There are certain lies that law enforcement officers tell because they are trained to. Among people in the defense community, we joke that if a police officer uses the phrase “based on my training and experience” it is almost certain that they are making stuff up. For example, “based on my training and experience, I recognized the suspect’s behavior as being consistent with drug sales.” I have seen officers testify to this effect (meaning under oath) and the conduct they are referring to is having two cell phones, having a few hundred dollars on one’s person, or even leaving an apartment to talk to someone who is parked outside and then going back into the apartment. Police officers are literally trained to use the phrase “based on my training and experience” when they testify BECAUSE there is case law that addresses how officers are allowed to rely on their training and experience to determine probable cause or reasonable suspicion. The thing is when the police finally get to testify about their observations, it is after they have searched the person or investigated the person and found enough to make an arrest. If they find nothing, they don’t have to explain their reasons for conducting the search. So there is this bias baked into the system. The cop looked for evidence of a crime because he suspected there was evidence to be found, he found evidence of a crime, so his suspicion was correct. End of story. Or is it?
In this blog post, I want to rant/vent about a particular piece of malarky that officers used to testify about consistently as part of their training and experience. I say “used to” because it has been a long time since I have seen this particular lie in a case, but if any of you dear readers have come across this recently, please let me know as I am curious if the lie is still alive and well. The lie I am referring to is that smoking marijuana produces a green film on the consumer’s tongue.
Let me give you a second to process that. Police officers document in their police reports and eventually testify that they looked at the subject’s tongue and noticed a green film on it that “according to my training and experience, is consistent with having consumed cannabis.” You might be thinking, “Joel, how do you know the police are lying when they say they saw a green tongue?” That is an excellent question, dear reader, and it’s one that warrants a brief tangent about burdens of proof.
It is almost impossible to prove a negative, meaning it is almost impossible to prove something does not exist. Most religions are built on this fact. In the realm of faith, there is nothing wrong with this. However, in the realm of reason and logic, this is crucial. Our legal system recognizes the virtual impossibility of proving a negative and therefore places the affirmative burden of proof on the person or party trying to establish the existence of something. In the criminal arena, that burden always lies squarely with the state and the defense need not prove innocence, because to do so requires proving that something, namely a crime, did not happen. It is infinitely more reasonable to put the burden on the prosecution to prove that a crime in fact did happen.
So back to the green tongue and how I know that the police are lying about it. First of all, in all my years representing DUI defendants and in all of those cases where the police document that they observed the defendant had a green tongue, I have never, not once, received in disclosure (or otherwise) a photograph of the so-called green tongue in question. That bears repeating. Not once has a police officer photographed the green tongue that they have no qualms discussing in their written report. If the burden lies with the state, it is on them to prove the green tongue in fact was real and I submit that the police officer’s words without more should not be sufficient proof to meet that burden.
A second way that I feel perfectly confident saying that the police are lying about the green tongue is that outside of law enforcement, I have never heard any allusions or references to green tongues being an indication of marijuana consumption. It’s never been referenced in any stoner movie classics like “Half Baked,” “Dude, Where’s My Car?,” “Pineapple Express,” or “The Big Lebowski.” And, let’s be real, if smoking pot really did turn your tongue green, don’t you think it would be a central plot in at least one of these movies? (If any of my readers can point me to an example in pop culture or media of green tongues being referenced in relation to pot smoking, please do). One would expect that such a notable indication of marijuana consumption would be part of the common discourse. And yet, the police need to rely on their go-to phrase of “based on my training and experience.”
If you or a loved one are facing criminal prosecution, you need to know that the other side may not be playing fair and you need a lawyer who is hip to the tricks they play and will take them to task. Give me a call!
