Taking on Testilying: The Prosecutor's Response to In-Court Police Deception

Abstract

In this article, Professor Cunningham examines the problem of "testilying" perjury and other forms of in-court deception by police officers-from the prosecutor's point-of-view. In Section I of this article, he gives a detailed overview of the problem of testilying. He demonstrates that it is a real, but by definition unmeasurable, problem. Precisely because the problem is so impervious to quantitative measurement, he spends a significant portion of this article explaining the problem. In Section II, Professor Cunningham examines how prosecutors have and have not dealt with the problem. In Section III, he shows what the federal subornation of perjury statute and the Model Rules of Professional Responsibility require prosecutors to do in response to testilying. In Section IV, he identifies what steps, above and beyond laws and rules of ethics, prosecutors should take to combat the crime of police perjury. Finally, in Section V, he addresses criticisms of his approach.