Support SB 1585: A corroboration requirement

is reasonable for undercover narcotics operations

Corroboration is a well understood term and includes any supporting evidence

Corroboration does not have to be a tape or video of a buy. In fact, under this legislation it can be any evidence that makes the undercover officer’s statement more likely to be true. It could include:

¨ Fingerprints

¨ Evidence of an effort to evade the police

¨ Recovery of drug paraphernalia

¨ The existence of a gun

¨ Other witness testimony

Undercover officers may have reason to be unreliable

Long term undercover narcotics drug stings are evaluated based on the number of arrests. Undercover officers are expected to produce arrests after the expense of a lengthy operation. If an undercover officer doesn’t have enough to make the case he was sent to make, he could be tempted to make those numbers some other way—by naming those he is expected to name regardless of their actual guilt or innocence. A troubled person like Officer Coleman in the Tulia case may have a particularly strong incentive to boost his numbers at all costs. That particular set of busts, because of the large number of arrests, suddenly turned Coleman literally into “Lawman of the Year.”

The perjured statements of a handful of problem officers make headlines

In fact, around the state there are instances where officers lied to get warrants and arrests. In San Antonio in February, federal prosecutors dismissed two cocaine cases and scaled back a third because an undercover police officer lied in a sworn statement requesting search warrants. In Austin, Officer Hector Polanco’s cases are getting extra scrutiny after the release of Christopher Ochoa, who was convicted based on a false confession he says was coerced. Ochoa was released when DNA evidence proved his innocence, but Polanco denies the charges and has since been promoted.

The background of an undercover officer is protected from the defense

Unlike other types of eyewitnesses, whose motives can be explored by the defense attorney, defendants may not discover the background of an undercover officer. Courts assume officers are under no pressure to lie, and would never lie. Unfortunately, that’s not always realistic, since undercover officers literally lie for a living. They’ve spent months or even years lying to everyone they know about everything they do as a function of their undercover work. That’s why it’s not unreasonable to insist that their veracity be corroborated. In the first Hearne case that went to trial, defense attorneys could interrogate the possible motives of the sole witness (the undercover agent in that case was not a police officer, but was a criminal given parole in return for doing the undercover operation) and discredit him. In Tulia, defendants could not bring up Officer Coleman’s troubled past.