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February 2015
Ethical Defensibility: Should an Officer’s “Willingness to
Deceive”
Result in Automatic Certification Revocation?
By Thomas Martinelli, Adjunct Professor, Wayne State
University, Detroit Michigan, Independent Training
Consultant, Institute for Intergovernmental Research,
Tallahassee, Florida, and Michigan State University’s
Intelligence Toolbox Program, East Lansing, Michigan, and
Member, IACP Police Professional Standards,
Ethics, and Image Committee
The concept of Ethical Defensibility provides all sworn
personnel with the philosophical
tools and analytical skills necessary to weigh value-based
alternatives, resulting in the
repetitive acts needed to protect, preserve, and defend the
integrity of the police
profession.
“Oh, what a tangled web we weave,
When first we practice to deceive!”
—Sir Walter Scott, Marmion
ying, deception, and the omission of truth (when duty dictates),

all fall under a “willingness to deceive” in
police character policies. A character policy specifically
addresses the ethical challenges demanded of
all public servants regarding the mandatory need for and
relationship between truth-telling, duty-bound
honor, and justice. This is not about perjured written or spoken
words; they clearly are illegal and
unconstitutional. Rather it is about the philosophical tenets of
the profession that are necessary to instill and
reinforce the honor, pride, and higher standards that are the
foundations of policing. Protecting the integrity
and image of the profession involves educating officers at all
levels of an agency to prioritize truth telling,
without exception. It is a critical part of the job description.
The challenge today in policy compliance training (or core
values training) is that many character policies are
written in generalities, leaving them susceptible to arbitrary and
subjective interpretations. More times than not,
they are rarely defined, explained, or translated into real,
everyday policing situations. The profession arms its
street-level officers with tools for success, both weaponry and
street survival tactics, but generally ignores the
philosophical ethical dilemmas involving character that officers
are confronted with in the performance of their
duties. Such an oversight in training circles can be costly from a
litigation standpoint, both from citizen lawsuits
as well as internal litigation associated with running a
department.
Policing in general and sworn testimony in specific will always
be
about an officer’s character and that is why core values training
and
vigilant supervisory reinforcement of character issues are

critical to
an agency’s future successes.
Core value-based training curriculums and scenarios provide the
rank and file with a clearer understanding of
the differing levels of distinction associated with truth telling in
law enforcement and sends them a message
that a breach of this policy, when severe enough, could cost
them their career. It is incumbent upon the
leaders of the profession to demand higher standards of
character for all sworn members specifically
regarding core values initiatives and policy compliance.
Expecting high standards of character cannot be taken
for granted or implied, rather, those standards must be defined,
discussed, and supervised in order for the
profession to thrive.
Policies such as Conduct Unbecoming, Neglect of Duty,
Insubordination, and a Willingness to Deceive, when
litigated in labor law hearings and courts of law, can be
capricious, arbitrary, and difficult to grasp. Terminated
public servants, through their counsel, will argue there are more
appropriate, lesser disciplinary alternatives
than termination that would be adequate regarding such minor
character policy violations. Even civilian jurors
may not be convinced termination is the appropriate sanction
for police officer deceptions.
Firing a veteran police officer for failing to tell the truth in any
employment-related scenario can be financially
crippling in civil courts, create a challenging precedent in
disciplinary hearings, and damage a department’s
morale. Additionally, suspended officers who feel unfairly
disciplined for what they perceived were appropriate
acts (the gray areas of ethical policing) may say, “Next time I

will choose not to get involved and avoid such
situations. It is not worth it.”
Yet, clearly the criteria for termination is subject to a higher
standard when depriving a public servant of his or
her property right to work. Many years of training and
experience are invested in law enforcement employees,
and termination over character issues such as deception or
omissions is costly for all parties involved.
Taxpayer monies and agency manpower hours are often wasted
in civil court litigation defending a chief’s
decision to rightfully terminate an unethical “bad apple” in an
effort to preserve the integrity, image, and morale
of his or her department. Avoiding such liabilities can only
prove fruitful for any agency in the long run.
Balancing administrative policy compliance measures of “doing
the right thing” with subjective, subordinate
perceptions for the job is stressful, demanding, and many times,
a losing battle.
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The Latest of the Brady Progeny
Smith v. Cain, 565 U.S. ______ (2012):
Under the Brady progeny formula, “the
State violates a defendant’s right to due
process if it withholds evidence that is
favorable to the defense and material, to
the defendant’s guilt or punishment”
(emphasis added), citing Brady v.
Maryland, 373 U.S. 83, 87 (1963); See also
Giglio v. U.S., 405 U.S. 150 (1972); U.S. v.
Agurs, 427 U.S. 97 (1976).
Evidence is “material” within the meaning
of Brady, when “there is a reasonable
probability that, had the evidence been
disclosed to the defense, the result of the
proceeding would have been different.” U.S.
v. Bagley, 473 U.S. 667, 682 (1985).
The prosecutor has an affirmative duty to
discover any favorable exculpatory, material
evidence and give it to the defense. Kyles v.
Whitley, 514 U.S. 419 (1995).
“A reasonable probability does not mean
that the defendant ‘would more likely than
not have received a different verdict with the
evidence,’ only that the likelihood of a
different result is great enough to
‘undermine confidence in the outcome of
the trial’” (emphasis added). Smith, 565
U.S. ______ (2012).
In Smith, the undisclosed detective’s
statements that directly contradicted the sole
testimony tying the defendant to the crime

scene and his involvement violated the
defendant’s Fifth and Fourteenth Amendments’
guaranteed right to a fair and equitable trial.
Failing to tender this critical exculpatory
evidence demanded a new trial for the
defendant.
See also: LaChance v. Erickson, 522 U.S. 262 (1998).
The key is to vigilantly self-police one’s agency in the specific
core values critical for professional success. It is
imperative to teach and supervise the rank and file in the
differing levels of acceptable and unacceptable
police deceptions defined by case law, arbitration awards, and
the agency’s policy makers and put them in
written form with specificity and clarity. In doing so, leaders
provide employees with a roadmap for executing
the value-based alternatives available to them when confronted
with philosophical ethical dilemmas, both on
and off the job. This is the foundational concept of Ethical
Defensibility: forcing employees to consider the
philosophical side of policing (reduced internal investigations,
citizen complaints, and lawsuits), coupled with
the larger picture of protecting the agency’s (and profession’s)
image.
To presume all officers have mastered the subtleties, nuances,
and constitutionality of police ethical decision
making falls under the “supervisory logic of good faith”
paradigm, that is, “they should have known better, they
are professionals.”1 This article is intended to be a thought-
provoking continuation of previous Police Chief
articles, case law, and policies that have addressed police
deceptions, lies, and omissions; the disciplinary
process; and the future trends involving character issues in
policing. The emphasis here is to better educate
the rank and file in order to mentally prepare them for the

difficult ethical dilemmas officers face on a daily
basis and give them the tools to make the best decisions
possible and that can be used as a defense
whenever challenged.
The Brady Progeny
When officers are found to have intentionally engaged
in deceptive misconduct, whether on the streets, in
administrative investigations, in civil proceedings
during depositions, in internal affairs investigations, or
in labor law (disciplinary) hearings, they not only taint
their own ability to continue to serve as law enforcers,
but tarnish their department’s reputation on a wider
scale. Once it has been internally adjudicated that an
officer intentionally was deceptive, or worse,
demonstrates a pattern of deception, his or her future
effectiveness as a litigation witness is jeopardized.
Failing to train, as demonstrated by the landmark case
Brady v. Maryland and its contemporary progeny, is
organizational negligence that will cost a department
both financially and in regard to the good will of the
constituency served.
When one references the Brady progeny in law
enforcement training curriculums, the focus of that
specific training block deals with police officer
truthfulness and candor in relation to the job and an
employee’s effectiveness as a credible litigation
witness. The Brady v. Maryland ruling will celebrate its
40th anniversary this year, and its use and application
are still continually cited today. It is repeatedly
referenced in U.S. Supreme Court case law
addressing officer character, credibility, evidence
handling, and transparency issues within the
profession. In philosophical arguments dealing with
character, integrity, and professionalism of public

servants, courts focus on the overt duty of law enforcers
to always be truthful as demanded by the Due Process
Clause of the Fifth and Fourteenth Amendments.2
Untruthful law enforcers taint the entire criminal justice
system and the public’s perceptions of the profession.
The philosophical, legal argument constitutionally
posited by judges is that the government and its
agents cannot deprive a citizen of life, liberty, or
property without a fair and equitable opportunity to be
heard. In theory, the efforts to pursue justice by all
government agents must be honest, transparent,
forthright, and as proactive as possible in the presentation of
the prosecution’s case.
Any evidence the defense counsel (or appellate lawyers) can
produce post trial proving otherwise may result in
constitutional rights violation rulings; retrials; media scorn;
public backlash; and, most unforgiving, dismissal
of all criminal charges. Instead of protecting society, by cutting
corners, embellishing, withholding exculpatory
evidence, or not telling the whole truth, unethical officers (or
prosecutors) actually might free society’s
predators. The Brady progeny are the result of decades of U.S.
Supreme Court efforts to raise the standards of
accountability for those in law enforcement in order to uphold
the integrity of the system.
The onus of truth seeking will always be on the government and
its agents in order for the system to be fair
and equitable and to zealously protect the integrity of the
process. Ethical Defensibility training is about
protecting the integrity of the criminal justice process and
recognizing the need to zealously do so in every facet
of law enforcement. Any appearance of improprieties regarding
officer untruthfulness (or prosecutorial

misconduct) results in the negative perceptions and negative
ramifications regarding the agency’s image and
reputation and the overall criminal justice system.
Non-Compliant Deception Is a Violation of Public Policy
The Police Chief has, over the years, repeatedly published legal
and philosophical articles that have
addressed the need for self-policing in the virtues of honesty,
integrity, and professionalism, using the Brady
progeny as a foundation.3 It would behoove all academy
trainers and middle managers to review those
articles and make them a part of their training curriculums.
They provide a better understanding of the
evolution of case law regarding Brady and the U.S. Supreme
Court’s trend for a more focused demand for
public servant accountability from a due process perspective.
The justices, over the years, have repeatedly
placed the legal and ethical burden on government, to police
itself regarding character issues and integrity,
and this trend will continue. Just as the Department of Justice
consent decrees have been used to bring police
agencies in compliance with best practice standards, the
judiciary branch has made overt attempts to do so
from the bench.
There is no need to discuss these past articles due to space
constraints, but a Police Chief column written by
Professor Elliot Spector in April 2008 bears summarizing here
for clarity, emphasis, and foundation.

In 2008, a state court of appeals had ruled that a dishonest
officer is “unfit for duty” using the Brady progeny as
a public policy basis. They concluded that as a matter of public
policy, the officer’s intentionally deceptive
demeanor (thus a breach of his office) precluded him from
testifying in the future as a government witness.
Brady v. Maryland and its progeny dictate that, to be fair and
transparent, the prosecutor would have to
repeatedly tender to the defense counsel this officer’s history of
deception in every case he was a proposed
witness. This officer’s character flaws would undoubtedly be
addressed in cross-examination and closing
arguments, and cases would be, or could be, lost as a result of
his past, dishonest nature. The court’s
message was “dishonest cops are compromised witnesses.”
The appellate court wrote that the officer’s “proven record of
dishonesty prevents him from useful service as a
law enforcement officer. To require his reinstatement to a
position of great public trust in which he cannot
possibly serve violates public policy.”4 Granted not all
evidence in an officer’s personnel file of past
“deceptions” may be allowed into the record of a criminal case,
but if it is found relevant by the presiding
criminal court judge via a defense motion the due process
clause allows defendant’s counsel to play the
“once a liar, always a liar” card. Policing in general and sworn
testimony in specific will always be about an
officer’s character and that is why core values training and
vigilant supervisory reinforcement of character
issues are critical to an agency’s future successes.
Professor Spector strongly advocates the profession adopt the
appellate court’s ruling as a step in the right
direction and reinforced the need for the top administrators to

draw clear lines between “sanctioned lying and
prohibited lying.” The trend in policing is to better educate
officers in the nuances of acceptable deceptive
tactics and the agency’s specific dos and don’ts in a proactive
attempt to circumvent disciplinary measures for
officer untruthfulness or deception. Clearly sanctioned
deceptions in policing are necessary tools to fight crime
under very limited circumstances. Yet, a failure to specifically
define those circumstances for the rank and file
is a disservice to them, as well as the citizenry they serve and
can be used against an agency in a civil court of
law.
Additionally, he suggested that academy training circles teach
all police officers, from day one, that they can
lose their jobs, pensions, and property right to work as a result
of job-related, intentional deceptiveness. By
holding sworn employees to a higher character standard of
behavior and defining what those standards are,
will not the officer’s stakeholders (him- or herself and his or
her family and dependents), the public, the courts,
the police profession, and the citizenry be better off?
“[I]ssues of credibility regarding police will be greatly reduced,
leading to more successful prosecutions, a
reduced number of constitutional violations, and fewer liability
cases and losses,” and it might diminish or
“eliminate the ‘code of silence’ completely.”5 As a matter of
public policy, terminating deceptive officers can
only enhance the profession in the long run. Brady gave police
chiefs the authority and wherewithal to adopt
and enforce such proactive measures regarding officer character
issues and the need to maintain a high level
of professional integrity in this regard.
Interestingly, the challenge here is that this appellate case was

overturned by that state’s supreme court in
2009, for not having gone far enough. In their reversal, the
message to police policymakers and trainers was
very succinct: without explicitly and definitively prohibiting
employees from engaging in the act of intentional
deceptions (overt and omissions), termination is too extreme,
unconstitutional, and not the appropriate
remedy.6
For chiefs, middle managers, or disciplinary board members, the
administrative duties associated with disciplining officers in
deceptive policy violations are challenging, to say the least.
Terminating a veteran officer for character indiscretions, major
or
minor, is a very difficult chore to embrace but a hurdle that
must be
confronted.
The state supreme court, in essence, ruled that it was not “fair”
(and thus a violation of the Fifth and Fourteenth
Amendments regarding due process) to terminate an officer, as a
matter of public policy, for his past
indiscretions of misconduct and untruthfulness, solely based on
the Brady progeny. The court overturned the
lower court ruling by insisting that it did not go far enough in
demanding there be specific criteria, spelled out
either in agency policies, procedures, case law, and/or
arbitration reports. In order to justify terminating an
officer, the internal affairs mechanisms in policing had to be
much more forthright in defining such character
policies, non-compliant deceptions, and the disciplinary
potentials for such policy non-compliance.
Termination was not an appropriate sanction under these facts
due to a lack of “notice,” in failing to

comprehensively define job-related intentional deceptions.
In order to successfully terminate deceptive police officers as
being “contrary to public policy,” the state
supreme court ruled that there must exist a public policy that is
“explicit, well defined, and dominant”
specifically elaborating and focusing on the nexus between
police honesty and job retention.7 Attempting an
end-around sweep by suggesting the prosecutorial duties
espoused in the Brady progeny are specific enough
criteria for terminating deceptive police officers fails as a
policy standard and is bad law, according to these
justices. Because the Brady progeny addresses the due process
duties specifically placed on prosecutorial
acts or omissions (and indirectly, then, on law enforcers),
officer termination in this case was unconstitutional.
The cases requiring disclosure of an officer’s history of
untruthfulness have not commented on whether
such an officer could continue to be employed. As a result,
there is no explicit, (or even implicit) statement
regarding the continued employment of an officer found to be
untruthful. Further, even if the Brady case
law constituted a public policy against reinstatement of an
officer found to be dishonest, it provides no
guidance regarding what level of dishonesty would prohibit
reinstatement.8 (emphasis added)
Here, the justices do not suggest agencies cannot terminate
sworn personnel for major character flaws
regarding dishonesty, deceptions, and omissions, that is, major
unethical acts. Their strongly worded

Read the first three installments
of this series on Ethical
Defensibility in the November
2013, December 2013, and
January 2014 issues of Police
Chief online.
decision emphasizes that if an agency wishes to terminate an
officer for such egregious character
transgressions, as a matter of public policy, it must have a
written policy specifically saying so. It must be in
writing, and officers must be trained in, supervised in, and
disciplined in the policy. They specifically stressed
that such a policy must be “explicit,” “well defined,” and
“dominant.” Then, when a police chief moves to
terminate a deceptive officer, or successfully does so and the
ex-officer sues for reinstatement, the agency can
defend such decisions pursuant to the tenets of the Fifth and
Fourteenth Amendments, arguing that the officer
“knew lying, deception, and/or omissions” related to the job
could end his or her law enforcement career.
Whether this state case is ever challenged is irrelevant to this
discussion. Though this ruling is solely limited
to that state’s jurisdiction, the message is clear. The law
enforcement profession has to recognize police
deceptive practices and character issues will continue to be
major administrative challenges, and it would
behoove policy makers to better educate themselves and their
subordinates in the recent court rulings
referenced to continue to engage in best practices.
Subcultural Trends That Can Be Costly

It would be remiss not to briefly acknowledge some subcultural
pushback
trending recently in regard to disciplinary issues and officer
untruthfulness in relation to the Brady progeny.
For chiefs, middle managers, or disciplinary board members, the
administrative duties associated with disciplining officers in
deceptive
policy violations are challenging, to say the least. Terminating a
veteran officer for character indiscretions,
major or minor, is a very difficult chore to embrace but a hurdle
that must be confronted. It is not unusual to find
a scenario wherein a first-line supervisor writes up a
subordinate for a policy non-compliant act and is forced
to add a second charge for lying if the officer denied engaging
in such misconduct when initially confronted.
As a result of the trending Brady-Giglio issues discussed
previously, there has been a tendency to dismiss
the lying charge as unfounded or reduce it to a generic Neglect
of Duty charge by higher ups, in order to protect
the officer’s career. Or an agency’s disciplinarians may engage
in “euphemisms” in the charging sheet or
sentencing guidelines regarding the officer’s deceptions in order
to protect him and the agency against Brady
challenges down the road.9 This creates internal tensions
between first-line supervisors who may be trying to
“do the right thing” and their superiors who may be more
interested in protecting a veteran officer or the agency
and the agency’s image or both.
The legal trend now is to have a written policy strictly
forbidding job-related officer deceptions, lying, and
omissions. The policy should define the disciplinary sanctions
for lying in such a fashion that replicates

indiscriminate sentencing guidelines, with minimums and
maximums (the maximum, of course, being
termination). Then blocks of academy training and annual in-
service training must explicitly detail examples of
unacceptable, punishable deceptive practices versus legal, but
limited police deceptions. Such acceptable
deceptive practices must be designated as “unit specific,”
limited in nature, and necessary to achieve crime
enforcement goals. The rank and file, disciplinary unit, Internal
Affairs investigators, and policy makers must all
understand the nuances between the two.10 What should be
considered, or in the very least cannot be
ignored, in any character policy drafting and training curricula
is for all sworn personnel to know the following:
1. They can be charged, departmentally, for lying, omissions, or
deceptive acts defined as a “willingness
to deceive” (denials or cover-ups), in addition to the original,
underlying allegations of misconduct.
2. Courts are trending toward stricter public policy demands for
honesty and integrity in policing, through
self-policing measures.
3. Personnel files can be used to impeach an officer’s credibility
in labor law hearings and in criminal and
civil courts.
4. There are efforts around the United States wherein databases
are created for criminal defense
attorneys that are compiled from non-criminal justice realms
such as divorce proceedings and child
custody battles demonstrating officers’ character flaws and
deceptions, with a potential to be used in
the discovery phase of criminal and civil cases.

5. There is no justification or defense for lying or failing to tell
the whole truth during all internal
investigations at every level, and termination is the only
appropriate sanction for such policy non-
compliant acts in this limited scope.
Automatic certification revocation for deceptive acts of sworn
personnel may be harsh and overreaching. But
character flaws involving deceptions in policing can never be
tolerated and notice to sworn personnel that
unacceptable, deceptive police acts may be grounds for
termination is the first step in changing a subculture’s
perceptions in this regard.
Recommendations
Proactive leadership entails knowing and recognizing the
pitfalls and challenges of any profession and taking
whatever measures necessary to minimize or eliminate the
potential for liability. Policing is truly one of the last
noble professions, and it takes very unique individual character
traits to be a successful law enforcer.
Ethical Defensibility training empowers sworn personnel with
the analytic tools necessary to professionally
address ethical dilemmas associated with public service. Police
ethics requires analytic contemplation.
Contemplation presupposes that a uniform knowledge,
experience, and common sense exist. Instilling in
sworn personnel these philosophical tools for success creates a
culture of integrity within an agency and
provides a solid defense to any allegations of character
misconduct or unethical behavior. ♦
Notes:
1John Crank and Michael Caldero, Police Ethics: The

Corruption of Noble Cause (Cincinnati, Ohio: Anderson
Publishing,
2010).
2U.S. Const. amend. V and XIV.
3Jeff Noble, “Police Officer Truthfulness and the Brady
Decision,” The Police Chief 70, no. 10 (October 2003),
http://www.policechiefmagazine.org/magazine/index.cfm?
fuseaction=display_arch&article_id=118&issue_id=102003;
Lisa A. Judge, “Disclosing Officer Untruthfulness to the
Defense: Is a Liars Squad Coming to Your Town?” Chief’s
Counsel, The Police Chief 72, no. 11 (November 2005),
fuseaction=display_arch&article_id=744&issue_id=112005;
Elliot Spector, “Should Police Officers Who Lie Be
Terminated as a Matter of Public Policy?” Chief’s Counsel, The
Police Chief 75, no. 4 (April 2008): 10–12,
http://www.policechiefmagazine.org/magazine/index.cfm?fuseac
tion=display_arch&article_id=3193&issue_id=112013
tion=display&article_id=3231&issue_id=12014
tion=display_arch&article_id=1458&issue_id=42008#3

tion=display_arch&article_id=1458&issue_id=42008#3
The official publication of the International Association of
Chiefs of Police.
The online version of the Police Chief Magazine is possible
through a grant from the IACP Foundation. To learn more about
the IACP Foundation, click here.
All contents Copyright © 2003 - 2015 International Association
of Chiefs of Police. All Rights Reserved.
Copyright and Trademark Notice | Member and Non-Member
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fuseaction=display_arch&article_id=1458&issue_id=42008#3
(all accessed January 7, 2014).
4Kitsap County Deputy Sheriff’s Guild v. Kitsap County, 165
P.3d 1266, at 1271 (2007).
5Spector, “Should Police Officers Who Lie Be Terminated as a
Matter of Public Policy?”
6Kitsap County Deputy Sheriff’s Guild v. Kitsap County, 219
P.3d 675 (2009).
7Id.
8Id. at 679.
9Noble, “Police Officer Truthfulness.”
10The International Association of Chiefs of Police has model
policies available to all agencies that can assist in the drafting
of
policies that specifically address officer deceptions. Standards

of Conduct, Early Warning Systems, Interrogations and
Confessions, and Criminal Investigations are several “Unit-
Specific” policies that would prove valuable in defining
sanctioned
and prohibited officer deceptive practices. Model policies can
be purchased by visiting www.theiacp.org/policycenter.
Thomas J. Martinelli, JD, MS, is an adjunct professor in
Detroit, Michigan. He
is a practicing attorney and an independent training consultant
for both the
Institute for Intergovernmental Research, Tallahassee, Florida,
and Michigan
State University’s Intelligence Toolbox Program, East Lansing,
Michigan. He
trains in police ethics and liability and intelligence led policing
practices,
specifically addressing constitutional policing issues and
privacy protections.
He is a member of the IACP’s Police Professional Standards,
Ethics, and
Image Committee.
Please cite as:
Thomas Martinelli, “Should an Officer’s “Willingness to
Deceive” Result in Automatic Certification
Revocation?” Ethical Defensibility Part 4, The Police Chief 81
(February 2014): 24–29.
Top
From The Police Chief, vol. LXXXI, no. 2, February 2014.
Copyright held by the International Association of
Chiefs of Police, 515 North Washington Street, Alexandria, VA
22314 USA.

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