Parallel construction is a legal strategy often used in federal criminal investigations. It's a complex and somewhat controversial practice that can significantly impact the outcomes of cases, often not in favor of the defendant.
Parallel construction occurs when the federal government learns of criminal activity through one source but then gives the information to federal law enforcement agencies to “reconstruct” the criminal investigation so that the source of that second investigation differs from the original source.
The information on parallel construction is possibly exculpatory as it presents a suppression issue if the source of the investigation stems from questionable and unreliable intelligence-gathering procedures.
Sometimes, the government will assert that their IP addresses or anonymous tips identified defendants, but even federal prosecutors may not know the origin of the initial investigation on these individuals.
There have been reports that the federal government has begun using secret evidence to build criminal cases. This evidence technique is called “parallel construction.” Simply put, it involves federal law enforcement agencies hiding classified or sensitive methods from a court due to the construction of parallel construction chains.
There are numerous concerns about this type of investigation method, including that criminal defendants are left unable to challenge evidence collection that could violate the Fourth Amendment as law enforcement acts in a discriminatory manner.
In response, the federal government has argued why parallel construction should be viewed as an acceptable and valid investigation method, such as claiming that the Fourth Amendment to the United States Constitution already protects people against unreasonable searches and seizures by law enforcement.
At its worst, parallel construction can violate your rights as a defendant. Let's discuss in more detail what parallel construction is, why it's potentially harmful to a defendant, especially in federal criminal cases, and what recourse you may have if you suspect investigators have used this controversial technique in building their case against you.
Understanding Parallel Construction
A parallel construction investigation is a method law enforcement agencies use where evidence obtained through sensitive or classified information sources is reacquired through traditional law enforcement techniques.
This process allows the original source of information to be kept hidden from defense attorneys and even the court itself.
For example, suppose an agency uses a secret surveillance technique to obtain evidence against a suspect. In that case, they might use a traffic stop or a search warrant to "rediscover" the same evidence.
This latter, more conventional method of obtaining evidence is what would be presented in court, thus concealing the initial, potentially controversial source of information.
What are the Issues of Parallel Construction?
While law enforcement and other government agencies may justify parallel construction investigations on the grounds of protecting classified information, at-risk witnesses, etc., the clandestine approach to this technique also leaves the door open for law enforcement to conceal less noble investigative actions such as the following:
- Illegal searches and seizures,
- Non-warranted surveillance, and
- Other nefarious activities.
Then, they will introduce them in court under the guise of information obtained legally. What is particularly troublesome about this investigative approach is that defendants and their attorneys often have no idea that the evidence presented against them was gathered through parallel construction—and many have unfairly been imprisoned as a result.
What Are the Ethical and Constitutional Implications?
The practice of parallel construction has drawn criticism and raised significant ethical and constitutional questions. The main concern is its potential infringement on the Fourth Amendment rights, which protect citizens from unreasonable searches and seizures.
If evidence was initially obtained through methods considered unreasonable or intrusive, then reobtained through more conventional means, it could be argued that the individual's Fourth Amendment rights have been violated.
Moreover, parallel construction investigations can potentially undermine the Sixth Amendment, guaranteeing defendants the right to confront their accusers and scrutinize the evidence against them. When the true origins of the evidence are concealed, it becomes challenging for defense teams to exercise this right.
From an ethical standpoint, critics argue that parallel construction is fundamentally dishonest. It involves presenting a version of events in court that doesn't accurately reflect how evidence was initially discovered, which could be seen as deceiving the court and undermining the integrity of the criminal justice system.
Parallel Construction and Federal Criminal Charges
If you're facing a federal criminal charge, it's crucial to understand how the evidence against you was gathered. If federal agents or investigators conducted a parallel construction investigation, it might mean some evidence against you was unlawfully collected and should be inadmissible.
Defense attorneys often challenge the legality of searches and other evidence-gathering methods in court. If they can demonstrate that evidence was obtained unlawfully, they may be able to have it suppressed or excluded from the trial.
However, if parallel construction is used and the original source of evidence is concealed, this defense strategy becomes much more difficult.
Furthermore, if the evidence against you was gathered initially through classified or sensitive sources, there could be significant implications for your privacy rights. Even if the evidence was later reobtained through conventional means, the initial surveillance or investigation that led to its discovery might still raise serious privacy concerns.
What Are the Possible Steps to Counter a Parallel Construction Investigation?
Suppose you have reason to suspect the evidence gathered against you in your federal case was obtained through a parallel construction investigation. In that case, your first step is to hire an experienced federal criminal defense attorney as soon as possible. A skilled attorney can:
- Conduct a thorough investigation: A comprehensive investigation by the defense counsel using their investigative resources can potentially disclose instances of parallel construction.
- Question the origins of evidence: If there are discrepancies or suspicious circumstances surrounding how evidence was found, a good attorney will request disclosure of all evidence and the sources by which it was obtained.
- File a motion to suppress evidence: If there is reason to believe that the evidence was obtained through illegal surveillance or other unconstitutional means, the defense can file a motion to suppress that evidence.
At the very least, defense strategies such as the above can uncover evidence that should not be included in your trial, giving you a better chance at a solid defense. In cases where most of the evidence was illegally obtained and concealed through parallel construction, a skilled attorney may be able to get the charges dismissed.
Federal judges in United States District Courts often prohibit prosecutors from introducing evidence obtained due to illegal activities. This law is known as the “fruits of the poisonous tree” or the “exclusionary rule.”
However, an exception is that evidence independent of an earlier tainted source can still be used as evidence. Parallel construction is disguised as an independent source, but many argue that it is not genuinely independent. Contact our federal criminal defense lawyers for a case review. Eisner Gorin LLP is located in Los Angeles, California.
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