Law Enforcement: Demanding a High Ethical Standard

Ethics

Introduction

Police officers lie; that is an established fact. However, it is important to establish when an officer who lies has damaged his credibility and when he is doing his job. The context of the “fibbing” will guide whether a police organization will sanction the officer involved or commend his resourcefulness. Lying can be “good police work” or detrimental to the credibility of the officer, his organization, his profession, and the criminal justice system.

When the nature of the lie damages the credibility of the officer, some would argue his career is essentially over. How can he ever credibly bring a case against a perpetrator again? His character is forever impeachable. A law enforcement organization that employs such an officer is employing a public servant who cannot fulfill 100% of his job responsibilities. Since he cannot credibly enforce the law, see it through to prosecution and adjudication, or remove crime threats from his community, no community should be forced to employ him.

A police officer’s credibility is crucial. As a steward of the criminal justice system, the public places great trust in the law enforcement officer. The courts, too, assume the honesty of a police officer in court proceedings. His word has the power to deprive citizens of their liberty. It is no small matter; an officer must be expected to be truthful. Information provided by a police officer sets off a whole chain of events—it affects the decisions made by other fellow officers and supervisors, it affects the trust established within the community, it affects the prosecutorial decisions of the court system, and it can affect the rendering of a verdict in court. It must be truthful and reliable.

The ramifications of a police officer lying, for good or ill, are serious. Law enforcement administrators must properly consider their effect. Thus, the question must be asked and answered: how should we act when a law enforcement officer lies? What is fair and just?

Fairness

Not all lies are ill-conceived. In some law enforcement context lies are acceptable—and courts have upheld them as such—in others they are not. For example, it is acceptable—and legal—for officers to lie about witnesses or evidence which does not exist in the hopes of eliciting a confession from a suspect, especially when the suspect knows he is guilty. In contrast, however, it should never considered acceptable to lie in a formal setting. Some examples will illustrate:

  • Falsely testifying in court, on an affidavit, or during a formal legal or department process.
  • Fabrication of evidence or testimony to implicate another in a criminal act.
  • Failing to bring forward information about the criminal or unethical activity of other officers, observing the unwritten “code of silence.” A citizen behaving in like manner would likely be charged as an accessory to a crime, or obstructing justice.

The above would be considered intentional, malicious, or deceptive conduct. These examples can—and should—forever impeach an officer’s credibility. It is unethical behavior, plain and simple. It is never justified. But, in the interest of fairness, the above examples should not be placed alongside deceptive practices that have been found to have legitimate and legal foundation which makes them acceptable.

Lasting Effects

Officers who lie in an unethical fashion create and perpetuate distrust with the criminal justice system and the officers who serve to manage it. This cannot be allowed to happen. Ethical breaches interfere with the fair administration of justice and should be exposed, confronted, and eliminated.

Thus, it makes sense—and may even make it imperative—to establish policies that issue severe consequences—including termination—against officers who lie in situations which damage the integrity of the criminal justice system. If the deceit rises to the level of criminal behavior (i.e. perjury)? It must be forwarded for prosecution.

Such policies should serve—first and foremost—as a deterrent to perjurious behavior. Secondly, such policies should be motivated by protecting the integrity of the criminal justice system. No one, not even law enforcement, is above the law.

There is public and legal support for such efforts. Sanctions against officers who lie have been upheld in the court. The U.S. Supreme Court laid the legal foundation for departments to terminate officers who are deceitful in LaChance v. Erickson (1998) and departments are increasingly applying this legal standard. Some state statutes have also been established in response to this precedent, allowing police officers in some states who have been proven to be deceitful to be de-certified as law enforcement officers.

Questions of Credibility

The criminal justice system undergirds its authority by its credibility, or at least it should. The following U.S. Supreme Court cases have established the foundation which emphasizes the importance of this credibility by ensuring that all law enforcement officers are truthful in their performance of law enforcement duties:

  • Brady v. Maryland—a prosecutor must turn over to the defense evidence favorable to the accused. The credibility—or lack thereof—of a police officer can, indeed, be favorable to the defense if that officer has a record of deceitfulness.
  • Giglio v. United States—the reliability of a witness can be determinative of guilt or innocence. A law enforcement agency is required to turn over to prosecutors information that has established that a law enforcement officer has demonstrated a pattern of deceptive behavior, however minor.
  • United States v. Agurs—the prosecution has a responsibility to voluntarily provide exculpatory information to defense counsel.
  • Kyles v. Whitney—the prosecution has an obligation to learn of any favorable evidence for the defense known to others acting on the government’s behalf, including the police.

The conclusions drawn from these cases should be simple: an officer with a record of deceitfulness may discredit any investigation, evidence, or testimony involving the officer before a judge or jury. A police agency has a legal responsibility to provide any evidence of this behavior to the prosecutor, who then has an obligation to turn it over to the defense counsel. If the credibility of the officer is damaged enough, the prosecutor may choose not to prosecute a case because it will be difficult to convince a jury that the evidence connected to the officer is reliable and determinative of guilt. These legal safeguards should serve—hopefully—to deter a law enforcement officer from behaving unethically, not only in a particular case, but in any way whatsoever that would call his credibility into question.

Recommendations

Law enforcement officers who have sworn to uphold the Constitution—the foundation of truth in our legal system—and are found to be intentionally deceptive in official documents, police reports, statements, administrative or other official hearings, or in court should expect to be terminated as a matter of department policy.

To avoid confronting this issue, ethics and ethical decision-making training should be a yearly goal. This should not be just “lip-service” training. It should be emphasized that all law enforcement officers have a legal and moral obligation to act legally, responsibly, and ethically. This is the professional standard that should be incorporated and modeled with every law enforcement organization and it is an organization’s responsibility to indoctrinate agency members with this high expectation of organizational ethics.

The public expects—and deserves—law enforcement agencies to maintain a force of officers who embody and embrace ethics dogmatically—not situationally. It is a high standard—and one that accepts that sometimes the guilty will go free. This may be hard to accept, but it is a better outcome than the alternative: a complete distrust of the system because the stewards of that system are not trustworthy.

Conclusion

America’s criminal justice system relies on truth. Thus, the law enforcement professional must comport himself in a way that reflects this commitment. It is a fact of human nature that, in this lifetime, truth does not always prevail. It is a natural inclination to want to “help” justice along by manipulating the truth to reach a desired outcome—especially if we are sure that justice will be denied if we do not. This may seem noble…but it’s not. It weakens the system and breeds distrust.

In a quest to ensure justice, attempts to skew the facts, color their presentation, or manipulate their display calls the whole system into question. If this is allowed in one case, it is fair to assume that it may be present in every case. Where, then, is the foundation? Where, then, is the unmovable ethical standard on which we must rely? If the standard is always changing, then we cannot expect to find any decision trustworthy. We cannot allow that. Our justice system is based on truth. We must expect our law enforcement professionals to uphold it.

(C) 2018. All rights reserved.

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