Okay. I am willing to potentially make an ass out of myself this morning. I noticed during my morning reading that Prof. Alan Dershowitz said that the affidavit filed against George Zimmerman was “irresponsible and unethical” because it was so thin on details and because it was consistent with a self-defense argument. To be honest, i was disappointed that the affidavit didn’t provide any new information, but I am also confused by Dershowitz’s response.

The first thing I did was just google up something to explain basic pre-trial procedure. This case is unusual because there was no grand jury, but everything else should remain the same. Yesterday, Zimmerman had a hearing which set his arraignment for May 29th. He was not presented with an indictment. Or, if he was, it was sealed at the request of his defense attorney. This hearing seems to be something called for under Florida law, because much of what they discussed normally happens at the arraignment, such as hearing the charges, being informed of your rights, and discussing terms of bail. One reason we didn’t learn more about the charges is because Zimmerman’s lawyer deferred the bail question in order to avoid a public hearing of any evidence. Had he requested bail, the prosecutor could have presented evidence arguing against bail, and we would have learned new information.

In any case, it is normal to receive a complaint (affidavit) at an arraignment. An affidavit is not based on sworn testimony from a grand jury or other process. It’s basically the sworn word of the prosecutor that they have a case against you. If they lie, you can sue them later.

The difference between an indictment and a complaint is that an indictment is based on sworn testimony and a “complaint” is an “affidavit” signed against you by your accuser. If vindicated, you cannot “sue” the Grand Jury because they indicted, however, you could file a malicious prosecution action against someone who did sign an affidavit against you.

I assume Dershowitz knows that an affidavit is not supposed to be the same thing as an indictment.

An indictment, in this case, will be issued on the prosecutor’s authority. As far as I understand it, the place to hear the indictment is the preliminary hearing, which comes after the arraignment.

The state puts on evidence to show the court why the matter should be set for trial and the defense attorney has the ability to cross-examine witnesses. Some prosecutors would rather avoid a preliminary hearing because they do not want to expose their witnesses at that early stage and elect to go to the Grand Jury instead. Grand Jury proceedings are secret and defense lawyers can only be present if and when their own client testifies.

Yesterday, the judge ruled that based on the affidavit, Zimmerman can be held over for trial. But the evidence was based on the prosecutor’s word and the defense was not allowed to challenge the evidence.

It seems to me that the reason we didn’t learn anything new is because both the prosecutor and the defense had an interest in keeping new information from coming out. Perhaps both of them shared a desire to keep emotions calm. Beyond that, the prosecutor didn’t want to telegraph her case and the defense didn’t want to prejudice any potential jurors or have damaging information released.

Is Dershowitz an idiot, or am I?