Basic Warrant Affidavit Drafting Checklist

Style of Documents

Search warrants in several jurisdictions use a format for applications as follows:^[1]

Form 5 (search warrant)
Appendix A of the search warrant (listing the items to be seized and terms and conditions to seizure and examination, if applicable)
Form 1 (information to obtain)
Appendix A to ITO (listing the items to be seized and terms and conditions to seizure and examination, if applicable)
Appendix B to ITO (listing the offences)
Appendix C to ITO (setting out grounds of belief)

When an application is filed, normally the justice does not return Appendix C of the ITO.^[2]

Information to Obtain

look at whether the header lists what type or types of authorizations are being sought: e.g. warrant or telewarrant, sealing order, assistance order, etc.

Completeness of summary

Full, frank and fair disclosure of the history of the investigation (e.g. absence of material omissions or misrepresentations)

"Full"

in that everything that could be relevant to the justice is included.
1. identify past applications
2. identify limits of knowledge
identify evidence that is possessed but not yet analyzed/reviewed.
consider including photographs
avoid attaching source documents unless there is something about it that cannot be easily summarized or there is some critical reason for it.

"Frank"

avoid using euphemisms or other language that may introduce ambiguity;
when relying on utterances or communications, use exact wording when important;

"Fair"

include all exculpatory evidence and evidence inconsistent with preferred evidence.
identify weaknesses in statements that you are seeking to rely on
you can discuss deficits in affiant notes

Affiant notes

do not put new facts in affiant notes (e.g. comments in "[]"). They can be good for a roadmap for explanation.
do not explain everything you are thinking, just any non-intuitive inferences drawn from the evidence.
good for explaining things like whether there is concern for honesty of a particular witness.

Rule Against Narrative / Sourcing

Never cite a relevant fact without it being sourced;
avoid conclusory statements, instead state the evidence and state the inference to be drawn from it;
proper sourcing of documentary evidence can include stating when it was dated, how it was created, and when it was reviewed by the affiant.
Consider that the judge has to be able to weigh the strength of the evidence. Conclusory statements remove that abillity.
make the source of all information clear for each statement of fact. If learned from second-hand, identify name of person or document and date learned. These can often be footnoted.

Hearsay

anything that is hearsay is the source sufficiently identified (includes reviewing records)?
is the source reliability apparent or does it need explaining?

Materials Omissions or Misrepresentations

are statements of fact phrased in a precise and balanced manner?
have clear and articulable understanding on why omitting certain noted observations or events from narrative? Consider whether the omitted content could be construed as exculpatory in some way.

Inferences, Beliefs and Reasoning

Can articulate reasoning drawn from evidence, often it is added in brackets ("[]")

Confidential informers

(Note: any information that has the potential of identifying the informer or narrowing the pool of who the informer is must be either redacted in the public copy of the ITO or placed in a "tear-away" document attached to the ITO.)

duration that the source has made observations
criminal record of the source

Order

Make sure you understand the full scope of the order without reference to the ITO.
confirm the use of the basket clause is supported by the evidence;
Make sure basket clauses have limitations (times, dates, character, etc)
When the phrase "not limited to" exists, ensure it does not create an overbroad scope.

Tips

do not use templates mindlessly.
be able to cite your authority for the authorization.
be extra-cautious on rolled-up ITO (ie. approving several forms of warrants)
get a colleague to review your writing
avoid boilerplate phrases that may not mean anything to you.
if used, go through all boiler plate and ask yourself what it is there for
refresh your memory of the offence elements before starting on writing.
refresh your memory on the threshold you are required to meet.
don't review your background training that does not have anything to do with application;

Tracking Your Work

keep a running collection of all the documents that you relied upon. Be prepared to disclose all records that you reviewed.
you do not need to save all draft, but save your final draft.
if you have something that may be inadmissible evidence or otherwise problematic, you can note that it is "not relied upon".
if you have records in your possess that have not been reviewed or analyzed, note that in the affidavit.

Writing Style

use your own personal voice in drafting, not someone else's. this is important for testifying.
use plain English so you can explain things in your own style
when in doubt write in past tense.
do paragraph AND page numbering.

Writing Structure

consider including a "terms and conditions" section and explain why they are needed;

Format and Content of Writing

there is nothing wrong with doing advocacy in the section on your grounds, so long as you don't fail to be full, fair, and frank.
state what you want from the judge on the first page.
while not wrong, avoid using the formula: 1) what fact is known, 2) how the affiant knows, and 3) why it is important.
frame the writing about the crime, not the investigation.
Organize topics with subheaders concerning parts of the crime
do not start paragraphs citing the dates when you did something such as reading a report or interviewing a witness, etc..
use point-first writing. That will often mean you should put "why it is important" at the beginning of a paragraph, followed by what fact is known and how you know it.

Full, Frank and Fair

consider over-including information in first draft and then pair down as time goes on.
consider whether the reviewing justice might want to know about those facts? Could they make something out of that fact?

Wording to avoid