‘Testilying’…

. . . Is a term coined by New York City police officers to describe what happens with some frequency (otherwise they would not have felt called upon to invent the word) when arresting officers testify under oath in Court at hearings and trials about how they came to arrest the ‘perpetrator’ and what he said to them—freely and without duress, even after being given the ‘Miranda Warnings’ (arising from the seminal U.S. Supreme Court case, Miranda v. Arizona, in 1964)—to the effect that they don’t have to answer the questions of the police while confined in a Precinct Squad Interrogation Room being grilled by multiple detectives in shifts, continuing for as long as three days (a client of mine) rather than being taken to Court for Arraignment before a Judge within 24 hours of arrest, as the law requires.

Police, usually one of those interrogating detectives, often feel the need to ‘testilie’ in describing how the defendant (we’re in Court now) ‘confessed’ to the crime.

Over time it has become the sine qua non of the good detective to extract incriminating statements from his ‘collar’ (police-speak for the arrestee). The law does permit police to lie to the suspect (who has become ‘a person of interest’ in TV- and Press-speak): for example, “Your partner next door is right now throwing you under the bus, making a deal with the DA”; or, “Tell us what happened, you were just defending yourself, right?” I suspect cops now take their language cues from TV’s “Law and Order”, much like the Mafia’s ‘made men’ began to ape The Godfather’s dialogue (if media Mob Commentators can be credited). What are the cops not permitted to say? “Just tell us how it went down and you can go home”; or, “If you don’t talk right now, we’re calling ACS (Administration for Children’s Services) to take your girlfriend’s kids into Foster Care.”

Having been a criminal defense lawyer for 18 years with the Legal Aid Society of New York City, I personally knew a tough guy gang-leader from the Ravenswood Houses (a NYC Project in Queens) who folded when presented with the police version of ‘Sophie’s Choice’. Who held the moral high ground in this exchange is not in dispute.

As a retired NYPD lieutenant with 20 years on patrol and many partners still on the Force or working as investigators in District Attorney’s offices in all the boroughs, I hear the stories: the female detective in a Queens Precinct who simply invents out of whole cloth ‘confessions’ by her arrestees; the detective who arrests anybody, suspect or not, in a high-profile case “because the bosses are breathing down our necks.” This is what goes on, daily, I believe. Assistant District Attorneys refuse to acknowledge it. They must rely on police testimony in virtually all of their trials. They are loathe to believe they are presenting perjured police testimony. I knew one Assistant District Attorney in Manhattan who refused to indict a case because he was convinced his police witness was lying. He was soon looking for another job. Judges are well aware that the police will lie under oath on the witness stand, yet have not ever, in my memory, referred such conduct to the Borough District Attorney to proceed criminally against the policeman. Instead, they will label the cop or his testimony "incredible”, decide the case accordingly and leave it at that.

This whole unsavory business of police perjury came up the other day in Manhattan where I was a panelist on an MWA program at the New York Public Library, entitled “From the Autopsy Room to the Courtroom: How Medical Examiners and Lawyers Speak for the Dead.” There was myself, the sole defense lawyer, two former prosecutors, a NYC Medical Examiner and our moderator, a serving NYPD lieutenant—all of us authors of ‘mysteries’. To be candid, I raised the subject myself in my off-the-cuff remarks. You see, I don’t ‘speak for the dead’ (the de rigueur description of the jobs of police and prosecutor). No, I speak for the living, the lonely soul described as “the Perpetrator” by the cops, “the Defendant” by the DA, and “the Wrongly-Accused” (sometimes) or “the Innocent” (rarely) or “the Not-So Guilty” (mostly)-- by me. I must confess I wormed my way onto this panel, owing to some perversity in my character, no doubt. And that must explain my intemperate remarks about the police in our alleged Criminal Justice System—remarks so not in keeping with some of my fellow-panelists’ dearly-held naïve beliefs.

It was a large audience, about 125 who overflowed the room. I admit I thought I did a creditable job as panelist, getting some laughs and being complimented at the end by a woman who called me “delightful”. I feel certain she was neither a prosecutor nor a cop who, I was informed, found me highly objectionable. I’ll just have to put that out of my mind and get on with it. I can well believe the audience was loaded with cops and DAs since only three hardcovers were sold by the book vendor (one was mine and I bought another).

In the interest of more candor, I confess that my series hero, NYPD Detective Harry Corbin, is forever “speaking for the dead” (which is okay since he’s a cop).

Robert Knightly