> But people opposed to parallel construction see this process as a bridge too far; one way to look at it would be that the whole process of discovering probable cause is something that a criminal defense can challenge, and so that whole process is potentially exculpatory.
The argument against parallel construction is simpler than that: The exclusionary rule exists not because guilty defendants have a right to go free, but rather to deprive law enforcement of the benefit of an unlawful search. Allowing parallel construction would impermissibly allow law enforcement to benefit from the unlawful search.
> It's also helpful to know that parallel construction isn't a new thing. It's similar to the process that works when the FBI/DEA has a highly-placed informant in a criminal organization. They want to make cases from that CI, but they don't want to expose the CI, not least because they'll have more cases to make down the road.
The distinction is that evidence from a CI would be admissible in its own right. Further evidence that it leads to wouldn't be the fruit of the poisonous tree.
The trouble seems to be that the exclusionary rule breaks in the absence of total transparency from law enforcement. The exclusionary rule exists to remove the incentive for law enforcement to conduct unconstitutional searches. If law enforcement doesn't have to disclose all their sources, even if parallel construction from poisonous evidence was nominally prohibited, defendants wouldn't be able to prove it when it happened. It would reintroduce the incentive for law enforcement to conduct unconstitutional searches and thereby make the exclusionary rule insufficient. This is a hard problem, although maybe requiring a high level of transparency and disclosure from law enforcement would be beneficial in general.
No, evidence from a CI is not admissible when the CI is not revealed to the court. I'm not saying parallel construction applies to every case involving a CI; I'm saying it applies to cases made from CIs who remain sources after the case is brought, and are thus concealed from the court and (more importantly) the defendant.
Again, the distinction is that the use of the CI is not a violation of the defendant's constitutional rights. Hiding the existence of the CI doesn't have the effect of hiding a constitutional violation by law enforcement.
The argument against parallel construction is simpler than that: The exclusionary rule exists not because guilty defendants have a right to go free, but rather to deprive law enforcement of the benefit of an unlawful search. Allowing parallel construction would impermissibly allow law enforcement to benefit from the unlawful search.
> It's also helpful to know that parallel construction isn't a new thing. It's similar to the process that works when the FBI/DEA has a highly-placed informant in a criminal organization. They want to make cases from that CI, but they don't want to expose the CI, not least because they'll have more cases to make down the road.
The distinction is that evidence from a CI would be admissible in its own right. Further evidence that it leads to wouldn't be the fruit of the poisonous tree.
The trouble seems to be that the exclusionary rule breaks in the absence of total transparency from law enforcement. The exclusionary rule exists to remove the incentive for law enforcement to conduct unconstitutional searches. If law enforcement doesn't have to disclose all their sources, even if parallel construction from poisonous evidence was nominally prohibited, defendants wouldn't be able to prove it when it happened. It would reintroduce the incentive for law enforcement to conduct unconstitutional searches and thereby make the exclusionary rule insufficient. This is a hard problem, although maybe requiring a high level of transparency and disclosure from law enforcement would be beneficial in general.