Today I attended an excellent (and free!) webinar sponsored by NACDL on parallel construction. I have to admit that until today I had no clue what that was. But as a criminal defense attorney, I should know. Parallel construction is when the State obtains information/evidence illegally through the use of Tactic A, and then covers up its illegal use of Tactic A by “rediscovering” the evidence through the use of a legal Tactic B.
What does this look like in practice? The FBI illegally slaps a GPS tracking device on your client’s car to obtain information, and then calls local police and asks them to make a pretextual stop and obtain consent to search the car. The information was obtained illegally. But a superficial reading of the probable cause affidavit reveals a “lucky” cop using his “training and experience” to observe “furtive gestures” from a “nervous” driver.
Just today Above the Law posted this interesting article on another illegal tactic that the State could use to obtain evidence and cover up its discovery through parallel construction. In New Orleans, prosecutors have the ability to listen in on privileged conversations between attorneys and their clients in jail awaiting trial. It is not too hard to imagine a situation where the State learns of the existence of incriminating evidence through one of these conversations, and then hides its illegal eavesdropping by pretending to discover the evidence through legal means.
As criminal defense lawyers, it is imperative that we learn as much as we can about these “secret tactics.” Here is one article that will get you started.