(a) Judges foster lawful policing when they:
- (1) evaluate thoroughly, fairly, and impartially, without any presumption of credibility, all evidence offered by officers, including testimony in pretrial hearings, trials, and other formal proceedings, in sworn statements, and in affidavits associated with applications for warrants and other orders;
- (2) enforce fully legal requirements that obligate prosecutors’ offices and policing agencies to disclose information to a criminal defendant;
- (3) assess thoroughly, fairly, and impartially whether police officers and prosecutors have complied with their obligations of truthfulness and disclosure, document diligently any noncompliance with those obligations, and—as appropriate—impose sanctions for violations;
- (4) assess thoroughly, fairly, and impartially any assertions officers make of legal privileges or immunities; and
- (5) scrutinize applications for warrants or other like court orders with care, giving them the attention and deliberation they are due in light of the significant individual interests at stake.
(b) The judiciary, as an institution, can foster sound and lawful policing by identifying, evaluating, and adopting systemic practices such as:
- (1) establishing case-assignment procedures to eliminate or minimize judge-shopping at any stage of proceedings, including the warrant docket;
- (2) fostering transparency in the adjudicative process, including providing to the public data relevant to sound policing, see § 14.10, and minimizing nondisclosure orders regarding policing practices, see § 2.05(c);
- (3) developing mechanisms and protocols by which individual judges can take note of, and report, instances of unlawful conduct by officers in the performance of their official duties; and
- (4) providing judges with useful educational resources, including training, to help them adhere to the responsibilities set out in subsection (a).
Comment:
a. The role of the judge and the judiciary. Much of the responsibility for promoting sound policing rests with other actors, as these Principles make clear. That said, judges are charged with an important role in promoting lawful policing, and actions they take (or fail to take) can detract from lawful policing. In addition, the judiciary, as an institution, can adopt measures that promote sound and lawful policing. “Lawful policing” is policing that occurs within the requirements of the state and federal constitutions, statutes, and governing precedents; “sound policing,” as defined in § 14.01, Comment a, sweeps more broadly. Subsection (a), discussed in Comments b through i, concerns the actions and responsibilities of individual judges. Subsection (b), discussed in Comment j, speaks to actions that can be taken by the judiciary as a whole.
b. Domain of relevant cases. Although issues regarding policing obviously arise in criminal cases, including during suppression hearings, such cases are not the only cases in which officers and other government officials participate or in which lawful policing is implicated. Evidence provided by officers often is critical in other affirmative litigation by the government, such as that arising from immigration or tax enforcement. Officer truthfulness and candor often are critical to appropriate resolution of litigation that concerns the legality of police conduct, such as criminal prosecutions of officers, private actions for damages, and equitable actions against officers and municipalities. The obligations of prosecutors and other public lawyers, as set out in § 14.05, also are implicated in litigation outside of criminal cases. Thus, this Section concerns judicial obligations not only in criminal cases, but in all other cases in which lawful policing is implicated. In addition, there are some aspects of the criminal adjudication process in which judges play more of a supervisory role over police investigations than a role as neutral adjudicator, such as in the granting or disapproving of warrants.
c. Definition of “policing officials.” These Principles adopt a functional, rather than formal, test in defining “policing” agencies. See § 1.01. Although for the most part these Principles are directed at policing agencies and their personnel, they recognize that in some circumstances—particularly in the course of investigations—lawyers perform policing functions. Prosecutors direct police investigative actions, and lawyers in both private and public settings work with police to ensure evidence is accurate and truthful and discovery obligations are met. Thus, the integrity and lawfulness of the policing function will depend in some instances on the actions of lawyers. As such, “policing officials” as used in this Section includes such lawyers when they act in concert with the police in conducting investigations, presenting evidence, and performing discovery obligations. See also § 14.05 (obligations of prosecutors in fostering sound policing).
d. Evaluating evidence provided by officers. Sworn statements and testimony by officers are central to a range of legal proceedings, including: applications for warrants that justify government intrusions; criminal trials that assess guilt and appropriate punishment; and civil trials and pretrial hearings in criminal cases that determine the applicability of constitutional rules to officer conduct. In these settings, judges often are called upon to evaluate officer-provided evidence, officer credibility, and officer basis of knowledge.
Emphasis is placed on these necessary actions by judges, because research and case law have documented many instances of policing officials engaging in deceptive, false, and untruthful conduct. That conduct has included planting evidence, falsifying police reports, failing to disclose evidence to prosecutors, and lying or tailoring testimony under oath. These corrupt and unlawful practices make a mockery of adjudicatory proceedings, compromise public trust in the fairness of the criminal legal system, and undermine the rule of law. They also can lead to enormous harm, as in the case of no-knock warrants issued based on representations that proved to be false. In some instances, as indicated in the Reporters’ Notes to this Section, judges have enabled police misconduct by failing to scrutinize officer testimony or affidavits sufficiently, failing to enforce constitutional and legal rights involving officers, or neglecting to document and hold officers accountable when they discover misconduct. Although judges are of course obligated to scrutinize carefully the testimony of all witnesses, including criminal defendants, lawful policing (the subject of these Principles) is promoted when they ensure to the best of their ability that the testimony of officers is truthful and credible; even if judges face inevitable limitations in assessing the truthfulness and legality of officer conduct, including, for example, the burdens of overcrowded dockets. Still, the simple and inescapable fact is that both the adjudication of individual cases and the integrity of the judicial system require careful evaluation of officer conduct and testimony.
Even when officers are truthful, judges still should take special care in evaluating warrant applications given the individual interests at stake when those warrants are issued. This particularly is the case with “no-knock” warrants, which authorize police to forcibly enter residences and other venues without giving occupants an opportunity to comply. The execution of no-knock warrants—often by officers in tactical gear, using heavy weaponry—creates a serious risk of death and serious injury not only to the targets of the search, but also to officers and innocent bystanders. These warrants should only be used—if at all—in cases in which they are absolutely essential.
e. Assessing officer claims of immunity. Judges frequently confront matters in which officers assert legal privileges or immunities, including in criminal cases against officers, and in civil cases, stemming from state or federal qualified immunity. Judges can foster lawful policing by thoroughly, fairly, and impartially examining the basis for such claims.
f. Enforcing disclosure obligations. Existing constitutional and statutory law imposes significant obligations on the government to provide information to criminal defendants and civil plaintiffs alike. These obligations help to protect the integrity of criminal and civil proceedings and to promote just results. Although discovery obligations often are conceived as obligations belonging primarily to prosecutors, the government cannot fulfill its obligations unless officers and other policing officials properly collect, document, retain, and timely disclose exculpatory and impeachment evidence to which criminal defendants have a right. Yet, there is ample evidence that the government sometimes violates its criminal-discovery obligations, threatening the integrity of the justice system and at times causing tragic results, such as wrongful convictions.
Given the individual and systemic consequences of failure to fulfill disclosure obligations, judicial attention to these obligations is essential. Yet, as the Reporters’ Notes to this Section indicate, judges sometimes have failed to take sufficient care that the government and its officers comply with discovery and disclosure obligations. Judges can facilitate sound policing by adhering to a set of procedures that ensures compliance by officers and lawyers with discovery obligations. Judges can investigate instances of possible noncompliance with discovery obligations when they arise, and declare mistrials of cases or retry cases in which such noncompliance justifies that result. When a suggestion of noncompliance arises, judges can and should investigate. Cases should be mis-tried or retried if it is demonstrated that noncompliance could affect the outcome. Officials that violate their obligations should face discipline, and if noncompliance is knowing or intentional, it should be punished. Sanctions could range from publicly reprimanding prosecutors who fail to comply with their duties, to barring or suspending prosecutors from appearing before the judge, to contempt. Relevant disciplinary bodies always should be notified of misconduct.
g. Imposing lawful remedies. Although, as indicated in § 14.03, legislative bodies have primary responsibility for crafting remedial regimes, judges have a role to play as well. When statutory remedial schemes make remedies available, those regimes will fail in their purpose if judges do not apply them in appropriate cases.
h. Awareness of biases in adjudicative process. Lawful and sound policing are facilitated if judges, in performing their obligations, keep in mind some systemic biases that can affect both the outcome of cases and the law governing policing. Judges adjudicating individual cases must do so neutrally and without bias. That much is a given. But even in the context of individual cases, there are systemic challenges that present themselves. For example, in adjudicating suppression motions, judges may tend to credit the efficacy of police practices that have turned up evidence against an accused. After all, the evidence in the case before them suggests the practice was efficacious. Yet, judges can be cognizant of the fact that they typically do not have before them any evidence regarding the number of times a tactic has been employed without similar success. This particularly is the case when the governing law instructs judges to weigh the value of a practice to the government’s law-enforcement efforts against concerns such as individual privacy or freedom from government intrusion. As an antidote to this unavoidable systemic bias, judges can be cognizant that they only see an instance in which a given practice turned up evidence. Similarly, they can be aware that the opinion written to resolve one case will have an impact on future cases, and draft their opinion cognizant of that fact, including by indicating where there is a shortage of information in the record before them. In appropriate cases, judges can seek from the government broader evidence about how often a particular tactic is used, and to what effect. If the government does not know, that fact alone may be telling.
i. Implicit biases of individual judges. It is one of the most fundamental tenets of due process that the administration of justice be “neutral.” An adjudication fails in its most basic requirement if it does not occur before an unbiased judge. As the U.S. Supreme Court frequently has admonished, warrants and other orders must be awarded (if at all) by a “neutral magistrate.” Yet, research and scholarship establish what we of course understand, which is that judges are human, and unavoidably have human biases of which they—like all people—may not be fully conscious. In adjudicating cases, judges should try to be attentive to these biases and adopt procedures and practices that work against them. For example, as scholarship detailed in the Reporters’ Notes to this Section suggests, judges can structure decisionmaking processes to avoid situational triggers of bias by prioritizing careful, deliberative processing of information over speed and efficiency; establishing clear criteria for decision-making ahead of time; and minimizing distractions, stress, and time pressure when making tough judgments.
j. The judiciary and systemic reform. On a day-to-day basis, individual judges bear the responsibility for ensuring the integrity of the system of adjudication as it relates to policing. But these Principles have identified issues in which the judiciary as an institution could address judicial practices outside the context of the adjudication of individual cases. Such systemic action can promote the integrity of the system of adjudication and public confidence in it, and also foster lawful and sound policing. For example, these Principles have identified the problems posed by bloated, outdated, and inaccurate warrant databases. Section 2.08 sets out systemic actions that should be taken by the government, including the judiciary, to regulate the integrity of the warrant system. Similarly, these Principles address actions that should be taken with instances of police misconduct and lying. Courts can establish regularized procedures for documenting such misconduct, making it public, and notifying appropriate authorities. Courts as institutions can and should analyze the data in their possession about the adjudication of individual cases and use that data to determine if there are systemic issues (e.g., regarding the conduct of prosecutors and police in the jurisdiction, or the predictive value of probable-cause determinations) that perhaps can be addressed systemically. They also should release data that the public or other decisionmakers might require in order to evaluate the soundness of policing practices. See § 14.10. One area of particular concern that could benefit from such systemic approaches is warrant practice. Although some jurisdictions assign matters in ways that prevent judge-shopping, other jurisdictions permit officers and prosecutors to seek warrants from a judge of their choice. Jurisdictions with more than one judge hearing applications for warrants should randomize assignments or employ other mechanisms to prevent officers and prosecutors from selecting judges to review warrants. The judiciary also should support efforts to streamline the warrant process, including by facilitating electronic or digital filing when appropriate. Accord § 2.03. To the greatest extent possible, data on the filing and execution of tangible and electronic searches should be public, and the sealing of court orders regarding such searches should be minimized. Accord § 2.05.
Reporters’ Notes
Judges are integral to ensuring lawful policing, and the judiciary can contribute to sound policing. Neutral, full, and fair adjudication is essential to safeguarding individual rights and ensuring accurate adjudicative outcomes. See, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 250 (1980) (explaining that the impartiality of judges “serves as the ultimate guarantee of a fair and meaningful proceeding in our constitutional regime”); In re Murchison, 349 U.S. 133, 136 (1955) (“A fair trial in a fair tribunal is a basic requirement of due process.”); cf. Woodford v. Ngo, 548 U.S. 81, 104 (2006) (Stevens, J., dissenting) (“The citizen’s right to access an impartial tribunal to seek redress for official grievances is so fundamental and so well established that it is sometimes taken for granted.”). This sort of neutrality is particularly important when those being judged are officers of the state. No one must be seen as above the law, particularly those responsible for enforcing the law. See, e.g., Miranda v. Arizona, 384 U.S. 436, 479-480 (1966) (“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen.” (quoting Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting)); United States v. Lee, 106 U.S. 196, 220 (1882) (stating that “[n]o man in this country is so high that he is above the law” and that government officials are “only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives”). In addition, both judges and the judiciary have a stake in safeguarding the integrity of the judiciary and the perception and reality of fairness in adjudication, particularly the adjudication of criminal matters. See, e.g., Bracy v. Gramley, 520 U.S. 899, 904-905 (1997) (“[T]he floor established by the Due Process Clause clearly requires a ‘fair trial in a fair tribunal’ before a judge with no actual bias against the defendant or interest in the outcome of his particular case.” (internal citation omitted) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975))); Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (“From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.”). Much of what must be done falls upon individual judges in adjudicatory matters, but there also are actions the judiciary can take to address systemic issues. Adhering to basic principles of procedure, judicial neutrality, and procedural justice are essential to maintaining public confidence in the judiciary and the work of judges. See 2021 Year-End Report on the Federal Judiciary 3 (2021), https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf (noting that “judges must be scrupulously attentive to both the letter and spirit of our rules” and that they are “duty-bound to strive for 100% compliance because public trust is essential, not incidental, to [the judicial] function.”). Constitutional, statutory, and procedural rules must be followed. See, e.g., Smith v. Turner, 48 U.S. 283, 291 (1849) (“In all our courts the judges are bound to decide according to the law of the land; not according to what they think the law ought to be, but according to the manner in which they find it settled by adjudged cases.”); Gamble v. United States, 139 S. Ct. 1960, 1983 (2019) (Thomas, J., concurring) (“‘[P]recedents and rules must be followed, unless flatly absurd or unjust,’ because a judge must issue judgments ‘according to the known laws and customs of the land’ and not ‘according to his private sentiments’ or ‘own private judgment.’” (quoting 1 William Blackstone, Commentaries *69-70 (1765))). Judges must neither favor one of the parties before them, nor be perceived as doing so. See In re Murchison, 349 U.S. 133, 136 (1955) (explaining that even judges “who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties” should not necessarily preside over a trial because “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’” (quoting Offutt v. United States, 348 U.S. 11, 14 (1954))); Model Code of Jud. Conduct Canon 1 (Am. Bar Ass’n 2020) (“A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary”); Model Code of Jud. Conduct Canon 2 (Am. Bar Ass’n 2020) (“A judge shall perform the duties of judicial office impartially, competently, and diligently”); Code of Conduct for U.S. Judges Canon 3 (Jud. Conf. 2019) (“The judge should perform [their] duties with respect for others, and should not engage in behavior that is harassing, abusive, prejudiced, or biased.”). Studies show that litigants even will accept losing if they perceive the system was fair and that they were heard. See generally Tom R. Tyler, Why People Obey the Law (1990).
Constitutional law provides some basics to fair adjudication. For example, prosecutors must not suborn perjury. See Mooney v. Holohan, 294 U.S. 103 (1935). They must correct false testimony they know or should know to be false. See Napue v. Illinois, 360 U.S. 264 (1959); Giglio v. United States, 405 U.S. 150 (1972). They have an obligation to turn over to the defense any potentially exculpatory or impeachment evidence. See Brady v. Maryland, 373 U.S. 83 (1963). And government actors, including police and prosecutors, must not deliberately fabricate evidence. See Devereaux v. Abbey, 263 F.3d 1070, 1074-1075 (9th Cir. 2001) (“[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government.”). Federal, state, and local statutory rules and court procedures provide others. See, e.g., Fed. R. Evid. 603 (“Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.”); Cal. Penal Code § 118.1 (making it a crime for a peace officer to knowingly and intentionally make a false statement when filing a report regarding the commission of a crime); N.Y. C.P.L. § 245.20(k) (requiring the prosecution to disclose all evidence, including evidence known to the police, that would negate the defendant’s guilt; mitigate culpability; support a potential defense; impeach the credibility of a prosecution witness; undermine evidence of the defendant’s identity as the perpetrator; provide a basis for a motion to suppress; or mitigate punishment); Admin. Rules of the Unified Ct. Sys. of N.Y. § 100.3 (outlining the adjudicative responsibilities of judges in New York State, including to “perform judicial duties without bias or prejudice against or in favor of any person” and to “accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to the law”).
Yet, there is far too much evidence that despite the existence of these clear rules and prohibitions, there are systemic and individual failures. The criminal-adjudication system too often is one of assembly-line justice, no doubt fostered by dockets too large to manage effectively. Misdemeanor adjudication is a particular culprit; defendants often are rushed through arraignment and guilty pleas in mere minutes, sometimes without a lawyer. See Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964, 1013 (2021); see also Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing 10 (2018) (arguing that misdemeanor criminal courts have abandoned their traditional role of adjudicating the guilt of individual people and instead have adopted a “managerial model” of administering justice, primarily concerned with “managing people over time through engagement with the criminal justice system”). The result is that misdemeanor courts are characterized by two fundamental problems: “pervasive disregard for basic criminal law and procedural protections” and “strong inegalitarian tendencies toward criminalizing and punishing the poor and people of color.” Alexandra Natapoff, The High Stakes of Low-Level Criminal Justice, 128 Yale L. Rev. 1648, 1660 (2019) (reviewing Misdemeanorland, supra); see also Alexandra Natapoff, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal (2018). But even for felonies, there are concerns that proceedings are too hurried or pro forma, that defendants are not heard, and that pleas are forced. See, e.g., Amy Bach, Ordinary Injustice: How America Holds Court (2009).
Although these concerns are not about lawful policing, they have a profound effect upon it. When the adjudicative process is not operating properly, many violations of lawful policing will go unnoticed, unchallenged, unadjudicated, or unremedied. And when lawful policing is not enforced, it will be neglected.
Evidence is all too plentiful that some police officers commit the most inexcusable acts as part of criminal investigations and adjudication. They falsify reports, plant evidence, and, most consequentially, they lie, even under oath and in judicial tribunals. See generally Michael R. Bromwich et al., Anatomy of the Gun Trace Task Force Scandal: Its Origins, Causes, and Consequences (Jan. 2022) (detailing “truly egregious acts of corruption” committed by Baltimore Police Department officers, including planting weapons and drugs on suspects, robbing people during street stops, and illegally using GPS trackers); see also Rachel Weiner, Virginia Beach Police Used Forged Forensic Documents in Interrogations, Wash. Post (Jan. 12, 2022), https://www.washingtonpost.com/dc-md-va/2022/01/12/virginia-beach-police-forged-documents/ (describing how Virginia Beach police officers used forged forensic documents to convince suspects that evidence connected them to a crime, and at least one of the forged documents was presented at a bail hearing as evidence); Tom Jackman, Ex-Philadelphia Homicide Detectives Arrested, Accused of Lying in Wrongful Conviction, Wash. Post (Aug. 14, 2021) (three former detectives charged with perjury and false statements for their role in wrongfully convicting a man of murder and putting him in prison for 25 years); Nicholas Bogel-Burroughs & Frances Robles, When Police Lie, the Innocent Pay. Some Are Fighting Back, N.Y. Times (Aug. 28, 2021) (noting that “[t]here have long been instances in which the police have provided false accounts of arrests, but disparities between officers’ descriptions and what people see have become more common with the expansion of body cameras and cellphone videos”); Jake Pearson, A Union Scandal Landed NYPD Officers on a Secret Watchlist. That Hasn’t Stopped Some from Jeopardizing Cases, ProPublica (Oct. 22, 2021) (reporting on several instances of police officers providing false testimony, even after prosecutors had placed them on a secret “No Fly List” because of prior misconduct); Melanie D. Wilson, An Exclusionary Rule for Police Lies, 47 Am. Crim. L. Rev. 1, 4-15 (2010) (cataloging robust evidence of police lying, including the well-known Mollen Commission that “found police perjury rampant” in New York City between 1992 and 1994); Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75 (1992) (finding that police, judges, prosecutors, and public defenders agreed there was a “pattern of pervasive police perjury” in Chicago); Joseph Goldstein, ‘Testilying’ by Police: A Stubborn Problem, N.Y. Times (Mar. 18, 2018) (chronicling instances of police lying in New York City); Michelle Alexander, Why Police Lie Under Oath, N.Y. Times (Feb. 2, 2013) (quoting former San Francisco Police Commissioner: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath.”); U.S. Dep’t of Just., Investigation of the Chicago Police Department 75 (2017) (indicating that “a code of silence exists” among police officers and “is apparently strong enough to incite officers to lie even when they have little to lose by telling the truth”). Such conduct is so common it has a name: “testilying.” Joe Sexton, New York Police Often Lie Under Oath, Report Says, N.Y. Times, Apr. 22, 1994, at A1.
Unfortunately, the evidence also shows that judges have at times failed in their responsibility to address these problems. At the least, some judges have not scrutinized the actions of police sufficiently, leading to the impression that misconduct is all part of the process, or that the ends justify the means. See Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75, 107 (1992) (conducting a survey with judges, prosecutors, and defense attorneys in Chicago and finding that 69% of respondents believed Chicago’s system did not effectively control police perjury at suppression hearings); id. at 114 (“A disturbing number of [Chicago system survey] respondents actually believe that police lying in court is not perjury. . . . When I asked whether [one Chicago judge] equated police fabrications with perjury he answered, ‘Of course it is not perjury. Who would ever think it was perjury? Do you know what perjury is?’”); Christopher Slobogin, Testilying: Police Perjury and What to Do about It, 67 U. Colo. L. Rev. 1037, 1045 (1996) (“Many prosecutors and judges believe perjury is systematic and often suspect it is occurring in individual cases. But they also frequently claim that they are not sure enough to do anything about it . . . .”); Melanie D. Wilson, Improbable Cause: A Case for Judging Police by a More Majestic Standard, 15 Berkeley J. Crim. L. 259, 263-264 (2010) (explaining that a two-year study of Kansas judges’ rulings on allegations of police perjury revealed that trial judges are “failing to fulfill [the] important role of identifying police perjury, either because they are unable to distinguish carefully crafted lies from truth or because they err on the side of punishing a culpable defendant, even if police may have lied.”); State v. Finkle, 201 A.3d 954, 968 (Vt. 2018) (dissenting opinion) (“Judicial attempts to protect a citizen’s Fourth Amendment rights are further frustrated by well-documented police falsification and perjury, which trial court judges are often either unable or unwilling to identify.”). At the worst, some judges—with full awareness that misconduct is occurring—simply have averted their eyes. See Alan M. Dershowitz, Controlling the Cops: Accomplices to Perjury, N.Y. Times, May 2, 1994, at A17 (“Some judges refuse to close their eyes to perjury, but they are the rare exception to the rule of blindness, deafness and muteness that guides the vast majority of judges and prosecutors.”); Myron W. Orfield, Jr., The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. Chi. L. Rev. 1016, 1023 (1987) (arguing that “because the exclusion of evidence frequently returns guilty criminals to the street, judges may ‘wink’ at obvious police perjury in order to admit incriminating evidence”); cf. Michael Traynor, Some Friendly Suggestions for the Federal Judiciary about Accountability, 168 U. Pa. L. Rev. 128, 131 (2020) (arguing that federal judges can be “timid when courage is needed”). This is an issue that judges themselves have recognized. See Jon Loevy, Truth or Consequences: Police Testilying, 36 Litig. 13, 14 (2010) (quoting Massachusetts District Judge Mark Wolf’s remark that there was a “‘long and recent history’ of false testimony in court by Boston police officers” and Eastern District of New York Judge Jack Weinstein’s remark that the NYPD engaged in “repeated, widespread falsification”); Nancy Gertner, The “Lower” Federal Courts: Judging in a Time of Trump, 93 Ind. L.J. 83, 86 (2018) (criticizing federal judges for employing a “duck, avoid, and evade” approach that reduces certain litigation—“notably, civil rights cases and police misconduct litigation—to kabuki rituals” in which plaintiffs “regularly lose long before trial”); Jonathan Blanks, Reasonable Suspicion: Are Police Lying in Use of Force Cases?, CATO Inst. (Jan. 7, 2015), https://www.cato.org/commentary/reasonable-suspicion-are-police-lying-use-force-cases (“Alex Kozinski, now‐chief judge of the U.S. Court of Appeals for the Ninth Circuit once said, ‘It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers.’”); Joseph Goldstein, Brooklyn Judge Seeks to Examine Prevalence of Police Lying, N.Y. Times (Oct. 17, 2017), https://www.nytimes.com/2017/10/17/nyregion/brooklyn-judge-police-perjury-nypd.html (describing how Judge Weinstein “told the city to prepare for a court hearing regarding the prevalence of lying by New York City police officers” after reviewing recent accusations of false testimony by NYPD officers); Steve Mills & Todd Lighty, Cops Rarely Punished When Judges Find Testimony False, Questionable, Chi. Trib. (May 6, 2016) (quoting a retired Cook County, Illinois, judge who confirmed that judges often encounter police lies but “don’t do enough about it”).
It is not just policing officials, though, who break the rules; other government actors, from investigators to prosecutors, do the same. They suborn perjury. See Slobogin, Testilying: Police Perjury and What to Do About It, supra, at 1046-1047 (noting that in Orfield’s Chicago system survey, “52% [of respondents] believed that at least ‘half of the time’ the prosecutor ‘knows or has reason to know’ that police fabricate evidence at suppression hearings”); Morgan Cloud, Judges, “Testilying,” and the Constitution, 69 S. Cal. L. Rev. 1341, 1353 (1996) (noting New York’s Mollen Commission concluded that prosecutors sometimes exhibited the same tolerance for police perjury as law-enforcement officers themselves); see also I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind. L.J. 835, 870 (2008) (“Blue lies are so pervasive that even former prosecutors have described them as ‘commonplace’ and ‘prevalent.’”).They fail to comply with perfectly clear discovery and disclosure obligations. See Kathleen Ridolfi et al., Material Indifference: How Courts are Impeding Fair Disclosure in Criminal Cases 1 & n.2 (2014) (collecting studies demonstrating “conclusively” that prosecutorial disclosure duties are “often left unfulfilled”); Rachel E. Barkow, Organizational Guidelines for the Prosecutor’s Office, 31 Cardozo L. Rev. 2089, 2090 (2010) (“A host of studies have documented prosecutorial misconduct, and one of the most common types of prosecutorial misconduct in these cases involved the suppression of exculpatory evidence in violation of Brady v. Maryland.”); The Justice Project, Improving Prosecutorial Accountability: A Policy Review 2 (2009) (“The most common form of prosecutorial misconduct is a failure to provide the defense team with evidence that is favorable to the defendant.”); Robert M. Cary et al., Federal Criminal Discovery (2d ed. 2021).
And once again, at times members of the judiciary have failed to do what they can or should to avoid such misconduct. At the least, judges have been insufficiently attentive to prosecutorial obligations, taking them at their word or not insisting on compliance with basic disclosure and discovery rules. See Cynthia E. Jones, Here Comes the Judge: A Model for Judicial Oversight and Regulation of the Brady Disclosure Duty, 46 Hofstra L. Rev. 87 (2017) (noting that “trial judges traditionally rely on prosecutors to self-regulate their Brady disclosure duty” and “do not become involved in managing and regulating the Brady disclosure duty until the defense identifies favorable information . . . that has not been disclosed”);Wayne R. LaFave, 6 Criminal Procedure § 24.3(b) (4th ed.) (“Courts tend to be reluctant to undertake pretrial review of Brady requests.”); Kathleen “Cookie” Ridolfi et al., Material Indifference: How Courts are Impeding Fair Disclosure in Criminal Cases, at xiii (2014) (“[T]his study provides empirical support for the conclusion that the manner in which courts review Brady claims has the result, intentional or not, of discouraging prosecutors from disclosing information that does not meet the high bar of materiality.”); Cynthia E. Jones, A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415, 433 (2010) (“Other than the unenforceable ‘honor code,’ there are few incentives for prosecutors to comply with Brady because there is no meaningful judicial oversight of the process.”). At the worst, some judges have failed to discipline or report violations. See Kathleen M. Ridolfi & Maurice Possley, Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009, at 48-50 (2010) (discussing the failure of California judges to report prosecutorial misconduct to the California State Bar, despite a law requiring such reporting); California Commission on the Fair Administration of Justice Final Report 71 (2008) (noting that the California State Bar could not find a single example of judicial reporting on prosecutorial misconduct in its review of 27 cases in which prosecutorial misconduct resulted in a conviction reversal); David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203, 221 (2011) (analyzing disciplinary practices in all 50 states and finding that “those who are in the best position to discover prosecutorial misconduct—judges, prosecutors, and defense attorneys—routinely fail to report it”); Adam M. Gershowitz, Prosecutorial Shaming: Naming Attorneys to Reduce Prosecutorial Misconduct, 42 U.C. Davis L. Rev. 1059, 1062 (2009) (noting that, in reversing convictions due to prosecutorial misconduct, appellate courts “often do not call out the offending prosecutors by name in judicial opinions. Rather, many judges go to great lengths to redact the names of misbehaving prosecutors from trial transcripts quoted in judicial opinions”); Laural Hooper et al., Fed. Judicial Ctr., A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases 29 (stating that federal judges “reported that they rarely hold an attorney in contempt, and seldom report an attorney’s conduct to the Department of Justice’s Office of Professional Responsibility (OPR), bar counsel, or some other disciplinary body”).
Finally, there is the problem of judges—often acting under the pressure of caseloads—simply failing to take the time to scrutinize carefully and independently the requests of officers for warrants. Yet, the issuance of a warrant regularly involves a substantial intrusion into people’s lives. One area of particular concern is the issuance of no-knock warrants, which often are executed by police in tactical gear, wielding a variety of armaments. In far too many instances, the execution of these warrants has led to property damage, serious personal injury, and even death. See Courtney Kan, Jenn Abelson, & Nicole Dungca, 5 Takeaways from the Post’s Investigation into No-Knock Warrants, Wash. Post (May 5, 2022); Piper Hudspeth Blackburn, Breonna Taylor’s Death: A Push to Limit No-Knock Warrants, A.P. (Mar. 30, 2021). Sometimes the information provided by police was accurate but did not necessarily justify the use of a no-knock entry. See Nicole Dungca & Jenn Abelson, No-Knock Raids Have Led to Fatal Encounters and Small Drug Seizures, Wash. Post (April 15, 2022). In other instances, police representations to obtain the warrant themselves were false. See Ex parte Mallet, 620 S.W. 3d 797 (Tex. Crim. App. 2021, unpublished).
A wealth of scholarship suggests actions judges can take to address these problems. When it comes to false testimony or evidence, commentators recommend several different strategies. First and foremost, commentators agree that judges can take an active role in scrutinizing police work, particularly during suppression hearings. See Steven Zeidman, Policing the Police: The Role of the Courts and the Prosecution, 32 Fordham Urb. L.J. 315, 332-336 (2005) (encouraging judges to hold more suppression hearings and (1) permit vigorous cross-examination of police witnesses, (2) require the officers most directly involved in the arrest to testify, and (3) permit the defense to call their own witnesses); Joseph Goldstein, Police ‘Testilying’ Remains a Problem. Here Is How the Criminal Justice System Could Reduce It, N.Y. Times (Mar. 22, 2018) (making a similar recommendation and noting that only 2.4% of felony cases in Manhattan that do not end in a guilty plea at initial arraignment have a suppression hearing). In particular, judges should take seriously allegations of police perjury and “encourage a much deeper exploration of the issue of police credibility than presently occurs.” David N. Dorfman, Proving the Lie: Litigating Police Credibility, 26 Am. J. Crim. L. 455, 464 (1999). Recent reporting on the issue of testilying has led to a suggestion to make police officer credibility findings public in order to better inform the public about the prevalence of police lying. See Joseph Goldstein, Police ‘Testilying’ Remains a Problem. Here Is How the Criminal Justice System Could Reduce It, N.Y. Times (Mar. 22, 2018). Other commentators encourage judges to focus on accountability and to adopt stronger sanctions for police lies to more effectively deter perjury. See Wilson, An Exclusionary Rule for Police Lies, supra, at 45-46. Still others suggest that judges should cease instructing juries that the testimony of a police officer is to be treated like that of any other witness, and instead warn the jury that police officers hold certain biases that may affect the credibility of their testimony. See Vida B. Johnson, Bias in Blue: Instructing Jurors to Consider the Testimony of Police Officer Witnesses with Caution, 44 Pepp. L. Rev. 245, 298-299 (2017).
Judges also can and should—in signing warrants and other court orders—take the time to review and deliberate over them commensurate with the interests involved. See, e.g., U.S. v. Leon, 468 U.S. 897, 913 (1984) (emphasizing the importance of neutral and detached magistrates scrutinizing warrants); ABA Standards for Criminal Justice: Special Functions of the Trial Judge, Standard 6-1.10 (judges should “carefully observe constitutional and statutory requirements and not permit these procedures to become mechanical or perfunctory”). Perhaps judges issuing no-knock warrants should be required to affix an additional signature indicating that is the way entry will occur. It also is worth noting that several states have banned the use of no-knock warrants altogether. Kiara Alfonseca, What to Know About No-Knock Warrants, Following Amir Locke’s Fatal Shooting, ABC News (Feb. 10, 2022) (noting that Florida, Oregon, and Virginia have banned no-knock warrants and at least 34 other states have restrictions or limitations on their use).
When it comes to disclosure and discovery obligations, again there are a number of actions that could be taken to make judging more effective. Although disclosure obligations fall on lawyers much more than police, attention to this issue is entirely appropriate in principles about policing. Policing officials have their own obligations. See, e.g., 725 Ill. Comp. Stat. 5/114-13 (requiring law-enforcement officials to provide investigative materials and exculpatory information to the prosecution); U.S. Dep’t of Just., Justice Manual, § 9-5.100 (establishing policy for evidence disclosure to the prosecution by federal law-enforcement officials). But their conduct also affects compliance by prosecutors with obligations under federal and state law. See, e.g., Kyles v. Whitley, 514 U.S. 419, 437-438 (1995) (holding the prosecution responsible for a Brady violation even when the exculpatory information was known only to the police). And the many sources cited above indicate prosecutors often tolerate police misconduct.
The adversarial process will not always generate compliance with discovery obligations, but judges can adopt procedures that make compliance more likely. Judges can issue comprehensive standing orders governing the prosecution’s evidence-disclosure duties. See Jones, Here Comes the Judge, supra, at 110. In fact, this is now a requirement of federal judges. The recently enacted Due Process Protections Act requires federal judges to “issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law.” Pub. L. No. 116-82, 134 Stat. 894 (2020). Judges could go even further and issue an Ethical Rule Order requiring the prosecution “to search his file and disclose all information that ‘tends to negate the guilt of the accused or mitigates the offense,’” in accord with ABA Model Rule 3.8(d).Ridolfi et al., Material Indifference, supra, at 48. Many practitioners agree that it is crucially important for judges to hold mandatory pretrial Brady conferences and impose clear deadlines for when material must be turned over. See Symposium, New Perspectives on Brady and Other Disclosure Obligations: Report of the Working Groups on Best Practices, 31 Cardozo L. Rev. 1961, 2032 (2010). Along the same lines, some commentators suggest judges create and use Brady “checklists,” hold pretrial Brady compliance hearings, and require prosecutorial certification of compliance with Brady. See Jones, Here Comes the Judge, at 113-122. Finally, commentators emphasize that judges should issue sanctions for failure to comply with disclosure obligations, publicly call out prosecutors for their misconduct, and report violations to the relevant disciplinary committees. See Jones, Here Comes the Judge, supra, at 129; New Perspectives on Brady and Other Disclosure Obligations, supra, at 2034; Kathleen M. Ridolfi & Maurice Possley, Preventable Error: A Report On Prosecutorial Misconduct in California 1997–2009, at 50 (2010).
Finally, judges may have a special role to play when the function they are serving is less neutral adjudication in the classic sense, and more supervision of the policing function itself. A prime example of this is the warrant process. See Jack Knight, Mitu Gulati & David Levi, How Bayesian Are Judges?, 16 Nev. L.J. 1061, 1067, 1077 (2016) (describing involvement of judicial officials in reviewing warrant applications).
It is not just individual judges who should take action to ensure the adjudicatory process fulfills its role of ensuring lawful policing, or to incentivize sound policing; the judiciary as an institution (or entire courts) also have a role to play. Courts can amend their rules and policies to address specifically the issues discussed in this Section. For example, several scholars suggest courts at the federal and state level codify clear rules outlining the prosecution’s evidence-disclosure duty, including the specific type of information that must be disclosed, the timing of disclosure, and sanctions for failure to comply. See Jones, Here Comes the Judge, at 124; Ridolfi et al., Material Indifference, supra, at 49. Similar rules and policies could be adopted around reporting requirements and sanctions for untruthful police testimony. And, importantly, judges can leverage the massive amount of information they have about the actions of prosecutors and police to better understand how the court system is functioning at an institutional level, and take action to promote sound policing. See generally, Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in Criminal Courts, 129 Harv. L. Rev. 2049 (2016) (discussing the various types of “systemic facts” that criminal courts possess from the information contained in warrant applications and returns, suppression hearings, and evidence disclosure statements, and suggesting ways to use this information to improve criminal-court operations). Issues of implicit bias are more complicated. There is a lack of current evidence that antibias trainings promote long-term changes in attitudes and behavior. See Nat’l Ctr. for State Courts, The Evolving Science on Implicit Bias (2021); The Behavioural Insights Team, Unconscious Bias and Diversity Training – What the Evidence Says (2020). Judge Bernice Donald of the U.S. Court of Appeals for the Sixth Circuit recommends that judges gather and analyze data about case dispositions and sentences to identify and combat bias that may occur. See Bernice Donald, Judges on Race: Reducing Implicit Bias in Courtrooms, Law360 (Dec. 6, 2020); see also ABA & NAACP Legal Def. Fund, Joint Statement on Eliminating Bias in the Criminal Justice System (July 2015), https://www.americanbar.org/content/dam/aba/images/abanews/aba-ldf_statement.pdf (calling on judges to “seek expert assistance to implement training on implicit bias for their employees”). This type of empirical analysis could be encouraged or required through new policies and practices court-wide. Finally, commentators have noted the importance of improving conditions of judicial decisionmaking by providing judges with the resources and time to “engage in effortful, deliberative processing.” See Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1173 (2012); Kang et al., Implicit Bias in the Courtroom, supra, at 1177. One area ripe for attention by the judiciary is warrant practice. At present, there can be judge-shopping for warrants, unlike the more typical rule of random assignment. See James Orenstein, Opinion, I’m A Judge. Here’s How Surveillance is Challenging Our Legal System, N.Y. Times (June 13, 2019), https://www.nytimes.com/2019/06/13/opinion/privacy-law-enforcment-congress.html (discussing the practice of judge-shopping among prosecutors); Richard Van Duizend et al., Nat’l Ctr. for State Cts., The Search Warrant Process: Preconceptions, Perceptions, and Practices – An Executive Summary 44 (1984) (finding that “judge-shopping is practiced by search warrant applicants”). In jurisdictions with more than one judge, assignment should be randomized or other means should be adopted to prevent judge-shopping. There also is insufficient public information about warrants and court orders, particularly around electronic and digital surveillance. See generally Hannah Bloch-Wehba, Visible Policing: Technology, Transparency, and Democratic Control, 109 Cal. L. Rev. 917 (2021); Stephen Wm. Smith, Gagged, Sealed & Delivered: Reforming ECPA’s Secret Docket, 6 Harv. L. & Pol’y Rev. 313 (2012); see also § 2.05 (discussing sealing and nondisclosure of court orders). The data contained in warrant returns can also be a rich source of information for judges to analyze and learn from—though this practice is not routinely engaged in. See Jack Knight, Mitu Gulati & David Levi, How Bayesian Are Judges?, 16 Nev. L.J. 1061, 1067, 1077 (2016) (surveying 30 federal judges and finding “the overwhelming majority of the judges did not appear to pay any attention whatsoever to the data in the returns”). Inspecting returns could inform future judicial review of warrant requests and ensure the quality of officer evidence and testimony.