New York Times Investigation Spotlights NYPD Practice of ‘Testilying’
by Derek Gilna
An extensive New York Times investigation of the New York Police Department has uncovered that “at least 25 instances were found where judges or prosecutors reportedly determined that a cop’s testimony was likely untrue or embellished” since January 2015. It’s what observers commonly refer to as “testilying.” According to NYPD Officer Pedro Serrano: “You take the truth and stretch it out a little bit.”
Officers take advantage of the fact that such a high percentage of criminal cases, especially with indigent defendants, generally end with a negotiated plea rather than a trial. As a result, many of the exaggerations and false statements are never subject to cross-examination and exposure, and the conduct carries over into the next case. However, the practice consists of more than just stretching the truth—it often crosses over into the more insidious practice of planting evidence, manufacturing testimony, and falsifying lineups.
The deceptive practices are taking place in an era when a majority of people have cellphone cameras, and few arrests or police encounters are not subject to some form of video recording. The widespread use of surveillance video on private and public premises, not to mention dashcam video and bodycams, also complicates the concealment of police misconduct.
Nonetheless, one Brooklyn officer told the Times, “There’s no fear of being caught. You’re not going to go to trial and nobody is going to be cross-examined.”
Lawrence Byrne, a legal spokesman for the NYPD, maintains that, “it’s harder for a cop to lie today. There is virtually no enforcement encounter where there isn’t immediate video of what the officers are doing,” he said, saying that it’s a product of a “bygone era.” Or is it?
Despite the assertions of Byrne that, “Our goal is always, always zero,” of the “testilying” instances, it appears to still happen on an all-too-regular basis. The Times uncovered numerous instances where police officers embellished testimony or planted drugs or weapons on innocent individuals, and then lied about it.
In most instances where police are caught engaging in misconduct, prosecutors dismiss the charges and seek to seal the case. The Times reports that these summary dispositions of tainted cases make the tracking of police misconduct almost impossible, but the result of this misconduct is substantial. Ethics-challenged cops leave in their wake dozens of innocent individuals whose lives have been turned upside-down by the expense and life disruptions caused by defending themselves in court.
These instances of misconduct have other unfortunate effects on the criminal justice system. According to the Times, “Police lying raises the likelihood that the innocent end up in jail—and that as juries and judges come to regard the police as less credible, or as cases are dismissed when the lies are discovered, the guilty will go free. Police falsehoods also impede judges’ efforts to enforce constitutional limits on police searches and seizures.”
The Times found that officers lied not only to attempt to “tip the scales of justice” toward guilt, but also to defeat the “exclusionary rule” that mandates that illegally seized evidence be excluded from consideration in a criminal case. Recently, however, there have been cases in which NYPD officers have paid a price for their falsehoods.
According to the Times, “Earlier this month, two veteran NYPD detectives were indicted on charges of official misconduct and filing false paperwork for lying about a drug deal that went down in Queens.” A Brooklyn detective also was indicted on federal perjury charges, accused of attempting to “conceal the fact that he had falsified documentation” related to the photo lineups.
Another Brooklyn officer, speaking anonymously, said: “You’re either a ‘lie guy’ or you’re not” and that he had been pressed to embellish the facts of drug arrests and manufacturing “probable cause” to avoid the arrests being dismissed in a suppression hearing.
The question we should all ask ourselves is whether the misconduct of NYPD officers is unique to that city, or whether it is, in fact, engrained in the DNA of police departments in other cities and jurisdictions as well. It is certainly a question that deserves to be answered.
Sources: nypost.com, nytimes.com