 I

1998] BLUE WALL OF SILENCE 295

Others argue that allowing expert testimony or requiring jury instructions

simply would not .work.
For example, while some commentators consider jury instructions to
be a promising solution to the problem of eyewitness identification,298
others have suggested that jury instructions function better in theory than
they do in practice. Some commentators argue that jurors do not give the
necessary consideration to jury instructions that is required for .them to
fully grasp the instructions' purpose,299 partially because they are often
"long and tedious. " 300 Moreover, even if jurors did give the requisite at-
tention to the instructions, the instructions may "not supply the jury with
any information that it can use in the task of evaluating the reliability of i il.
any particular eyewitness account. " 301 Furthermore, jury instructions are !:1. [..
given at' the end of the presentation of the evidence, after . most jurors
have made their decisions with regard to the case.302 Additionally, "most
courts have refused to allow defendants to use expert. testimony on eye-
witness identification, " 303 excluding it most commonly on the grounds r
that it is within the common knowledge of the jury,304 that it is too gen-
eral to assist the jury,305 or that its probative value is substantially out-
weighed by unfair prejudice. 306

ers. See Hoftbeirner, supra note 286, at 596-98.

298. See, e.g., Handberg, supra note 283, at 1060-61 (asserting that "the best way to deliver a
message to the jury is through the judge").
299. See LoFI'Us, supra note 281, at 190; Rosenberg, supra note 283, at 310.
300. LoFI'US, supra note 281, at 190; see also Handberg, supra note 283, at 1061; O'Hagan,
supra note 285, at 753.
301. LoFI'Us, supra note 281, at 189-90; see also O'Hagan, supra note 285, at 754 (asserting
that "while the [Telfaire] instruction includes a list of factors that might contribute to misidentifica-
tion, it does not explain the possible impact these factors may have on memory accuracy").
302. See Woocher, supra note 293, at 1005; O'Hagan, supra note 285, at 753-54.
303. Handberg, supra note 283, at 1015; see also O'Hagan, supra note 285, at 757; Walters,
supra note 283, at 1408-09.
· 304. See, e.g., United States v. Hudson, 884 F.2d 1016, 1024 (7th Cir. 1989); United States v.
Purham, 725 F.2d 450, 454 (8th Cir. 1984); United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.
1973); see also Gonnan, supra note 286, at 153 (noting that those skeptical of the use of expert tes-
timony assert that "since 'everybody knows' that witnesses can be mistaken, there is no need for an
expert to testify to that phenomenon").
305. See, e.g., United States v. Serna, 799 F.2d 842, 850 (2d Cir. 1986) (holding that expert
testimony on eyewitness identification excluded under Rule 702 of the Federal Rules of Evidence
because it consisted of only "general pronouncements" which would be of no assistance to the jury).
306. See, e.g., United States v. Posher, 590 F.2d 381, 382 (1st Cir. 1979). Commentators, how-
ever, have often supported the use of expert psychological testimony on eyewitness identification.
See LoFI'US, supra note 281, at 201 (stating that allowing the jury to hear expert testimony on the
factors affecting the reliability of eyewitness identification evidence appears to be a more satisfactory
l
i'
solution than excluding such evidence, requiring corroboration, or cautionary instructions); Robert
Buckhout, Eyewitness Testimony, 231 SCI. AM. 23-31 (1974) (advocates admitting expert testimony
296 UNIVERSITY OF PI'ITSBURGH LAW REVIEW [Vol. 59:233

The problem with eyewitness identification, then, is that there is no

cure to its inherent unreliability. There is now no mechanism by which
the court or jury can determine for sure whether an identification, a
memory, is accurate. 307 Thus, "[b]ecause the human mind functions as it
does, problems with eyewitness identification will persist. " 308 Moreover,

on eyewitness identification on grounds that it is the province of the jury to decide whether to accept
or reject it); Handberg, supra note 283, at 1015 (arguing that courts should admit expert testimony
on eyewitness identification); Woocher, supra note 293, at 1006 (asserting that admission of expert
psychological testimony provides the "proper safeguard" for identification concerns); Walters, supra
note 283, at 1420. One commentator has argued that those in support of the exclusion of expert testi-
mony ignore three important considerations:
(1) the fact that eyewitness testimony is so powerful that it can cause a jury to disregard
other exculpatory evidence . . .; (2) the existence of numerous scientific studies that indicate
that several factors affecting perception, memory and recall are not known .to the average ju-
ror and in fact are contrary to commonly-held intuitive beliefs; and (3) the obvious impor-
tance of what is at stake-the liberty and even life of the defendant on trial.
Gonnan, supra note 286, at 153 (footnotes omitted). According to another commentator,
"[p]sychologists have found that expert testimony about eyewitness identification assists jurors in ap-
preciating and applying the appropriate scientific principles in specific cases." Handberg, supra note
283, at 1022. A few courts have accepted the use of expert eyewitness testimony, but have imposed
limitations on its use. See, e.g., United States v. Downing, 753 F.2d 1224, 1242-43 (3d Cir. 1985)
(holding eyewitness testimony permitted, but limiting scope to give trial court right to exclude testi-
mony _under Rule 403, and requiring that testimony be "s.ufficiently tied to the facts of the case").
If an expert's testimony regarding the reliability of an eyewitness identification is admitted, the
expert will generally become "a tutor for the jury," Walters, supra note 283, at 1406, to explain the
unreliability involved in the memory process and relay the different factors that are involved in dis-
tortion of perception and memory retrieval. See O'Hagan, supra note 285, at 755-56; Walters, supra
note 283, at 1407. See supra note 288 listing the factors that may affect'human perception and mem-
ory. Such testimony will not provide an opinion .regarding the accuracy of an identification. See
Westling, supra note 283, at 104; Gorman, supra note 286, at 142; O'Hagan, supra note 285, at 755.
Rather, the expert will present to the jurors the scientific data regarding memory and perception in
order to assist them in properly evaluating the eyewitness testimony. See Westling, supra note 283,
at 104; Gorman, supra note 286, at 142. Studies have indicated that expert psychological testimony
in these cases significantly influences jurors' beliefs concerning memory and perception accuracy.
See O'Hagan, supra note 285, at 756 (citing Harmon M. Hosch et al., Influence of Expert Testimony
Regarding Eyewitness Accuracy on Jury Decisions, 4 LAW & HUM. BBHAV. 287, 294 (1980)). But see
Michael McCloskey & Howard Egeth, Eyewitness ldentificatjon-What Can a Psychologist Tell a
Jury?, 38 AM. PsYCHOL. 550, 550 (1983) (asserting that "it is by no means clear that expert psycho-
logical testimony about eyewitnesses would improve jurors' ability to evaluate eyewitness testi-
mony"). According to one commentator, one study indicated that jurors lessened the significance of
eyewitness testimony in relation to other testimony. See O'Hagan, supra note 285, at 756 (quoting
Hosch et al., supra, at 294). In other studies, psychologists concluded that jurors take note of factors
presented by the expert and" 'rely less on the confidence of the witness.'" /d. (quoting Steven D.
Penrod & Brian L. Cutler, Eyewitness Expert Testimony and Jury Decisionmaking, 52 LAW & CoN-
TEMP. PROBS. 43, 44 (1989)).
307. See O'Hagan, supra note 285, at 744; 747 (asserting that eyewitness testimony, like sta-
tistical evidence (which can never be admitted to prove identity in criminal cases), always retains a
risk of error).
308. Westling, supra note 283, at 103.
1998] BLUE WALL OF Sll..ENCE 297

the "solutions" 309 to eyewitness identification proposed by commentators

and courts do not solve the problem at all, at least not fully-they
merely attempt to define the problem for the jury in the hope that the
jury can then adequately distinguish between accurate and inaccurate eye-
witness identifications. But the accuracy and inaccuracy of the eyewit-
ness's perceptions themselves, the "primary identification error[s]," 310
can never be altered. Thus, although the expert testimony or jury instruc-
tion may help to ·identify for the jury the problem areas of the eyewit-
ness's memory or perception,311 this will merely aid in averting a "secon-
dary identification error. "312
Furthermore, the "solutions" to eyewitness identification may often
yield negative results. To illustrate, consider that, presumably in a juris-
diction that would allow expert testimony or jury instruction in an eye-
witness identification case, the expert testimony or instruction would be
admitted in each such case. But where there is no way to discern which
cases will involve an erroneous eyewitness identification and which cases
will not, admission of expert testimony or the submission of jury instruc-
tions may, in some cases, achieve adverse results by dulling the impact
of accurate identification testimony.313
In police code of silence cases, however, there will be evidence of a
specific distorting influence, namely, a code of silence enforced through
retaliation. Even in jurisdictions hesitant to question eyewitness testimony
in general, a particular eyewitness may be freely impeached on the
ground that intoxication or poor eyesight might have affected his or her
ability to perceive and recall the events at issue. Similarly, in the context
of police testimony, impeachment based on the existence of a code of si-
lence will rest on a specific predicate applicable to the particular case.
This proposal would offer some of the benefits of an intriguing idea
recently proposed to deal with the problem of police perjury in the spe-
cific context of suppression hearings. Professor Donald Dripps suggests
that "courts ... should admit expert testimony based on polygraph ex-

309. See supra notes 293-96. and accompanying text.

310. Hoftbeimer, supra note 286, at 587. See supra notes 287-92 and accompanying text (dis-
cussing primary and secondary identification error).
311. See supra note 288 for a non-exhaustive list of factors that may impact on an eyewit-
ness's memory and perceptions.
312. Hoftbeimer, supra note 286, at 588-89.
313. See, e.g., McCloskey & Bgeth, supra note 306, at 556 (asserting that one study indicated
that expert testimony had "absolutely no effect on jurors' ability to discriminate accurate from inac-
curate witnesses," and that the expert testimony merely appeared to reduce jurors' overall willing-
ness to believe eyewitnesses).
 298 UNIVERSITY OF PmSBURGH LAW REVIEW [Vol. 59:233

aminations, and draw an adverse inference from the failure to introduce

such evidence, whenever the outcome of the dispute depends on the cred-
ibility of conflicting testimony given by the defendant and the police. " 314
One of the advantages to this approach is that it may alleviate the con-
cerns that often cause judges to refrain from calling into question a po-
lice officer's credibility-it would allow the judge to effectively question
the witness's candor while shifting the blame for doing so to the poly-
graph examinations themselves.315 Moreover, this approach might system-
atically influence police behavior because "[t]he police may tell
straighter stories to prosecutors before the hearing if they know that the
story might be· tested by a safeguard more material than the oath. " 316 In-
deed, the rule of polygraph admissibility would ·provide officers With the
incentive to actively avoid "swearing contests," rather than encourage
them, by "record[ing] the facts in a reliable way. " 317
Similarly, impeachment coupled with a jury instruction in code of
silence perjury cases will encourage prosecutors and police executives to
break down the blue wall of silence. The proposal has the virtue of not
putting prosecutors or judges in the awkward position of appearing to
. personally question the credibility of police officers. The instruction will
help '" aaaress the problem of code of silence perjury in individual · cases,
while working toward alleviating the code's stronghold on a police force.
First, "[a]n officer who understands that his testimony will be critically
examined for signs · of perjury may be less likely to misrepresent the
facts. " 318 Second, the jury instruction may motivate prosecutors and po-
lice executives to encourage police officers to act within the bounds of
the law when .dealing with suspects. The impeachment of a police wit-
. ness c~upled with a credibility instruction which indicates that an of-
ficer's testimony should be examined for bias, prejudice, or a motive to
lie will undoubtedly send a message to jurors that there may be other ex-
planations for consistent police testimony. Thus, when officers realize
that their mechanism for evading responsibility for implicating others'
misconduct is imperiled, they may choose to adjust their actions
acco~dingly.

314. Dripps, supra note 12, at 693. Professor Dripps recognizes the pervasiveness of both
dropsy-type police perjury and code of silence perjury. See id. at 698-704.
315. See id. at 710.
316. ld.
317. Id. at 715.
318. Comment, supra note 12, at 523.
 II,,
I

1998] BLUE WALL OF SILENCE 299

Admission. of proof of bias and motive to lie combined with such a

jury instruction might help pierce the code of silence and start officers in
corruption-prone police departments across the nation on a path toward
truthfulness in the courts. Once a police department breaks down the blue
wall of silence, a motive to lie jury instruction would no longer be ap-
propriate or necessary.

V. CONCLUSION
Although the police code of silence has been exposed through both
the Mollen Commission and the Christopher Commission reports, and
through news media coverage, court treatment, and scholarly commen-
tary,319 it has remained a deeply ingrained problem throughout the na-
tion's police forces. There is clearly no quick ftx to the problem, and it
will likely remain a concern unless it is confronted. The framework out-
lined in this article fashions a mechanism to address the problems of
code of silence perjury, to effect a change in the way police officers ap-
proach the judicial oath, and even to effect a change in the extrajudicial
conduct of police. Recognition of the problem and an appropriate solu-
tion, however, must first be embraced by the courts. Historical reluctance
to view police testimony with suspicion is the cornerstone to many court
decisions which place roadblocks along the way towards establishing po-
lice veracity on the witnes~ stand. As envisioned by then-Judge Warren
Burger, it is truly "a dismal reflection on society to say that when the
guardians of its security ~ called to testify in court under oath, their
testimony must be viewed with suspicion. " 320 But in light of the wealth
of evidence demonstrating the existence of inherent problems with police
cultural development and .departmental matrices throughout the nation,
this dismal reflection appears to be well placed. Indeed, "it is an admira-
ble society which is not afraid to recognize its shortcomings, and which
takes appropriate steps to remedy them. " 321

319. See supra notes 16-19 and accompanying text.

320. Bush v. United States, 375 F.2d 602, 604 (D.C. Cir. 1967).
321. Comment, supra note 12, at 520.