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ON THE DEFENSIVE: The perils of parallel construction

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

In criminal prosecutions, defendants often feel as if they are fighting an impossible battle.

The resources of the state are nearly endless, and, even in weak economic times, those resources are rarely withheld from prosecutorial and law enforcement agencies.

Every successful defense of a criminal case begins with a thorough investigation. Legislatures and courts have established discovery obligations governing the behavior of prosecutors and law enforcement officers.

Due process demands that defendants be permitted access to the state’s evidence. They are entitled to learn the nature of the case and the manner in which the charges have been constructed. By working backward, defendants might discover an alibi, find that a witness has lied or uncover unconstitutional police behavior.

If a witness has falsified evidence, the remedy is clear: The evidence is excluded or the testimony barred. But what is the remedy when the police falsify evidence?

This is more than a hypothetical question. In recent weeks, the Drug Enforcement Administration has had to acknowledge its deceptive acts in a practice known as “parallel construction.” Parallel construction is falsifying evidence about an investigation history to cover up the actual source of certain information.

This practice is most commonly used when law enforcement has discovered information through unconstitutional or questionable means such as warrantless monitoring of emails, text messages or phone records.

DEA agents then could instruct local officers to go to a particular location and find a reason to stop a particular vehicle. The police officer then conceals the true source of the information and the motive for the stop. For example, the officer might falsely claim to have been on routine patrol when a certain traffic infraction was observed.

Because the true source of the information is concealed from defendants, they have little ability to test the constitutionality of the police procedures used to obtain those leads.

Long ago, in Wong Sun vs. United States, the U.S. Supreme Court recognized that evidence derived from unconstitutional police behavior must be suppressed. Parallel construction is a modern day attempt to do an end-run around that doctrine and, as such, violate the due process rights of criminal defendants.

Courts should stand in the way of this practice or, at a minimum, compel prosecutors to uncover and reveal this information, should it exist.

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