An officer is testifying on the witness stand in a court trial.

Question

As her examination moves along, she realizes that the drug dealer that she arrested is likely to be found not guilty. This is because even though she obtained a verbal waiver of the Fourth Amendment rights from the suspect, she had in fact searched the trunk of the suspect’s car prematurely. She realizes that only if she lies will the suspect be found guilty. She also realizes that the suspect is confused about the entire process, and will not even be aware of her lie if she decides to tell it. What does she do? Would that, indeed, involve promoting injustice? What would be ethical implications be if she did lie?

Answer 1

Interesting question from a legal perspective. For purposes of disclosures and discovery, the officer's knowledge is attributable to the prosecution. Knowledge that a search was performed in violation of the Fourth Amendment is not, in and of itself, exculpatory evidence because it does not tend to establish that the defendant did not commit the offense, just that there is a flaw in the prosecution. Accordingly, neither the officer nor the prosecution need come forward and disclose the search issue to the defendant. Rather, as the above response indicates, it is defense counsel's job to develop a challenge to the search. But, if defense counsel does explore the issue, it will be important for the officer to tell the truth. In addition to the perjury issue, the officer will place the prosecution in a catch-22 if she lies. Under Giglio v United States, the prosecution must disclose impeachment evidence to the defense. So, the moment the officer lies about the search, the prosecutor would be bound to disclose the information about the search should the prosecutor intend to call the officer at trial (which seems inevitable if the officer recovered the contraband) And, even if the officer never informed the prosecutor, because the information is attributable to the prosecutor automatically, if the prosecutor did not disclose the information and the defense found out about it after trial, any conviction would be subject to a potentially meritorious post-conviction challenge based on the discovery violation. Bottom line, this is all to say that the officer ought to advise the prosecutor about the investigatory error and let the prosecutor adjust strategy based on this important information.

NOTE: The above is not intended as legal advice but is offered in response to an apparent hypothetical question put forth for discussion.

Answer 2

There are many facets to this question; however, the officer should never lie. Being found guilty of perjury (lying) could disqualify an officer from providing future court testimony.

The responsibility of explaining the process to the defendant belongs to the defendant's legal counsel and not the officer.

To better answer the question can you address these questions:

1. Where and why was the person arrested?
2. Did the arrest occur prior to allowing a consent to search?

Dr. C.