For several years now, lawyers concerned with the administration of criminal justice have been troubled by the problem of "dropsy" testimony. This case shows why.
Then McMurty took the stand. In condensed but substantially verbatim form, he testified as follows:
The prosecutor stands on Frisina's testimony. Since the marijuana had been abandoned, he argues, its seizure was lawful. Defense counsel stands on McMurty's testimony. The arrest occurred when McMurty was ordered into the doorway, he argues, and since the officer then had no probable cause to arrest, the search which followed was unlawful.
Were this the first time a policeman had testified that a defendant dropped a packet of drugs to the ground, the matter would be unremarkable. The extraordinary thing is that each year in our criminal courts policemen give such testimony in hundreds, perhaps thousands, of cases — and that, in a nutshell, is the problem of "dropsy" testimony. It disturbs me now, and it disturbed me when I was at the Bar. (Younger, "The Perjury Routine", in The Nation, May 8, 1967, p. 596):
So far as I know, there has been only one statistical study of "dropsy" complaints. (Barlow, Patterns of Arrests for Misdemeanor Narcotics Possession: Manhattan Police Practices 1960-62; 4 Crim. L. Bull. 549 .) It confirms my impressions (pp. 556-557): "In the period after Mapp, the number of complaints alleging that the suspect dropped the contraband increased for all groups of officers. The Narcotics Squad showed the smallest percentages increase (45.3 per cent), although the rise in the number of their `dropsies' (93, from 205 to 298) was the largest. The plainclothesmen recorded a 71.8 per cent rise in complaints based on this circumstance, an increase from 32 to 55; while the uniformed officers showed the highest percentage increase (79.6 per cent), with the number of complaints alleging drops rising from 69 to 128."
Beyond any doubt, then, the problem exists. Its solution, I suppose, is prosecutors' work. The courts can only deplore. They are ill-equipped to persuade the police to change their practices or alter their philosophy. In Judge WRIGHT'S words (Veney v. United States, 344 F.2d 542, 543 [concurring opn.], cert. den. 382 U.S. 865), "the time is ripe for some soul searching in the prosecutor's office before it offers any more [`dropsy' testimony]."
Withal, Judges must decide the cases that come before them. In this case, my reasoning has taken four steps.
First. "Dropsy" testimony should be scrutinized with especial caution.
I am aware that in Bush v. United States (375 F.2d 602, 604) Judge (as he then was) BURGER wrote, with respect to narcotics policemen: "But it would be a dismal reflection on society to say that when the guardians of its security are called to testify in court under oath, their testimony must be viewed with suspicion."
With all possible deference, I disagree. When there are grounds for believing that "the guardians of its security" sometimes give deliberately false testimony, it is no "dismal reflection on society" for Judges to acknowledge what all can see. If courage is the secret of liberty, Whitney v. California (274 U.S. 357, 375, BRANDEIS, J., concurring), the first task of free men is to call things by their right name.
Second. Should the policeman's testimony seem inherently unreal, it will forthwith be rejected. This is a consequence of the first consideration.
Third. The slightest independent contradiction of the policeman's testimony or corroboration of the defendant's testimony will warrant suppression of the evidence. This too is a consequence of the first consideration.
Here, there was not independent contradiction of Frisina and no independent corroboration of McMurty. The testimony of each remains poised in the balance.
Fourth. Determine whether the burden of proof has been carried.
Had the issue been open, I would hold that the People must prove beyond a reasonable doubt that the seizure was lawful. But the issue is closed. The Court of Appeals declares the burden of proof to be the defendant's. (People v. Baldwin, 25 N.Y.2d 66, 70.) Where the testimony on one side balances the testimony on the other, as here, it is the People who prevail. Defendant's motion to suppress is therefore denied.
I come to this decision reluctantly. Our refusal to face up to the "dropsy" problem soils the rectitude of the administration of justice. One is tempted to deal with it now by suppressing "dropsy" evidence out of hand; yet I cannot. Reason and settled rules of law lead the other way, and Judges serve the integrity of the means, not the attractiveness of the end.
Somehow, policemen must be made to understand that their duty is no different.