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Perhaps Justice Felix Frankfurter said it best in Watts v. Indiana, 338 U.S. 49, 52 (1949), suppressing in that case a confession coerced by psychological rather than physical means—"There comes a point where this Court should not be ignorant as judges of what we know as men [and women]."

Theretofore, the Supreme Court had astonishingly chosen to disregard legal attacks on confessions that had been contested by defendants in the state courts, as long as allegations of physical force upon these defendants weren't implicated. For Frankfurter and the Supreme Court, finally, how could the Court ignore what all men and women knew just by being sentient beings—that suspects may indeed just as readily falsely admit crimes they didn't actually commit based on psychological coercion inflicted upon them?

And while today's judges may, indeed, still theoretically carry Frankfurter's thoughtful comment on their tool belts, they sometimes simply choose to leave it there. Indeed, the legendary Manhattan District Attorney Frank Hogan's brief in 1971 to the New York Court of Appeals in People v. Berrios, 28 N.Y. 361 (1971), actually argued—albeit odd for a prosecutor—that the courts should put the evidentiary burden on prosecutors to prove the validity of so-called "dropsy" testimony.

What, one may ask, is "dropsy?" It's the colloquial name given to the far-more-than-routine identical police testimony made in order to meet the dictates of the then-emerging search and seizure jurisprudence. "And what did you then observe?"  "I observed the defendant drop the contraband to the ground as I approached him."

Nonetheless, the majority of a divided Court of Appeals declined the district attorney's own cry that judges—notwithstanding their private and sometimes even public expressions of a growing scandal that there was a "substantial" amount of false dropsy testimony. They were permitted to remain "ignorant" (to use Frankfurter's pointed phrase) of the reality of what was known by everyone to be going on in the streets and in the criminal courts of New York State daily. Indeed, Chief Judge Stanley Fuld's poignant dissent in Berrios that described  "reason and the imperative of judicial integrity," in some respects spoke more to how judges should decide cases when they listen to witnesses, than how the police were testifying.

Why does this come up now? To begin, if you were to sit in traffic court waiting for your own personal case to be called—I've sadly done that too often lately—you might think about how you would decide credibility in a particular case. Same language, same words, same contemporaneous notes. Okay, so I'm not totally objective.

But while you (or I) might find a defendant guilty in perhaps six or seven out of ten traffic cases, the presiding judge more than often will convict on nine out of ten, when the tenth involved a technical defense, e.g., the officer scribbled down the wrong address or the wrong maximum speed. Why is a judge who hears one case after another on a daily basis reaching a negative conclusion for the individuals ticketed? Think about it.

But that is a brief personal aside. This article is about judges who have to deal with police testimony, day in and day out, and who may be speaking out about the newest iteration of dropsy. On September 12, 2019, a New York Times headline read, "Officers Said They Smelled Pot. The Judge Called Them Liars." Indeed, Bronx Acting Supreme Court Justice April A. Newbauer, in People v. Hill, Ind. No. 853-2017 (Sup. Ct., Bronx Co., rejected apparently somewhat standard police testimony given by two police officers who testified before her in a routine traffic stop that ultimately led to a search of the defendant's trunk that disclosed ammunition and ultimately a firearm. The hook to "justify" the trunk search was the officer's challenged testimony—"I smelled an odor of marijuana"—apparently the dropsy du jour of the City's police department.

Now, if Judge Newbauer were hearing a police officer's "marijuana story" for the first, or even second time, she might have ruled differently. And, even without calling them "liars" (as The New York Times headline significantly overstated), she might have rejected the testimony, perhaps having not only heard it before from her witness stand but in scuttlebutt from colleagues too, that such testimony is routine—although she didn't say how she came to the conclusion that such testimony is indeed routine nowadays.

Rather, she said: "The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop…So ubiquitous has police testimony about odors from cars become that it should be subject to a heightened level of scrutiny if it is to supply the grounds to search." (Emphasis added).

Now, The Times is correct that it is rare, indeed, for a sitting judge to go this far to talk about a recurring "problem" in police testimony. And without, here, meaning to in any way attack the police generally over such traffic stops, for a judge to go this far in the way she did does raise the issue of a judge apparently having travelled de hors the record of the case before her to conclude that the testimony in her specific case was questionable—maybe false.

How far, then, may a judge go in doing so without citing meaningful authority for the proposition that such police "marijuana odor" testimony is, indeed false and "ubiquitous"  in seeking to justify a vehicle search? Yes, she did cite two decisions (which didn't challenge the testimony), although, admittedly, the police testimony in Hill did appear inconsistent with the "odor" hook, given the absence of ashes, cigarettes, rolling paper, clips or lighters, and nothing about anything being thrown out the vehicle's window.

Of course, one might argue that Judge Newbauer's "ubiquitous" comment was dicta, and so her going outside the record may arguably not have been such a big deal, after all. But purely from the perspective of "How Judges Decide" cases—certainly not a science, by any means—one certainly should want to know more about the research process a judge has gone through and what specific information she relied on when making the kind of bold "ubiquitous" statement she made in her decision (irrespective of whether the New York Times chose to describe it as "scathing").  One would probably want to know her basis in making such a statement just as much as if a judge were to state in an opinion rejecting a defense motion that pretty much all suspects say the very same thing when confronted by the police with contraband found in their automobile trunk.

Yes, it's far worse when police officers (rather than civilians) provide identical accounts, given the inevitable conclusion that a pattern of identical police testimony suggests institutional gamesmanship on the part of the department in how it effectuates police training and policing.

Back to Justice Frankfurter: He was certainly right—we do want and expect judges to bring experience, real-world knowledge and common sense to the table when they decide cases. We also, though, need to have a reasonable idea of how they have reached their determinations.  Otherwise, we're potentially left with the unfair "appearance" that some judges, even sometimes for seemingly justifiable reasons, may simply be reaching much too far. Judge Newbauer may have been exactly right about an emerging problem regarding such testimony, but how did she come to her conclusion?

Joel Cohen practices white-collar criminal defense law at Stroock & Stroock & Lavan. He is an adjunct professor at Fordham Law School.