Nick Krieger (@nckrieger):
Imagine that you’re sitting in your car at a gas station when three police officers approach your vehicle. Officer #1 opens your door and pulls you out of the car; he then begins assaulting you—slamming you against the car, throwing you to the ground, and punching you in the throat. All the while, Officer #2 and Officer #3 are standing nearby watching; they do nothing to stop the attack. Following the assault, the officers write you a ticket for failing to wear your seat belt and for no proof of insurance. You are then told that you are free to leave.
You seek medical attention at an area hospital, give a statement to the authorities, and file a complaint with the police department. The police department opens an internal investigation and questions all three officers. Officer #1 denies the assault and states that he never touched you. Similarly, the other two officers state that Officer #1 never assaulted you.
Sometime later, the police department obtains a copy of the gas station’s surveillance video. The video depicts Officer #1 physically assaulting you while Officers #2 and #3 stand nearby. The prosecuting attorney charges all three officers with obstruction of justice for lying to the department’s investigators and impeding the internal police investigation process.
The district and circuit courts dismiss the obstruction-of-justice charges, citing the Disclosures by Law Enforcement Officers Act of 2006, which provides that any compelled “information” given by a police officer during an internal investigation, and anything derived from that “information,” may not be used against the officer in a criminal prosecution.
The Michigan Court of Appeals reverses and reinstates the obstruction-of-justice charges against all three officers, reasoning that “information” includes only truthful or factual material, and that the officers were not immune from prosecution because their lies did not constitute “information” within the meaning of the statute.
Then the case goes to the Michigan Supreme Court….
On Thursday, a five-member majority of the Michigan Supreme Court (opinion written by Justice Zahra, joined by Chief Justice Young and Justices McCormack, Bernstein, and Larsen) reversed the Court of Appeals, holding that the lies told by the three officers during the internal investigation qualified as “information” within the meaning of the statute. Rather than citing the dictionary, as is the general rule under Michigan law, the Supreme Court majority relied on an online searchable database of words called the Corpus of Contemporary American English, which defines words according to anecdotal evidence of usage rather than their common and ordinary meanings. The Supreme Court observed that the term “information” is sometimes used in contemporary English to refer to falsehoods. The Supreme Court also relied on a 1999 decision, interpreting an entirely different statute, to conclude that because the Legislature had not included the word “truthful” before the word “information,” it must have intended the term “information” to refer to both truths and falsehoods. In the end, the Supreme Court majority ruled that the officers’ untrue statements constituted “information,” and that the officers were therefore immune from criminal prosecution on the basis of their lies.
Justice Markman (joined by Justice Viviano) dissented, explaining that the commonly understood meaning of the word “information” is “knowledge,” and does not include a falsehood or lie. Indeed, as he pointed out, a lie does not inform a person but rather misinforms a person. No reasonable person would say, after having been lied to, that he or she had just received “information” or “knowledge.” Justice Markman also explained why the 1999 decision cited by the majority was not persuasive. Among other things, he observed it was unnecessary for the Legislature to include the word “truthful” before the word “information” because the commonly understood meaning of the term “information” is already limited to truths.
Without question, the legislative purpose underlying the Disclosures by Law Enforcement Officers Act of 2006 was to promote the truth-seeking function of internal police investigations by providing immunity from prosecution for officers who step forward to provide necessary but otherwise-incriminating factual statements. By extending this immunity from prosecution to lies and falsehoods, however, the Michigan Supreme Court majority has entirely undermined the purpose of the statute. Police officers now have an incentive to lie during internal investigations, knowing that they can never be prosecuted on the basis of their lies (or anything derived therefrom) for perjury, obstruction of justice, or any other collateral offense. Quite simply, we will no longer be able to rely on internal police investigations to uncover the truth in many cases.