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Comment by btrask | Hacker News Reader

Suggestion: stop calling this "parallel construction" and start calling it evidence laundering.

"...FBI is mandating manufacture of a whole new chain of evidence to throw defense attorneys and judges off the scent."

Fraud works. Perjury even. This is lying to judges. Pure and simple. Every case should be thrown out or discredited and overturned. It's the only way to restore true balance to justice and let it be known that pure lying will not be tolerated, from anyone, ever.

Edit: it's the same as planting evidence. I've been trying to differentiate it in my head, and you can point to actual guilt, but procedurally (and in the name of justice) it's the same to me.

It's not the same as planting evidence. Planting evidence is fraud. It's exactly what it is. It's an illegal search and then lying about it.

Judges do throwout illegally obtained evidence, the problem with this is, that the judge can't tell if it was illegally gained or not.

Why not just "fabricating evidence"?

The whole point is that they are finding real evidence through illegitimate means. If you try to say they are fabricating evidence out of whole cloth, no one will believe you.

But they are. It might be OJ's glove, but "we found it in his glove compartment" is a fabrication. It has nothing to do with guilt.

In this case, it's like going from "the stingray told us you were in the house" to "we interviewed your neighbors and they say you were in the house". Interviewing neighbors is legitimate and can be used as evidence, but they wouldn't have interviewed them at all if they didn't use the stingray.

The lie would have to be comprehensive enough to justify conducting interviews in the neighborhood and everything that leads up to it, so even with the best of intentions (stop laughing) - it is very easy to unintentionally fabricate a lot of evidence. There isn't really any need to speculate though, the DEA proudly listed success stories for the "Hemisphere Project" - just look up the public information about those cases and see what lie they used for probable cause.

What's the difference between 'the stingray told us' and 'we got an anonymous tip-off that you were in the house' which is then verified by interviewing all the neighbors and only the interviews are presented to the court?

Receiving anonymous tip isn't a search. Wiretapping -- which is what Stingray does -- is.

In this case, "We got an anonymous tip" is a lie, and "we used Stingray" is not a lie.

Better example: it's going from "our illegally obtained telephone intercept told us that your red 2013 Kenworth T800 headed north on I95 from Atlanta to New York this morning, with 2MT of cocaine in the fuel tanks". To telling the driver that "it looks like one of your tires is low", and working up to a search.

It's called spoilation of evidence:

> The spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding.

https://en.wikipedia.org/wiki/Spoliation_of_evidence

And an illegitimate evidence chain is called "fruit of the poisonous tree."

https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

That said, the proof of a "poisonous tree" is itself difficult/impossible to obtain through legal means. Generally the message they send to anyone attempting to reveal the illicit nature of the evidence is told "even if you try, your proof will guaranteed to be inadmissible."

Why would a judge throw out evidence of illicitly gained information? Doesn't that lead to exactly where we land here with this article?

Edit: thanks for the definitions, nonetheless!

Well, that's the idea behind "parallel construction" -- a clean evidence chain is built up in parallel. That one isn't exactly inadmissible and there is no proof linking one chain to the other.

Furthermore, there are protective policies where public prosecutors are given the discretion to exclude evidence gained from "confidential" sources (eg: undercover cops) and that revealing such evidence to the public would negatively impact current/future investigations. Such evidence can be revealed privately to the necessary parties (eg: judges), but I'm not familiar with these procedures.

Why throw out illegally gained evidence? Because it's pretty much the only censure a judge can do, and it's a damn powerful one. Yes, evidence laundering is a problem when it come to warrantless surveillance, but simply throwing up your hands and saying "Well, I guess anything taken from any method and without court approval is okay. I guess judicial oversight is an antiquated 18th century idea," isn't the answer.

I think you misread me. Parent to my original post said information indicating evidence was ill-gotten would be thrown out, not the evidence itself. That makes it impossible to argue the evidence was obtained illegally. As far as I can figure it would lead to what you're talking about, which is madness, so I was asking why a judge would not allow proof evidence was obtained illegally. (Basically, I totally agree with you and am confused as to why a judge would not be.)

I think what he meant was that proof that a particular piece of evidence was illegally obtained is likely to necessarily be illegally obtained as well. Thus it will be thrown out itself before it can used to get the original evidence thrown out.

Or at least that's my interpretation of the comment in question. I have no idea how true it is.

Yeahs don't understand what that means. Part of the introducing evidence into court is to describe its provenance. If the chain of custody breaks, then the defense can easily attack it as being tampered with.

The only way evidence of a coverup could be illegally obtained would be if the defense somehow placed an illegal wiretap on the police department or prosecutor's office, which seems really implausible.

No. The evidence itself, and all evidence derived from that evidence is thrown out. You conduct an illegal search that finds the murder weapon at the suspects house, you don't get to enter the murder weapon into evidence. You don't get to introduce that the weapon had the victims blood on it, because the only way you know that is that you got the weapon illegally. You don't get to introduce that the weapon had the suspectms fingerprints on it for some the same reason.

They are not fabricating it. But it is like reading a crime novel knowing who the murderer is. When you already have the ending - you can find your own path with the clues left inside the book.

It's because the evidence turns out to be real (ostensibly), they just fabricate how they obtained it.

They get information which leads to an arrest. Once they get the arrest they construct an alternative explanation for how they got the original information in order to avoid scrutiny about how they originally got the information (such as the Sting Ray).

The information they got from the Sting Ray is, ostensibly, true/actionable but the Sting Ray itself is questionably un-constitutional. So instead they create a fake evidence trail leading to the information they got from the Sting Ray in order to explain any and all information actually obtained from a Sting Ray.

Like someone else said, it's kind of like evidence laundering. "How we got this is bad, so instead let's create a fictitious string of events to add legitimacy to it."

I like this term. Let's start using it everywhere.

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