Concealing Evidence: 'Parallel Construction,' Federal Investigations, and the Constitution
60 Pages Posted: 3 Feb 2019 Last revised: 23 Feb 2019
Date Written: Fall 2018
Federal law enforcement agencies are increasingly relying on "parallel construction" to pursue criminal cases against U.S. persons. Parallel construction is the process of building a separate -- and parallel -- evidentiary basis for a criminal investigation. The process is undertaken to conceal the original source of evidence, which may have been obtained unlawfully. Clandestinely used for decades, this process raises serious constitutional questions.
Parallel construction allows law enforcement agencies to capitalize on sensitive or secret national security techniques in the domestic criminal context, without any form of oversight or accountability. The result: parallel construction insulates surveillance techniques from judicial review, undermines checks and balances, and deprives individuals of the privacy benefits that court review would require. It also undermines fundamental principles of due process. Parallel construction enables law enforcement agencies to engage in questionable investigative practices, the concealment of which deprives criminal defendants of any challenges they might raise and prevents courts from reviewing the constitutionality of the practice in the first place.
Addressing parallel construction is a pressing issue, especially in light of the current events surrounding the 2013 global surveillance disclosures by Edward Snowden, the ongoing War on Drugs and War on Terror, and the efforts to reform the criminal justice system. As this Article explains, using this process is a deliberate attempt to bypass constitutional guarantees in ways that will unduly prejudice criminal proceedings. There is much to be gained by ensuring that law enforcement refrains from practicing parallel construction in the future.
Keywords: Parallel Construction, Federal Investigations, Constitution, Constitutional Law, Criminal Procedure, Information Sharing, Evidence, Fourth Amendment, Fifth Amendment, Due Process, Surveillance, NSA, Separation of Powers, National Security, Stingrays, Law Enforcement, Privacy, Judicial Oversight
JEL Classification: K1, K4
Suggested Citation: Suggested Citation