Testilying: The art of manipulating the criminal justice system

Changing stories told on the stand after convictions is so common, court watchers have a name for it: "Testilying." A stark reality of the criminal justice system is that people lie. They lie to stay out of jail, to get out of jail, to curry favor with cops, the Philadelphia Inquirer reports. Police sometimes lie, too. Untangling who is lying in criminal cases can be “absolutely daunting,” said lawyer Richard Scheff, who recalled wrestling with the issue when he was a federal prosecutor. "There can be any number of reasons why people change their statements."

Scientific advances in crime solving — especially DNA testing — have freed the wrongfully convicted and proven guilt. Almost as a rule, experts say, courts don’t like to reopen old cases without compelling scientific evidence. Jennifer Creed Selber, former chief of the Philadelphia District Attorney's office’s homicide unit, acknowledged witness recantations are a “pervasive” problem. She believes witnesses usually recant because they fear retaliation from defendants. “If we attempted to prosecute every witness that perjures themselves, it would be a completely unworkable and impossible situation.”

Five years ago, the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University's law school started a database of criminal exonerations since 1989. The National Registry of Exonerations has catalogued over 2,000 cases.

DNA evidence spurred many, but the growing number of exonerations has led to a “profound change” in the perception of convictions, said Samuel Gross, senior editor of the registry.

“What the DNA cases showed everybody,” he said, “is that a lot of criminal convictions that no one had thought to think about were wrong.”

More than half of his registry’s cases involve perjury and/or false accusations.

Much lying stems from misconduct by police and prosecutors desperate to solve crimes, researchers say. “Witnesses are pressured, threatened, subjected to violence, offered secret deals such as reduced charges in the case at hand or for other crimes, or otherwise coerced or persuaded to falsely accuse the defendant,” a 2013 registry report concluded.

James McCloskey, the founder of Centurion Ministries, a New Jersey-based organization that has helped exonerate more than 50 prisoners since 1980, said about three dozen witnesses have recanted their testimony in Centurion cases.
“They want to reconcile themselves, really help right a terrible wrong,” McCloskey said, but they fear getting in trouble. It can take years to get a witness to publicly acknowledge the lie — and then additional years to actually win an exoneration.

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