We grant police officers enormous power. Obviously, we give them the power to arrest people and take them to jail.
But cops also have the power of writing police reports (or crime reports) and sending these reports to the district attorney. Prosecutors rely on these reports to decide whether to file criminal charges, and what charges to file.
Fortunately, most cops are generally honest and do their best to file accurate and truthful police reports. What happens when cops lie? What happens when they file false police reports?
The simple answer -- sadly -- is that it can cause (and does cause) innocent people to get wrongly prosecuted, convicted and jailed.
This article will examine California Penal Code 118.1, the section making it a crime for police officers to file reports with deliberately false information. Specifically, we will examine:
You may also visit our pages on misdemeanors; felonies; wobblers; mistake of fact as a criminal defense; dirk and dagger laws; probable cause for traffic stops in DUI cases; motions to suppress evidence; Pitchess motions; and U.S. Code 1983 civil rights lawsuits.
Penal Code 118.1 states that
Every peace officer who files any report with the agency which employs him or her regarding the commission of any crime or any investigation of any crime, if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false, whether or not the statement is certified or otherwise expressly reported as true, is guilty of filing a false report punishable by imprisonment in the county jail for up to one year, or in the state prison for one, two, or three years. This section shall not apply to the contents of any statement which the peace officer attributes in the report to any other person.1
The key to this section is that it applies regardless of whether or not the officer signs the report under penalty of perjury.
Sometimes police do file their reports under penalty of perjury. They sign an oath directly in the report. Or they sign a separate "statement of probable cause" attesting under oath that everything they say in the attached reports is true to the best of their knowledge and belief.
In these situations, if they get caught lying in the report, they can be prosecuted directly under Califorina perjury laws.2
But many times police officers file crime reports, investigation reports, witness statement reports and detective follow-up reports without necessarily attesting to them under penalty of perjury. With Penal Code 118.1, no oath or affirmation is required. They can still be prosecuted any time they report on an alleged crime untruthfully.
Certain conditions must be met, however, before a false report becomes a crime.
Let's examine this statute part by part:
Penal Code 118.1 only applies to those reports an officer files in his official capacity with the agency that employs him. An LAPD officer who writes a report for the Sheriffs Department, the FBI or some other agency, for example, would probably not fall with in the ambit of this section.
Penal Code 118.1 only applies to criminal matters. Many times police officers write reports in connection with purely civil or administrative matters, such as traffic accidents or fires or earthquakes. If they are not reporting on a crime specifically, the section does not apply.
The false statement in the police report must be "material." This means it must relate to something of significance or importance, rather than something trivial or incidental. 3 Consider an example:
San Francisco police officer Jones is eating a meal at Chipotle when he gets a radio call of a shooting in the neighborhood. He responds immediately. When he files his police report, he states that he was driving on patrol when he got the call. This is obviously false. But everything else in the report is truthful.
Even though the statement (about his location when he got the call) is false, it would probably not be deemed material so as to trigger Penal Code 118.1. But let's change the facts:
When officer Jones arrives at the scene, he sees the suspect running away. Other officers catch and apprehend the suspect. The gun (the one used in the shooting) is found in some nearby bushes. Officer Jones, wanting to help "seal" the case for the prosecution, lies and states in his police report that "as I arrived at the scene, I observed the suspect throw the gun into the bushes."
Now this false statement in the police report definitely would be considered material. If it could be proven that officer Jones lied in this way, it would fall right within the ambit of Penal Code 118.1.
It's not uncommon for police to misrepresent aspects of an event based on misperception or innocent misrecollection. Police often write their reports hours or even days after witnessing or investigating a crime. Memory does fade and falter. Honest mistakes are not criminal4 (for a larger discussion of this topic, read our article on "mistake as fact" as a criminal defense in California law).
To commit a crime under this section, the officer must knowingly and intentionally lie with an intent to be deceptive. Consider an example:
Deputy Torres files a police report in connection with a DUI arrest. In the report, he states that he initially makes the traffic stop because he sees the driver "weaving within the lane" for 4 blocks. A video of the incident later shows that Deputy Torres only follows the car for 2 blocks, and thus could only have seen the driving for 2 blocks. When Torres writes the police report, he pictures the distance in his mind as 4 blocks. He is honestly mistaken.
Here, the deputy is not liable for "filing a false police report" under Penal Code 118.1. Granted, he may have been negligent for not being more certain and precise in his reporting. But his statement about the distance was mistaken rather than knowingly false. Let's change the facts with the next example:
Deputy Torres knows for a fact that he only saw the driver weaving for 2 blocks. But he worries that this may not be enough "observed bad driving" to give him probable cause for the DUI traffic stop (especially of the defense lawyer runs a motion to suppress
evidence in court). So in order to justify his traffic stop, and to help bolster the case in court, he lies and states in his police report that he observed the driver weave for 4 blocks.
Here, Deputy Torres clearly is liable for issuing a false police report. The misstatement about the distance is knowingly false and deceptive. It is material in that it purports to give him the probable cause needed for his DUI traffic stop. And it relates to the criminal matter of driving under the influence.
One of every police officer's key duties is to take statements from witnesses to a crime, and then to document those statements in the police report. Witnesses make false statements all the time. Sometimes they make honest mistakes; sometimes they misrecollect about events; sometimes they outright lie. The cop may even know that the witnesses are lying.
Penal Code 118.1 specifically shields police from criminal liability when they merely report statements from third-party witnesses, even when those statements prove to be false. This makes sense. An officer's job is merely to report, as accurately as possible, what other people have to say. It's for the prosecutor, the judge -- and ultimately, the jury -- to determine whether the statements are credible and true.
But what about cases where an officer falsely reports a third-party statement? Take an example:
Officer Lindy detains a suspect and searches him for no apparent reason. He recovers a switchblade from the suspect's pocket and arrests him for possession of a dirk or dagger. 5 In order to justify his actions under under California search and seizure laws, Officer Lindy files a false police report. He writes that "a man flagged down my patrol car, pointed to the suspect, and said 'I just saw that dude stick a switchblade in his pocket.'" In truth, there was no such witness.
Officer Lindy's fabrication of the witness statement clearly seems to meet the elements of Penal Code 118.1. It's knowingly false, material, and relates directly to a crime.
But the problem is, the language of the statute reads: "This section shall not apply to the contents of any statement which the peace officer attributes in the report to any other person." The language seems to encompass any situation where the officer attributes a statement to a third party, not merely attributions that are honest and truthful.
Is this a loophole in the law? Did the California Legislature fail to foresee this issue when they drafted Penal Code 118.1?
As it stands, no court cases specifically address this issue.
As a misdemeanor, the penalty for filing a false police report is summary
probation and up one year of county jail.
As a felony, the punishment for issuing a false police report is either (a) formal probation with up to one year of county jail, or (b) 16 months, 2 years or 3 years in California State Prison.
If the district attorney has filed charges under Penal Code 118,1, chances are the police department has already conducted an internal affairs investigation and taken disciplinary action against the officer.
Every prosecutor knows it is notoriously difficult to convict police officers of crimes committed in the course of their duty.
Juries tend to be biased in favor of peace officers and to see them as honorable and as protectors of the community. In close cases, they are more likely to give cops the benefit of the doubt than they would other defendants.
Typical defenses in a Penal Code 118.1 case might include taking the position that
- the misstatement in the police report was an honest mistake
- the false statement related to something insignificant rather than material
- while the statement was technically inaccurate, the spirit of it is true
- the statement is attributed to a third party, not the officer
A peace officer being charged -- or even investigated -- for making statements in a police report is urged to seek counsel from a law firm with expertise in the criminal defense of California police officers.
Unfortunately, police officers may lie about you in their reports and it is your word against theirs. Prosecutors and judges often accept the word of police officers uncritically. Jurors are more apt to believe the testimony of police over the testimony of other witnesses.
That said, if the police lied about you in their reports, there are a number of things you and your California criminal defense attorney can do:
Investigate the case
A good defense lawyer and private investigator should independently investigate the case. Many times they will uncover evidence showing the officers' statements couldn't possibly be true. Take an example:
Officer Tilly finds a rock of cocaine on the ground and says in his report that he saw the suspect spit it out of his mouth. This is false. The suspect never had it in his mouth. The defense lawyer has the rock examined in a laboratory and finds no traces of the suspect's saliva or DNA on it. Upon reviewing the lab reports, the prosecutor quickly dismisses the case.
Cross-examine the officer
One of the best tools for and defense lawyer is to cross-examine the police officer vigorously. Many time the officer will slip-up, contradict himself, testify inconsistently with his police report, and come across as being deceptive.
File a Complaint
If the officer made false statements in his police report, consider filing a complaint with his / her department. If the complaint is taken seriously, it may give you leverage to negotiate with the prosecutor to reduce or dismiss the charges.
Also, suppose the case ultimately goes to trial. At trial, the defense asserts that the cop lied in the reports. The jury will probably find the defense more convincing if the defendant had reacted to the false statements by filing a complaint.
Run a Pitchess Motion
In California law, a "Pitchess Motion" is a request by the defense to access the police officer's personnel record to see if other people have made complaints about similar misconduct. If they have, the defense may be able to use these people as witnesses against the officer. Let's look at an example:
The defendant claims Officer Bee lied in his report. The judge grants the defense lawyer's Pitchess motion. Officer Bee's department turns over 5 complaints by other citizens claiming that the officer lied in their cases. The defense lawyer issues subpoenas to call these people as witnesses at trial. When the D.A. sees the credibility problem this makes for the officer, the D.A. folds and drops the case.
Sue the Police
Of course, there's always the possibility of filing a lawsuit against the police officer, his department and the city. This is usually only a viable option if you can prove that the officer lied and that the false statement caused you to be wrongly arrested, convicted and/or jailed.
Many of these lawsuits get brought under United States Code 1983. This section allows you to sue any person who, acting "under color of law," violates your Constitutional rights. This includes such things as improper use of force, excessive force, and wrongful arrest.
Litigants who successfully sue police and cities under U.S. Code 1983 and tort laws can potentially recover millions of dollars in damages.
California law has a couple of closely related statutes: (a) perjury, and (b) making a false report of a criminal matter.
Found in Penal Code 118, California perjury laws make it a crime deliberately to give false testimony under oath. Like with Penal Code 118.1, perjury only exists when the person makes a knowingly false statement concerning a material fact.
If an officer files a false report, and signs the report under oath, he / she can be prosecuted directly for perjury. The penalties for perjury are more severe than with penal Code 118.1. Perjury is not a wobbler but a straight felony, and it carries a 4-year maximum prison sentence rather than 3 years.
If the false report is not signed or attested to under oath, then prosecutors would turn to Penal Code 118.1. It applies to all police reports, not just those submitted under oath.
False report of a crime
Found in Penal Code 148.5, false report of a crime makes it illegal for anyone to make a knowingly false report of a criminal matter to a police officer, prosecutor or grand jury.6 Penal Code 148.5 violations are misdemeanors, punishable by only up to 6 months in jail.
The key distinction with this section is that it applies to all people, not just to police officers. In fact, the statute is intended to address situations with civilians abuse the criminal process by falsely reporting crimes to law enforcement.
Call us for help...
If the police have issued a false report against you, or if you're a California peace officer charged with Penal Code 118.1, we can help. Call us at Shouse Law Group to discuss your situation.
We have local offices throughout California, including Los Angeles, San Diego, San Bernardino, Riverside, Ventura, Orange County, Long Beach, San Jose, Oakland and the San Francisco Bay Area.
1 California Penal Code 118.1.
2 See California Penal Code 118 - Perjury. (a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.This subdivision is applicable whether the statement, or the testimony, declaration, deposition, or certification is made or subscribed within or without the State of California.
3 For a discussion of materiality in the context of perjury law, see People v. Feinberg, (1997) 51 Cal.App.4th 1566 ("The test for whether a statement is material in a perjury prosecution (California Penal Code 118) is whether the statement or testimony might have been used to affect the proceeding in or for which it was made, or whether the statement could probably have influenced the outcome of the proceedings.")
4 See California Jury Instruction - Criminal 7.24 -- Willfulness and knowledge required in connection with perjury ("A statement made under an actual mistake and in a belief that it is true is not perjury even though the statement is false.")
5 See California Penal Code 16590 PC -- Manufacture, import, sale, supply or possession of certain weapons and explosives; punishment; exceptions; definitions. ("(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison... (3) Carries concealed upon his or her person any explosive substance, other than fixed ammunition. (4) Carries concealed upon his or her person any dirk or dagger.")
6 See Penal Code 148.4 - false report of a criminal matter. (a) Every person who reports to any peace officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, the Attorney General, or a deputy attorney general, or a district attorney, or a deputy district attorney that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor.
(b) Every person who reports to any other peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor if (1) the false information is given while the peace officer is engaged in the performance of his or her duties as a peace officer and (2) the person providing the false information knows or should have known that the person receiving the information is a peace officer.
(c) Except as provided in subdivisions (a) and (b), every person who reports to any employee who is assigned to accept reports from citizens, either directly or by telephone, and who is employed by a state or local agency which is designated in Section 830.1, 830.2, subdivision (e) of Section 830.3, Section 830.31, 830.32, 830.33,830.34, 830.35, 830.36, 830.37, or 830.4, that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor if (1) the false information is given while the employee is engaged in the performance of his or her duties as an agency employee and (2) the person providing the false information knows or should have known that the person receiving the information is an agency employee engaged in the performance of the duties described in this subdivision.
(d) Every person who makes a report to a grand jury that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor. This subdivision shall not be construed as prohibiting or precluding a charge of perjury or contempt for any report made under oath in an investigation or proceeding before a grand jury.
(e) This section does not apply to reports made by persons who are required by statute to report known or suspected instances of child abuse, dependent adult abuse, or elder abuse.