Will Weaker Exclusionary Rule Mean Less Testilying

An article in today's Wall Street Journal raises the issue of testilying (lying under oath by police officer) that has been studied by numerous criminologists and other academics. In Boston a federal judge is actually weighing sanctions against the prosecutor who did not quickly alert the court about discrepancies in testimony and what the officer said initially.

In January 2009 the U.S.Supreme Court handed down a ruling in Herring v. U.S. which will allow more evidence to be introduced at trial even though it is tainted. This will occur because the "good faith" exception was broadened in the holding.

There is talk in the legal profession about the effect of the Herring decision. Specifically members of the legal profession and academics alike wonder if testilying will decrease since the Exclusionary Rule, in many cases, will be less of problem for the prosecution.

It is claimed that most of the testilying involves drugs' being in plain site (dropped by defendant) or the cause of a search of a person. (Drug-related and firearm-possession cases)

It remains to be seen what the actual effect of Herring is and whether there is a decrease in supposed testilying. Not to be overlooked is the near impossibility of knowing if what the defendant claims is truly self-serving or the officer has varnished the incident. Nor can one ignore the fact that sometimes one sees what one expects to see.

When proofing a paper or other writing, we often fail to spot obvious errors because we expect the correction to actually be there. All of this raises the question about whether what the officer states is truly lying under oath or the mind having played with what was seen, allowing the officer to truly believe he saw a bulge. This would allow a bit more leeway in the firearm-possession situation. However no amount of mental gymnastics changes finding drugs in a suspect's pocket into having the suspect drop them on the ground.