In Hudson v. Michigan, Justice Antonin Scalia argued that the exclusionary rule was unnecessary because of "[a]nother development over the past half-century that deters civil-rights violations," namely, "the increasing professionalism of police forces, including a new emphasis on internal police discipline." Scalia wanted to start a meme: Police officers do not require judicial scrutiny because they are professionals. There is a new police professionalism that did not exist decades ago.
Is Justice Scalia empirically correct? Or does he just make stuff up? Some of us think the latter, and thus two counter-memes have emerged.
Sarcatic, embittered, and unhelpful people will point to an example of police misconduct, saying: "Scalia's new professionalism! Sha! As if!" See, e.g., this blog.
Civilized folks have started another counter-meme. Scott Greenfield likes to say, "But For Video." As an in-the-trenches lawyer, he sees judges credit incredible police testimony. In criminal courts, judges accept a police officer's testimony as Gospel. If a police offier testifies that up is down, then down is also up.
But for the video contradicting a police officer's testimony, the judge would have believed the police officer. Even to my tin ear, that has a nice sound to it.
Greenfield's meme is almost poetic:
But For the Video
A Judge Would Have
Believed the Police Officer.
Another innocent man in jail.