Washington Law Review

Article

Contesting Police Credibility

October 01, 2018 | 93 Wash. L. Rev. 1339

Abstract:  Criminal cases often amount to credibility contests between two actors: the
complainant, testifying for the government, and the defendant. In theory, the defendant’s
opportunity to attack the credibility of government witnesses should be equal to or greater than the government’s opportunity to attack the credibility of the defendant, given that the defendant has a constitutional right to a fair trial. But when the government’s witnesses are police officers, the converse occurs. Although the phenomenon of police officers lying at trial is so well documented that it has its own euphemism, “testilying,” the law imposes tremendous obstacles to defense counsel obtaining and utilizing evidence about officers that would call into question their credibility as witnesses.

The thesis of this Article is that, when it comes to helping a jury assess the credibility of
defendants and police officer witnesses, the law gets it backward. On the one hand, our data
collection systems and evidentiary doctrines allow the government nearly instant access to a
defendant’s entire history of encounters with the law, disincentivize defendants from testifying at their own trials, and give prosecutors myriad means to introduce evidence suggesting that the defendant is, based on prior misdeeds, likely to be guilty of the charged crime. On the other hand, the law perversely prevents defendants from casting doubt on the credibility of police officers, by making police misconduct records confidential and, in many cases, inaccessible to defendants. This unequal distribution of access and ability to utilize information creates trials where the jury is exposed to extensive evidence suggesting the accused is an incredible, and likely guilty party, but remains naïve to the many reasons to question the credibility of the police officer.

This Article, while grounded in a rich tradition of scholarly literature critiquing the many
ways the American criminal system venerates law enforcement and represses people of color,
provides a novel contribution to that literature by exposing the particularly problematic
imbalances that result when the government is not only prosecuting a defendant, but also acting as his primary accuser. After thoroughly analyzing the doctrines that enable these inequities, this Article provides recommendations for reform in three areas: (1) the lack of thorough recordkeeping and accurate data pertaining to police misconduct; (2) the laws that prevent defense counsel from accessing and utilizing police misconduct records that do exist; and (3) the evidentiary rules that permit governments to access and utilize bad acts and character evidence against defendants.

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