The Sixth Amendment to the U.S. Constitution guarantees every criminal defendant the right to confront the witnesses and evidence against them. Other amendments require that any evidence be collected lawfully and that no defendant be convicted without due process of law.
Yet a new report from Human Rights Watch makes the case that state and local law enforcement across the nation have been receiving secret tips from federal agents but concealing the source of the information from the courts and the defense.
Law enforcement assures us that these tips are legal, but the information may come from constitutionally dubious mass surveillance. And, many outside law enforcement believe the practice is not legal in any case.
State and local police and prosecutors hide the original source of their information by creating a false, parallel story of how the evidence was discovered, the report says. This is referred to as "parallel construction."
For example, suppose the feds discovered, through an illegal wiretap, that Citizen A might be dealing drugs. They send the tip to the local police on the condition that this won't be mentioned in court. The police then watch Citizen A until she commits a traffic violation, then pull her over. They insist on a search and, if they find drugs, they claim the findings were the result of the traffic stop. If they don't find drugs, they may initiate surveillance on Citizen A as she goes about her day -- watching for evidence of drug dealing. In both cases, police are only pretending to collect evidence fairly.
When the defense tries to challenge the evidence, they don't get the opportunity to challenge whether the information in the tip was collected lawfully because they are never told about the tip. That deprives Citizen A of her constitutional right to fully challenge the evidence.
Even if courts were to find this legal, hiding the real trail of evidence opens our justice system up to abuse, prejudice and misconduct among law enforcement officials.
"Taken to its worst logical conclusion," reads the report, "parallel construction risks creating a country in which people and communities are perpetually vulnerable to investigations based on prejudice, vast illegal operations or official misconduct, but have no means of learning about these problems and holding agents to account."
We recommend reading this NPR story or the full report in order to get a more detailed understanding of this practice.
We have to ask: If all this is legal, why is it being done secretly?
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