Friday, October 2, 2015
Five Tips for Effective Technical Warrant-Writing
October 2, 2015
Five Tips for Effective Technical Warrant-Writing
Having worked in law enforcement at the level of investigator and forensic examiner and subsequently transitioning to a trainer/private practitioner role, I’m starting to gather the benefit of something many law enforcement (LE) agents may well overlook – diversity of experience. While many of my friends in LE may scoff at some of my professional choices, I have actually grown to appreciate both sides of the issue with regard to investigation and digital forensics. After all, what we’re really after is the truth!
Along with the diversity of experience comes the opportunity to review and scrutinize various legal documents submitted on behalf of the government (or other parties) to obtain information and other suspected relevant materials from businesses, individuals and other involved parties in both criminal and civil litigation. Unfortunately, I’m not always “impressed” with what I read. I attribute this to many factors including the lack of adequate training, lack of updated training, lack of writing ability, lack of experience and the simple fact that the law is always several steps behind technology. In order to help out burgeoning investigators of electronically-facilitated crime and increase the effectiveness of search warrants, court orders and other legal filings that may become necessary in these types of investigations, here are five tips to keep in mind when constructing your affidavits:
1) More is More
Yes, I know in the police academy you are taught that less is more. Just the facts. Don’t elaborate. Don’t get too detailed. Write like a cave man. The problem is, the more ambiguous you are in your affidavit, the more holes the defense can drive through your facts. Be specific, deliberate and write as if someone is actually going to read the darn thing! In other words, make it flow well, like a story. If it helps, think about the fact that the outcome may very well be to potentially punish someone for a good portion of their life rests in your hands as the architect of that document. If that authority and responsibility is something that you appreciate, then you should be as verbose as you need to be in order to establish the facts surrounding your probable cause. You owe it to your case, your reputation and, believe it or not, you owe it to the suspect.
2) Don’t Assume Your Audience Knows Anything
When composing warrant affidavits for legal tech items or information, you have to develop the ability to explain very technical items to very non-technical people. This may be your supervisor, magistrate, prosecutor, defense attorney, judge, or the jury. Don’t assume that everyone knows what a smart phone is or what you can do with it or that apps can be used for a myriad of purposes. Don’t assume that people know what Craigs List is or the multitude of items or services you can get from it. The first Magistrate I went before with my first electronic search warrant affidavit was a dinosaur. He literally pecked one letter at a time on the keyboard and when he saw how lengthy my PC was, he literally cursed me. But he also appreciated the authority and comes with the ability to invade someone’s home or business and what an awesome responsibility it is to make sure we get it right.
3) Get With Someone Who Knows More
The value of mentorship cannot be understated when investigating crimes that are complex in nature. No man (or woman) is an island, so don’t think you know everything and try to go it alone. Drop your ego, realize what you don’t know and ask for help. I had several mentors starting out and still look upon them as far more knowledgeable than I. They just can’t get online and publish a blog because their command staff would have a [proverbial] cow.
Use every resource at your disposal – colleagues, list serves, online articles… You’ll learn more and grow infinitely more than you’ll ever realize.
4) Know What You’re Talking About & Don’t Fudge
The term “fake it till you make it” is a fairly tried and true business practice, but it has no place in law enforcement or investigations. “Faking it” might as well be lying on an affidavit. I once knew an investigator who fudged data from an electric company to beef-up his PC for a search warrant in a drug case. When it was discovered during his testimony at a pre-trial hearing, the judge understandably didn’t care for it too much. Even worse, his credibility was shot… and it’s all on the record.
The stats aren’t worth it. If you don’t know, say you don’t know. Don’t make it up and don’t embellish.
5) Proofread, Review, Repeat
Many investigators are over-worked, there’s no doubt about that. In order to save time and effort, “boiler-plate” affidavits are often used to streamline the process. There’s nothing wrong with this, but you must review the items every single time you construct your document. It only takes one word to completely screw up the efficacy of your warrant in a suppression hearing, so do yourself a favor and take the time to really review, scrutinize and revise your documentation, facts and application for warrant. When you’ve done it, do it (at least) one more time just to be sure. When that’s done, ask yourself if it passes the “mirror test” – if you can look yourself in the mirror and know that everything is the way it should be, you’re in a good place.
Writing decent affidavits and other legal paperwork is part of your legacy as an investigator and/or examiner. Whatever other mistakes you may make along the way, you will ultimately be assessed by others on your professional reputation by judges, juries, defense attorneys, prosecutors and other investigators. That reputation is something that needs to be nurtured, honed and never taken for granted. Step one is to know how to articulate yourself in such a manner to shore up that reputation as time goes on.
I recently spoke with the prosecutor with whom I used to work many, many cases. He said he’s received several inquiries about me from other attorneys since I transitioned to the private sector and has told them “He’s thorough, he knows his stuff and he doesn’t lie.” I appreciate those words more than almost any award or certification. Hopefully, you’re well on your way to having the same said about you!
Patrick J. Siewert, SCERS, BCERT, LCE
Professional Digital Forensic Consulting, LLC
Based in Richmond, Virginia