Police and District Attorneys Lying in Court

If you feel that the police are lying or prosecutors are lying, our Chicago criminal defense lawyers can assist you to make things right. Call us today at (312) 466-9466 to discuss your case.

In our role as Federal criminal defense lawyers in Illinois and in our capacity as Chicago criminal defense attorneys, we've seen plenty of instances where prosecutors and police lie to get a search warrant, lie in court, or fabricate evidence in order to win. In fact, we win many cases simply by proving that the police are not being truthful.

Most cops and prosecutors are good people, but there are way too many bad apples, and it got us to wondering why.

So, why do many police officers and prosecution investigators lie to judges and juries? It's because they know they can lie with impunity.

Sadly, the criminal justice system often has the foxes guarding the hen house. A good example of this is the recent United States Supreme Court case of Rehberg v. Paulk.

According to the petition for Writ of Certiorari filed in that case, Charles A. Rehberg was a forensic accountant who discovered evidence of unethical billing practices at Phoebe Putney Memorial Hospital in Albany, Georgia.

Mr. Rehberg publicized his findings by sending a series of anonymous faxes to the hospital.

James P. Paulk was the Chief Investigator for the Office of the District Attorney of Dougherty County in Georgia. As a "favor" to the hospital, with whom he and the District Attorney had political connections, Paulk and the District Attorney launched a criminal investigation of the petitioner.

Using the grand jury process, the District Attorney's Office indicted Rehberg on three separate occasions for allegedly harassing the recipients of his anonymous faxes and for assaulting a doctor, a crime that Paulk later acknowledged had never occurred. Paulk was the sole complaining witness against Rehberg before the grand jury.

All three indictments were eventually dismissed as legally insufficient. Feeling that he had been persecuted unjustly by the District Attorney, Rehberg filed a complaint against Paulk and others, alleging ten counts, including participation in evidence fabrication, implying that Paulk had given false testimony to the grand jury.

The allegation of grand jury perjury was the primary reason that the case went to the Supreme Court. While most of us would agree that lying to a grand jury is a serious offense, our legal system looks at the issue through the lens of its immunity law, which, depending on circumstances, often offers absolute immunity or qualified immunity to those who testify in court cases. When absolute immunity is granted, there is effectively no opportunity for the injured party -- the victim of the false testimony -- to seek any recourse for the other side's having made false testimony to a grand jury.

The nuance here is that perjury is still a crime. The Court can go after somebody for perjury, but the individual who is damaged by the perjury, Rehberg in this case, is powerless to get justice if the Court itself does not take action.

With respect to Rehberg v. Paulk, Justice Samuel Alito Jr., writing for the Supreme Court, decided that Rehberg could not go after Paulk for perjury; only the Court could do that, and they had chosen not to.

Alito noted that a 1983 decision by the justices held that a trial witness sued under Section 1983 of the Civil Rights Act of 1871 had absolute immunity for any claim based on the witness's testimony. Without absolute immunity, the Court said in that earlier decision, witnesses might be reluctant to testify or be inclined to shade the truth for fear of subsequent liability.

"The factors that justify absolute immunity for trial witnesses apply with equal force to grand jury witnesses," Alito wrote. "In both contexts, a witness' fear of retaliatory litigation may deprive the tribunal of critical evidence, and in neither context is the deterrent of potential civil liability needed to prevent perjurious testimony."

Perjury before a grand jury, Alito argued, is like perjury at trial, a serious criminal offense. Alito concluded "there is no reason to think that this deterrent is any less effective in preventing false grand jury testimony."

In fact, there is a very good reason to think that the threat of perjury is less of a deterrent before a grand jury. Grand jury witnesses are prosecution witnesses. Prosecutors will not indict their own witnesses for lying to further a prosecution.

This out-of-touch-with-reality type of reasoning by courts is a big part of why police officers and prosecutor's investigators know they can lie with impunity. The foxes are guarding the hen house.