How Not To Draft A Probable Cause Affidavit
Apr 13, 2012
By Ken.
Law
I'm in a rush, but I can't avoid commenting on the affidavit of probable cause submitted in the matter of George Zimmerman's shooting of Trayvon Martin.
It's a piece of crap.
Explaining why could be an epic post, but I don't have much time, so I will make it brief.
The affidavit is argumentative, it's conclusory, and it lacks attribution.
An affidavit shows proper attribution when it explains how the affiant knows each piece of information in the affidavit. That doesn't mean that a proper affidavit can't be based on second-hand or even third-hand or fourth-hand information — it can. But a proper affidavit must explain how each link in the chain gained the information — how everyone knew what they knew — so that the judge can make an intelligent assessment of the sufficiency of the evidence.
For example, a properly attributed affidavit might say "On April 13, 2012, I spoke with Officer Smith, one of the other officers on the case. Officer Smith told me the following: a few hours before he spoke with me, he interviewed witness Jane Doe. Ms. Doe told Officer Smith that she was walking down Main Street when she saw a man she recognized from the neighborhood as Dastardly Dan running out of the bank."
By contrast, a bad affidavit would say "Witnesses indicated that Dastardly Dan was seen running out of the bank." An even worse one says "Dastardly Dan ran out of the bank," and offers nothing to indicate the basis for knowledge.
Even though it was produced under the supervision of a special prosecutor, under circumstances that I'd assume would warrant extreme care, the Zimmerman affidavit falls into the "even worse" category."
The affidavit takes the lazy way out, starting with a paragraph that says, in effect, "we investigated a bunch of stuff, and here's what we learned," followed by a narrative of what the affiant believes happened. Almost nothing is specifically attributed — that is, for most facts asserted in the affidavit, it is impossible to determine whether a witness told the affiant the fact, how the witness knew, or whether it is just a conclusion drawn by the affiant.
This makes the argumentative and conclusory elements of the affivadit that much more problematical. For instance, the affidavit states that Zimmerman "profiled" Martin. But it's impossible to determine if (1) that's the affiant's characterization of the narrative that follows, or (2) that's intended as a separate factual assertion based on unspecified facts or evidence or witnesses. Similarly, the affidavit makes numerous statements about what Zimmerman thought or intended. It is impossible to determine whether these statements are (1) conclusions based on Zimmerman's actions and statements to the 911 dispatcher, (2) admissions Zimmerman made in some unspecified statement, or (3) mere argument.
The affiant occasionally gets it right — for instance, stating that Martin's mother identified his voice on the 911 tapes as the person calling for help. But for the most part, the affidavit offers a narrative of events, not a description of evidence supplying probable cause. Moreover, it is bizarrely vague at the most critical juncture — it blandly states "Zimmerman confronted Martin and a struggle ensued."
This is not the worst affidavit I've ever seen — but it's damn close, and the decision to proceed based on it in such a high-profile case is stunning. Cynics may say that I've been spoiled by federal practice, where affidavits are on average considerably more careful and well-drafted, particularly in some districts. But if it takes a high-profile case to highlight shoddy practices in everyday cases, so be it. An affidavit like this makes a mockery of the probable cause process. There's no way that a judge reading this affidavit can make an intelligent or informed decision about the sufficiency of the evidence — even for the low hurdle of probable cause.
Edited to add: it ought to be obvious, but in case it wasn't, this isn't a comment on whether or not Zimmerman committed a crime.
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