Can Police Lye on Affidavits  – Short Answer, NO! THAT IS A VIOLATION OF PC 118.1

Not if they Value their Career & Freedom and Don’t want civil responsibility

Police have no expectation of privacy on phone calls.  Police lines are recorded expectations end there!

Under Penal Code 118.1 PC, it is a crime for peace officers to make a knowingly false statement in a crime report, even if it is not a “sworn statement” made under oath. A violation is a wobbler that prosecutors can charge as either a misdemeanor or a felony.

Normally, a false assertion is only a criminal act if it is made under a declaration of perjury. This section makes it a crime even if the officer did not certify it as true or sign the report under penalty of perjury.

The language of the statute reads that:

118.1. (a) Every peace officer who, in their capacity as a peace officer, knowingly and intentionally makes, or causes to be made, any material statement in a peace officer report, or to another peace officer and the statement is included in a peace officer report, regarding the commission or investigation of any crime, knowing the statement to be false, 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.

(b) This section does not apply to a peace officer writing or making a peace officer report, with regard to a false statement that the peace officer included in the report that is attributed to any other person, unless the peace officer writing or making the report knows the statement to be false and is including the statement to present the statement as being true.

Examples

• an officer stating that a suspect had cocaine in his pocket (when he really had no drugs).
• a law enforcement officer reporting that the accused resisted arrest (when he really did not).
• a police officer stating that he saw the suspect with a gun in his hand (when he really found it in some nearby bushes).

Defenses

An officer can fight a false reporting charge with a legal defense. A few common defenses are:

• mistake,
• falsity relates to an immaterial matter, and/or
• false information by a third party.

Penalties

As a misdemeanor, the crime is punishable by:

• custody in county jail for up to one year, or
• misdemeanor (or summary) probation.

As a felony, the offense is punishable by:

• imprisonment in state prison for up to three years, or
• felony (or formal) probation.

Our California criminal defense attorneys will discuss the following in this article:

• 1. When is filing a false report a crime?
  • 1.1. Official capacity
  • 1.2. Criminal matter
  • 1.3. Material matter
  • 1.4. Knowingly
• 2. Are there legal defenses to 118.1 PC?
  • 2.1. Mistake
  • 2.2. Falsity relates to an immaterial matter
  • 2.3. False information by a third party
• 3. What are the penalties?
• 4. Can an officer get a conviction expunged?
• 5. Does a conviction affect an officer’s gun rights?
• 6. What can a person do if the victim of a false police report?
• 7. Are there related laws?
  • 7.1. Perjury – PC 118
  • 7.2. Malicious prosecution
  • 7.3. False report of a crime – PC 148.5

1. When is filing a false report a crime?

Penal Code 118.1 PC is the California statute that makes it a crime for a police officer to file a false report on a criminal matter.¹

A prosecutor must prove the following to prove a case under this code section:

1. the defendant is a police officer and while acting in his official capacity,
2. wrote a report in a criminal matter,
3. the report included false information about a material matter, and
4. the officer acted knowingly when he entered the false information in the report.²

Note that if the above are proven true, an officer is guilty even if he did not sign the report under penalty of perjury.

Questions often arise under this statute on the meaning of:

• official capacity,
• criminal matter,
• material matter, and
• knowingly.

1.1 Official capacity

This law only applies to those reports an officer files when he is acting as a police officer. It does not apply to any reports that he makes in his personal capacity.

In addition, it only applies to those reports he makes to the agency that employs him.

Example: Nicole is an officer with the LAPD. She writes two reports. One in her personal capacity on the recent rise in crime that she presents to her son’s grade school class. The other is on a criminal matter for the FBI.

Here, Nicole is unlikely guilty of a crime if she includes false information in either report. The first report is written in her personal capacity. The second is written for the FBI and not the LAPD.

1.2. Criminal matter

This code section only applies to criminal matters. Many times, police officers write reports in connection with purely civil or administrative matters, such as:

• traffic accidents,
• fires, or
• earthquakes.

If an officer is not reporting on a crime specifically, this section does not apply.

1.3. Material matter

For a guilty charge under PC 118.1, the false statement must be “material.” This means it must relate to something of significance or importance. This is opposed to a matter that is trivial or incidental in nature.³

Example: San Francisco police officer Jones is eating lunch at a diner. He gets a report of a shooting. He races to the crime scene and does not see the suspect. He later files a report. In it, he says he was eating in his car when he learned of the crime.

Here, Jones is not guilty of a crime. While it is false that he was eating in his car, this is of a trivial matter. He would be guilty, though, if he reports that he saw the suspect when he arrived at the crime scene. This is false information of a material matter.

1.4. Knowingly

An officer is only guilty under this law if he knowingly enters false information.

According to California criminal law, a person acts knowingly if he understands that facts exist which bring his actions within the provisions of this code section.⁴

Police often write their reports hours or even days after witnessing or investigating a crime. Memory does fade and falter. Honest mistakes in reporting are not criminal.⁵

Example: Nia is a San Diego police officer. She gets called to the scene of an assault case. The victim has a bloody nose. Nia files a report later that day and does not remember where the victim was bleeding. She states in her report that she believed the victim had blood over one eye.

Here, Nia is not guilty of a crime. While she was wrong in reporting on the location of the blood, this falsity was due to a mistake in recollection. She did not knowingly falsify the information.

2. Cops Lying 118.1 PC

2.1. Mistake

An officer is only guilty under this law if he knowingly includes false information in a report. This means it is a defense for an accused to show that:

• while he may have entered false information in a police report,
• he did so mistakenly and not on purpose.

2.2. Falsity relates to an immaterial matter

There can only be a PC 118.1 guilty charge if an officer falsified information on a material matter. This is opposed to information that is deemed trivial in nature. Therefore, it is a defense for a defendant to show that the false information was not on anything material to the case.

2.3. False information by third party

A police officer is not guilty of a crime if:

• he files a report of a crime, and
• includes in it false information given by a witness or other third party.

An officer is only guilty for his own false information.

Example: Marcos is an officer and responds to the scene of a battery. A witness lies and tells Marcos that he saw the suspect hit the victim “with his own eyes.” Marcos includes this information in his report of the case.

Here, Marcos is not guilty under PC 118.1. While his report includes false information, Marcos did not falsify anything. He just recorded a lie that was made by a witness.

3. What are the penalties?

A violation of this code section is a wobbler offense. This means the district attorney can charge it as either a misdemeanor or a felony.

As a misdemeanor, the crime is punishable by:

• custody in the county jail for up to one year, or
• misdemeanor (or summary) probation.⁶

As a felony, the offense is punishable by:

• imprisonment in state prison for up to three years, or
• felony (or formal) probation.⁷

4. Can an officer get a conviction expunged?

An officer convicted of this crime is entitled to an expungement if he:

1. successfully completes probation, or
2. completes a jail term (whichever is relevant).

If a party violates a probation term, he could still possibly get the offense expunged. But this would be in the judge’s discretion.

Under Penal Code 1203.4, an expungement releases an individual from virtually “all penalties and disabilities” arising out of the conviction.⁸

5. Does a conviction affect an officer’s gun rights?

A conviction under this statute may have a negative effect on a defendant officer’s gun rights.

According to California law, convicted felons are prohibited from acquiring or possessing a gun in California.

This means that:

• if an officer violates the law and the prosecutor charges him with a felony, and
• the accused is convicted of the same,

the defendant will lose his rights to own and possess a gun.

6. What can a person do if the victim of a false police report?

There are several things a person can do if he is the victim of a false police report. These include:

1. cross-examine the officer – a criminal defense attorney would do this during a California jury trial. The lawyer would hopefully be able to make the officer provide information that is inconsistent with his report.
2. file a complaint – a person can file a police misconduct complaint with the officer’s department. If the person was charged with a crime because of the report, a complaint may result in the reduction or dismissal of charges.
3. run a Pitchess motion – a Pitchess motion is a request by the defense to access an officer’s personnel record. This access is sought to see if other people have complained about the officer committing similar misconduct.
4. Sue the police  – 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 a person can prove that the officer lied and that the false statement caused him to be wrongly arrested, convicted and/or jailed. Many of these lawsuits get brought under United States Code 1983.

7. Are there related offenses?

There are three laws related to Penal Code 118.1. These are:

1. perjury – PC 118,
2. malicious prosecution, and
3. false report of a crime – PC 148.5.

7.1. Perjury – PC 118

Perjury is a crime in California per Penal Code 118 PC. California law defines “perjury” as deliberately giving false information while under oath.

Note that this crime can be committed by:

1. police officers, and
2. non-officers alike.

7.2. Malicious prosecution

Malicious prosecution is a civil lawsuit filed by a person that is the victim of another’s:

• meritless, and
• harmful claim.

To succeed in the suit, the plaintiff must prove:

• the defendant made a frivolous claim against the plaintiff,
• the lawsuit was filed not to win, but rather for some other purpose, and
• the plaintiff suffered damages as a result of the frivolous claim.

Unlike malicious prosecution, a charge under PC 118.1 is criminal in nature and filed by the state.

7.3. False report of a crime – PC 148.5

Penal Code 148.5 PC is the California law against making a false report of a crime. Specifically, this section applies when a person makes a false report of a crime to a:

• police officer,
• prosecutor,
• grand jury, or
• state or local employee assigned to accept reports from citizens (such as a 911 operator).

Note that while PC 118.1 applies to police officers, PC 148.5 applies to only non-officers.

Legal References:

cited https://www.shouselaw.com/ca/defense/penal-code/118-1/