Our law firm recently tried a civil rights case where the prosecutor violated court orders and permitted false witness testimony
Yet the jury found that those acts were not a knowing unconstitutional practice of the district attorney. Constitutional trickery may not result in justice.
Police in Virginia Beach, Virginia, used fake DNA reports in an effort to get confessions, cooperation or convictions, according to outgoing Virginia Attorney General Mark Herring.
The police department used the fake reports in at least five instances between March 2016 and February 2020, according to a press release by Herring.
The Associated Press, NPR, the Virginian-Pilot and the Washington Post have coverage.
Herring’s Office of Civil Rights had investigated after an assistant commonwealth’s attorney sought a certified copy of what turned out to be a fake report from the state’s forensic science agency in April 2021.
The forged documents generally claimed that a suspect’s DNA was found in connection with a crime. The fake reports purported to come from the Virginia Department of Forensic Science.
“This was an extremely troubling and potentially unconstitutional tactic,” Herring said in the press release.
In one instance, a forged document was presented to a court as evidence in a bail hearing, Herring’s office told the Washington Post. The prosecutor notified the court and the defense attorney after she learned that a fake document had been used. The defendant was given a new hearing.
On Jan. 11, the Virginia Beach City Council agreed to a conciliation agreement with the attorney general’s office that requires an end to the practice and police training against the use of forged documents.
The police department had cooperated in the state investigation and had banned use of the fake documents in May. People who were interrogated using the fake documents will be notified.
In a statement, the Virginia Beach Police Department said the practice, “though legal, was not in the spirit of what the community expects.”
The Washington Post points to a 1997 Virginia appeals court decision supporting the police department’s view of legality. The decision affirmed a murder conviction in which the suspect confessed after police showed him fake fingerprint and DNA reports implicating him in the crime.
Defense lawyer Chris Leibig told the Washington Post that other courts have also upheld the use of falsehoods.
“Unfortunately, courts, including in Virginia, have held that falsehoods by police in obtaining an alleged confession, even the use of forged documents, does not necessarily invalidate a confession,” Leibig said. “Such ploys are just a factor to be considered in whether a confession was voluntary. Reprehensible does not equal unconstitutional.”