Article by: Vida B. Johnson

44 PEPP. L. REV. 245 (2017)

Jurors in criminal trials are instructed by the judge that they are to treat the testimony of a police officer just like the testimony of any other witness.  Fact-finders are told that they should not give police officer testimony greater or lesser weight than any other witness they will hear from at trial.  Jurors are to accept that police are no more believable or less believable than anyone else.

Jury instructions regarding police officer testimony stand in contrast to the instructions given to jurors when a witness with a legally recognized interest in the outcome of the case has testified.  In cases where witnesses have received financial assistance or plea deals for their testimony, a special instruction is given.  For example, when a witness with a cooperation agreement testifies, the trial court will tell the jury that while the witness has the same obligation to tell the truth as other witnesses, the jury can consider whether the witness has an interest different from other types of witnesses and that her testimony should be considered with caution.  In many jurisdictions, when a criminal defendant testifies, the jurors are told, despite the presumption of innocence, that he has a “vital” interest in the outcome of the case and that jurors can give his testimony less weight.  Courts have routinely and almost universally refused to allow similar instructions for police officer testimony.

Instructions highlighting that officers may be biased or have an interest in the outcome of the case are almost never given in a criminal trial.  To the contrary, jurors are effectively told they must not consider the police officer’s status as a police officer when considering her testimony.

In many cases, however, police officers are not disinterested parties.  They work hand-in-hand with prosecutors in building a case against a defendant.  In undercover buy-bust stings, search warrant cases, and assault on police officers cases, police officers are not only the sole witnesses to the alleged offense, they are also invested in the outcome of the case.  These cases would not exist without the police officer’s involvement.  These crimes—sometimes police-manufactured—are often the result of departmental interests.  For example, police go out and act in an undercover capacity and claim to buy drugs or purchase sex because of the agendas that they themselves or their offices have set.  Later, they may have to justify decisions they made about the selective use of limited departmental resources with arrests and convictions.  Law enforcement may also be motivated by the money at stake in the civil forfeiture related to a criminal case.  Recent events in Chicago, Baltimore, Cincinnati, Ferguson, Staten Island, South Carolina, and other locations have created a public dialogue on police credibility.

Despite the strong interests of law enforcement, the law has treated law enforcement as impartial when, in reality, officers are in many instances “biased advocates.”  This Article calls for jury instructions that reflect the reality of these police officer interests.