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Extrinsic Fraud: Can It Be Used to Overturn a Criminal Conviction?

Nov. 24, 2021

Although not apparent in the body of published caselaw, a legal doctrine that prisoners have clung to over the years to challenge criminal convictions is that of extrinsic fraud. The reason why it is so appealing as a legal basis is that a judgment obtained by extrinsic fraud is void and can be challenged at any time (i.e., beyond the statute of limitations that restrict challenges to criminal convictions). Intrinsic fraud is another type of fraud, considered less severe.


The Supreme Court of Virginia has defined extrinsic fraud as “conduct which prevents a fair submission of the controversy to the court.” Jones v. Willard, 224 Va. 602, 607 (1983). It is a type of fraud that deprives a party of the opportunity to be heard, such as when the judges or jurors are subjected to bribery or where a party fabricates evidence. Extrinsic fraud is fraud that occurs or originates outside the judicial process without a party’s knowledge. Significantly, a judgment procured by extrinsic fraud “is void and subject to attack, direct or collateral, at any time." Jones, at 607.

Intrinsic Fraud

Intrinsic fraud, on the other hand, includes “perjury, forged documents, [and] other incidents of trial related to issues material to the judgment.” Jones, at 607. When a party obscures material facts, it is considered intrinsic fraud. This type of fraud cannot be attacked at any time because each party to the proceeding has the opportunity at trial through cross-examination and impeachment to ferret out and expose false information.

Can Fraud Be Used to Challenge a Criminal Conviction?

The simple answer is no. The legal doctrine governing extrinsic/intrinsic fraud applies to civil lawsuits brought by private citizens in which the government is not a party as in criminal cases. In fact, the body of caselaw analyzing claims of extrinsic/intrinsic fraud does not involve criminal defendants challenging their convictions.

In a criminal case, the parties are made up of the government versus the accused. When the government commits an act in the course of the prosecution that breaks the law or an ethics rule, that more appropriately falls under the category of prosecutorial misconduct. Examples include making improper remarks and misrepresenting evidence to the jury, failing to disclose exculpatory or impeachment evidence to the accused, and witness tampering. Similarly, when an accused’s trial attorney commits an act that would be described as a type of fraud, it falls under the category of Ineffective Assistance of Counsel. Claims of prosecutorial misconduct and ineffective assistance must be raised in a timely and appropriate manner, and the prisoner must prove that they were prejudiced by the prosecution’s and the attorney’s acts.

Virginia Postconviction Lawyer

If you’re seeking to challenge your criminal convictions, you need a postconviction attorney who has experience with handling these types of cases. Such an attorney can make sure you get the best outcome in your case. Bryan J. Jones is committed to his clients and will develop a defense strategy tailored just for you. Contact Bryan J. Jones, LLC today.