Drafting instructions to jury—key terms

Drafting instructions to jury—key terms

Not all states have established standard jury instructions concerning computer crime.

Minnesota is one state that has established such instructions.FN62 Though phrased in the language of the Minnesota computer crime law,FN63 the instructions provide examples that can be used in drafting instructions applicable to the computer crime law under which defense counsel's client is standing trial.

One Minnesota instruction defines key terms in the computer crime law as follows:FN64

• ACCESS. "Access" means to instruct, communicate with, store data in, or retrieve data from a computer, computer system, or computer network.
• COMPUTER. "Computer" means an electronic device, which performs logical, arithmetical, and memory functions by the manipulations of signals, including but not limited to electronic or magnetic impulses.
• COMPUTER SYSTEM. "Computer system" means related, connected or unconnected, computers and peripheral equipment.
• COMPUTER NETWORK. "Computer network" means the interconnection of a communication system with a computer through a remote terminal, or with two or more interconnected computers or computer systems.
• PROPERTY. "Property" includes, but is not limited to, electronically processed or produced data and information contained in a computer or computer software in either machine or human readable form.
• SERVICES. "Services" includes but is not limited to, computer time, data processing, and storage functions.
• COMPUTER PROGRAM. "Computer program" means an instruction or statement or a series of instructions or statements, in a form acceptable to a computer, which directs the functioning of a computer system in a manner designed to provide appropriate products from the computer.
• COMPUTER SOFTWARE. "Computer software" means a computer program or procedures, or associated documentation concerned with the operation of a computer.
• LOSS. "Loss" means the greatest of the following:

The retail market value of the property or services involved; the reasonable repair or replacement cost, whichever is less; or the reasonable value of the damage created by the unavailability or lack of utility of the property or services involved until repair or replacement can be effected.

The Minnesota instructions also define two computer crimes, computer damageFN65 and computer theft.FN66 For each crime, an instruction lists the elements of two types of that crime.

A defendant is not necessarily deprived of a fair trial by a jury charge on circumstantial evidence that does not use the words "moral certainty."FN67 However, a court's jury instructions that reasonable doubt must be "based upon some good sound substantial reason" may constitute reversible error where the charge unfairly dilutes the People's burden of proof by emphasizing the difficulties in the prosecutions of crimes, especially where the time of the alleged incident is remote and the witnesses are children.FN68