The Truth, the Whole Truth, and Nothing But the Truth Regarding Witness Immunity for Peace Officers

The United States has long upheld the concept of the witness immunity, which protects witnesses who testify at legal proceedings from civil lawsuits.  The public policy rationale behind this doctrine is that witnesses should feel that they can testify truthfully without fear or intimidation of being sued in a retaliatory civil action.

In Briscoe v. LaHue, 460 U.S. 325 (1983), the Supreme Court clarified that a witness is absolutely immune for liability for testimony at trial, even if that witness is a law enforcement officer and even if that witness has committed perjury.  In Briscoe, a convicted man brought a lawsuit against the police officers who offered perjured testimony at his criminal trial, which resulted in his conviction.  The Supreme Court held that the officers were immune from civil liability, noting that the possibility of an impending lawsuit could interfere with the officer’s testimony.  The Supreme Court stated, “A witness who knows that he might be forced to defend a subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence.”

This absolute witness immunity also applies to pretrial activities “inextricably tied” to testimony, such as alleged conspiracies to testify falsely.  In other words, an officer cannot be sued for allegedly conspiring with others to present false testimony.

Since Briscoe, the courts have clarified that officer-witnesses are not immune from “non-testimonial” acts, such as creating falsified reports, tampering with documentary or physical evidence, or preventing witnesses from coming forward.  In Lisker v. City of Los Angeles, 780 F.3d 1237 (9th Cir. 2015), detectives argued that their notes in the Murder Book were “inextricably tied” to their testimony, as the purpose of the notes was to memorialize the substance of their eventual testimony and they were not mean to be presented at trial.  However, the Ninth Circuit found that the materials in the Murder Book are documentary and physical evidence that can affect charging decisions, plea bargaining, and cross-examination of the investigation officers, and therefore fall outside the scope of absolute testimonial immunity.

While testimonial immunity shields an officer from a civil lawsuit, officers should, of course, be honest when on the stand—the most obvious reason being that they are taking an oath to tell the truth and it is the right thing to do.

Moreover, dishonesty can be raised to impeach and undermine the credibility of an officer—whether in a criminal or civil matter.  An officer who has been proved to have lied will be placed on a “Brady list.” Criminal defense attorneys often have access to this Brady list and can request the officer’s records relating to dishonesty.

In a civil matter, if an officer is being sued for other alleged misconduct, such as excessive force, a plaintiff will likely also be able to obtain records relating to dishonesty because it goes to credibility.

With the new laws regarding disclosure of peace officer records, such as SB 1421 and AB 748, agencies are required to produce records in response to public records act requests related to an incident where there has been a sustained finding of dishonesty by a peace officer relating to the reporting, investigation, or prosecution of a crime (such as testifying falsely at trial).

Finally, absolute immunity only covers civil cases, and officers can still be prosecuted for criminal perjury and/or be subject to employee discipline including termination. Therefore, while officers should not have to worry about civil lawsuits for what they say on the stand, honesty is always the best policy.

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