The Virginia Beach Police Department said in a statement that the technique, “though legal, was not in the spirit of what the community expects.” The department said it stopped employing the tactic before it learned of the attorney general’s investigation.
The issue came up before an April 2021 trial, Macie P. Allen, a spokeswoman for Virginia Beach Commonwealth’s Attorney Colin Stolle, said Thursday, although the document was never introduced in court. A prosecutor asked the Virginia Department of Forensic Science for a certified copy of a report that turned out not to exist. Police Chief Paul Neudigate, who was appointed in late 2020, was notified and immediately moved to prohibit the use of inauthentic documents. Reviewing thousands of cases, the department found five instances between March 2016 and February 2020 where fake DFS records were used in interrogations. The attorney general’s office opened its own investigation and this week confirmed those findings.
One of those forged documents was presented in a bail hearing as evidence, Herring’s office said.
Allen said the prosecutor who referenced the forged document at a 2020 bond hearing learned two months later that it was fake and immediately notified the court and defendant’s attorney. The spokeswoman said the defendant was given another hearing two days later and granted bond.
The police have entered into a two-year “conciliation agreement” with the attorney general’s office, committing to uphold the policy barring forged documents and report any violations.
Police are allowed to lie in interrogations as long as those falsehoods don’t render a confession involuntary by overbearing a suspect’s will. The Supreme Court has ruled that falsely telling a suspect that his fingerprints were found at the scene of a crime did not meet that standard. In 1997, an appeals court in Virginia upheld a murder conviction involving forged DNA and fingerprint reports.
“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,” defense attorney Chris Leibig said. “Such ploys are just a factor to be considered in whether a confession was voluntary. Reprehensible does not equal unconstitutional.”
Some state courts have explicitly barred the use of fabricated evidence in interrogations, in part for fear that the fake documents would end up being used in court or otherwise disseminated publicly.
It “brings to mind the horrors of less advanced centuries in our civilization when magistrates at times schemed with sovereigns to frame political rivals,” a New Jersey appeals court ruled in 2003. “We view the police conduct to be so inappropriate that it cannot be tolerated or withstand scrutiny under any constitutional or common-law principles.”
This is the second time Herring’s office has wielded his authority under a 2020 law prohibiting “a pattern or practice of conduct by law-enforcement officers” that violates civil rights. The first came in December, when the attorney general sued the town of Windsor for alleged racial discrimination in police stops and searches.
Jasmine Hilton contributed to this report.