Did VA Cops’ Use of Fake DNA Documents to Elicit Confessions Violate Suspects’ Constitutional Rights?

If you didn’t know this, you should: Police are allowed to lie during interrogations to elicit confessions from suspects. The Supreme Court has ruled that deception does not violate a suspect’s constitutional rights. How can that be, you ask, when the Fifth Amendment protects citizens from being compelled to give testimony against themselves? That’s a good question, and one which authorities in Virginia are asking after discovering that police officers were using fake DNA analysis documents to convince suspects they needed to confess to a variety of crimes.

According to a story in VICE, Virginia Attorney General Mark R. Herring’s Office of Civil Rights disclosed to the public that “on at least five occasions” Virginia Beach police had used “’fake certificates of analysis’ purporting to be from a state forensic agency” during interrogations of suspects. The bogus certificates were reportedly “emblazoned with a seal, letterhead, or contact information, and two included the signature of a fake Virginia Department of Forensic Science employee.”

The U.S. Supreme Court has ruled in numerous cases that police can use deception to elicit confessions. In Frazier v. Cupp, (1969), the Court found it permissible for police to falsely claim a suspect's companion had confessed when he had not. In Oregon v. Mathiason (1977), the Court okayed cops claiming to have found a suspect's fingerprints at a crime scene when they hadn’t. The Court would not rule that such deceptions rose to the level of coercion sufficient to override the suspect’s free will and compel him to confess.

To find coercion, or compulsion, in an interrogation, the Court looks at the totality of the circumstances to decide whether conditions were so overwhelming the suspect had no choice but to confess.

The Court also looks for coercive practices that are impermissible, such as:

  • Depriving a suspect of food, water, or use of a bathroom
  • Threats, other than threats to enforce the law fully
  • False promises of leniency
  • Physical battery
  • Questioning at gunpoint

The practices uncovered in Virginia may not have been textbook coercion, but neither were they simple deceptions. The Virginia Beach Police Department perpetrated an elaborate hoax, which Attorney General Mark R. Herring called “potentially unconstitutional.” Herring further stated that the deception had “abused the good name and reputation of the Commonwealth’s hard-working forensic scientists and professionals who work hard to provide accurate, solid evidence in support of our law enforcement agencies.”

The Department, in a statement to The Washington Post, stressed that the technique was legal, but has agreed to stop using the practice. The Department “acknowledged to The Post that such practice “was not in the spirit of what the community expects.”

Communities across the country, and indeed the world, are demanding greater integrity from police forces. Some have gone so far as to outlaw deception in police interrogations. Whether Virginia will take that bold of a step is yet to be seen. But with enough public pressure, deceptive interrogation practices can and should join the legendary “third degree” as a discarded relic of the past.