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Article questions investigative techniques of federal officials

Procedural due process is a cornerstone of the American criminal justice system. Yet a recent article questions whether federal drug enforcement authorities are observing those rights -- especially the Fourth Amendment’s protection against unreasonable searches and seizures.

Specifically, the article questions whether a unit of the U.S. Drug Enforcement Administration may be recreating investigative documentation, particularly how investigative searches began. For example, if a DEA agent received a tip from a confidential source about a deal going down, a recreated approach might document another reason for the initial surveillance, such as a traffic offense or other similarly mundane violation. According to two anonymous DEA officials, that process is called parallel construction.

A lawyer might question whether a criminal defendant can receive a fair trial when the arrest record, and potentially other documents, have been manipulated. There may be safety reasons why the identity of a confidential informant needs to be guarded. However, a procedure already exists under federal evidentiary rules to allow a judge to review evidence privately, or in camera, before deciding whether it must be offered to the accused’s lawyer.

In the case of Wilmington individuals facing drug crime charges, chances are that local, rather than DEA officials were involved. Such individuals may likely be prosecuted under state, rather than federal drug laws. Yet the integrity of the criminal justice system benefits when all criminal defendants receive a fair day in court. Whether DEA investigative techniques should also fall within that procedural umbrella may be an issue that lawmakers will have to decide in the near future.

Source: reuters.com, “Exclusive: U.S. directs agents to cover up program used to investigate Americans,” John Shiffman and Kristina Cooke, Aug. 5, 2013