View source for The Defense of a Computer Crime Case

==Introduction==
===Scope, Purpose, Procedure===
* [[In general]]
* [[Purpose of computer crime laws]]
* [[Applicability of common-law sanctions]]
* [[Procedure; generally]]
* [[Venue]]
* [[Jurisdiction]]
===Definitions and Elements===
* [[In general; intangible nature of assets]]
* [[Alteration]]
* [[Computer]]
* [[Computer network]]
* [[Computer hardware]]
* [[Computer software]]
* [[Computer program]]
* [[Computer services]]
* [[Data; intellectual property]]
* [[Financial instrument]]
* [[Intent—knowledge]]
* [[Intent—Purpose]]
* [[Intent—Malice]]
* [[Intent—Authorization]]
* [[Recklessness]]
===Federal Laws===
* [[Federal Laws in general]]
* [[Activities involving access devices and equipment]]
* [[Communications Decency Act]]
* [[Child pornography legislation]]
* [[The Copyright Act]]
* [[National Stolen Property Act]]
* [[Electronic Communications Privacy Act]]
* [[Economic Espionage Act of 1996]]
* [[Computer Fraud and Abuse Act]]
* [[Miscellaneous federal laws]]

===State Laws===
* [[State Laws in general]]
* [[Illegal gains]]
* [[Physical taking offenses]]
* [[Identity theft]]
* [[Use of computer services; larceny]]
* [[Taking of information]]
* [[State consumer protection laws]]
* [[Possession of hardware designed for illegal purpose]]
* [[Damage to computer or component]]
* [[Personal harm]]
* [[Violation of privacy]]
* [[Trespass]]
* [[Facilitating crime]]
* [[Computer pornography]]
* [[Child pornography legislation]]
* [[Child protection legislation; solicitation and importuning]]
* [[Trade secret statutes]]
* [[Spam]]
* [[Miscellaneous laws]]

===Punishments and Penalties===
* [[In general]]
* [[Determining factors]]
* [[Civil remedies]]
===Auxiliary Provisions===
* [[Admission of evidence]]
* [[Loss valuation]]
==Preliminary Considerations and Procedures==
* [[Meeting and gaining rapport with the defendant]]
* [[Restricting interrogation of defendant]]
* [[Dealing with pretrial publicity]]
* [[Initial pre-arrest client interview]]
* [[Conferring with arrested client]]
* [[Initial conference with defendant; information checklist]]
* [[Considerations as to arranging for surrender of defendant]]
* [[Obtaining defendant's release on bail]]
* [[Illustrative form; order fixing bail]]
* [[Release on own recognizance]]
* [[Release on own recognizance—Questions checklist]]
* [[Illustrative form—defendant's agreement to appear]]
* [[Illustrative form—Order for release on own recognizance]]
==Client Interview and Planning; Evaluating the Case==
* [[Client Interview and Planning; Evaluating the Case in general]]
* [[Dealing with difficult technical information]]
* [[Tape recording initial client interview]]
* [[Advising client of attorney-client privilege]]
* [[Putting client at ease]]
* [[Evaluating defendant's version of facts]]
* [[Evaluating defendant's attitude toward computer victim]]
* [[Evaluating defendant as a witness]]
* [[Client interview checklist]]
* [[Obtaining information about alleged codefendants; checklist]]

==Fees and Costs==
* [[Fees and Costs in general]]
* [[Determining client's ability to pay fee]]
* [[Factors affecting amount of fee]]
* [[Informing client of special costs]]
* [[Collecting or securing payment of fee]]

==The Accusatory Proceeding==
===Proceedings Before Grand Jury===
* [[Proceedings Before Grand Jury in general]]
* [[Appearance of defendant before the grand jury]]
* [[Evidence presented to the grand jury]]
* [[Separate trial]]

===Proceedings by Way of Preliminary Hearing===
* [[Proceedings by Way of Preliminary Hearing in general]]
* [[Exclusion of witnesses and the press during testimony]]
* [[Prosecution's need to prove elements of crime]]
* [[Cross-examination of prosecution witnesses]]
* [[Factors determining extent of cross-examination]]
* [[Objecting to computer-generated evidence]]
* [[Presentation of the defense case]]
* [[Defense motion to dismiss charges]]
* [[Motion to reduce charge]]

===Arraignment; Pleas; Continuance of Case===
* [[Arraignment; Pleas; Continuance of Case in general]]
* [[Demurrer to complaint; pleas]]
* [[Waiver or assertion of right to speedy trial]]

==Investigating the Case==
===Preliminary Matters===
* [[Preliminary Matters in general]]
* [[Use of discovery]]
* [[Use of private investigators]]
* [[Use of computer security consultants, EDP auditors, and computer professionals]]
* [[Use of independent laboratory tests]]
* [[Application of forensics to computers]]

===Locating and Interviewing Witnesses===
* [[In general; locating witnesses]]
* [[Interviewing witnesses]]
* [[Dealing with reluctant witnesses]]
* [[Law enforcement witnesses]]
===Examining Police Reports, Records, and Photographs===
* [[Examining Police Reports, Records, and Photographs in general]]
* [[Police reports of the computer crime]]
* [[Fingerprints and handwriting]]

===Investigating the Scene of Crime===
* [[Investigating the Scene of Crime in general]]
* [[Reconstructing the crime]]
* [[Use of photographs and motion pictures]]

==Discovery==
* [[Discovery in general]]
* [[Subjects of discovery; checklist]]
* [[Defense discovery options]]

==Bargaining to Reduce the Charge==
* [[In general; obtaining lesser charge]]
* [[Plea bargain checklist]]
* [[Uncertainty as to applicability of the law]]
* [[Difficulties in the admissibility of evidence]]
* [[Uncertainty as to effect of case on a jury]]
* [[Likelihood of light sentencing; equities favoring defendant]]
* [[Lack of consensus about sentencing white-collar criminals]]
* [[The possibility of restitution]]
* [[Timing of plea bargain request]]
* [[Plea bargain issues]]
* [[Determining the plea]]
* [[Persuading defendant to accept plea bargain]]
* [[Deciding on the plea]]
==Preparing for Trial==
===Determining Defenses===
* [[Determining Defenses in general]]
* [[Notice of defenses]]
* [[Identity]]
* [[Alibi]]
* [[Intent]]
* [[Authority]]
* [[Entrapment]]
* [[Statute of limitations]]
* [[Preemption]]
* [[Former jeopardy]]
* [[Impossibility]]
* [[Insanity]]

===Pretrial Motions===
* [[Motion to dismiss charge]]
* [[Motion to suppress illegally obtained evidence; checklist]]
* [[Outline of issues involving search and seizure—Pursuant to warrant]]
* [[Outline of issues involving search and seizure—Not pursuant to warrant]]
* [[Outline of issues involving search and seizure—First Amendment issues]]
* [[Outline of issues involving search and seizure—The computer user's expectation of privacy]]
* [[Motion challenging the admissibility of computer-generated evidence]]
* [[Motion for change of venue]]
* [[Motion for change of venue—Based on publicity]]
* [[Motion for a continuance]]
* [[Motion to limit trial publicity]]
===Trial Brief and Witnesses===
* [[Trial brief]]
* [[Witness preparation—in general]]
* [[Witness preparation—Expert witnesses]]
==Trial==
===Preliminary Tactics===
* [[In general]]
* [[Seating arrangement in courtroom]]
* [[Introductory remarks to veniremen]]
===Selecting the Jury===
* [[In general]]
* [[Observing jury reaction to questioning by prosecutor]]
* [[Avoiding generalization based on appearance]]
* [[Eliciting promise to require independent conviction by each juror]]
* [[Jurors' views toward computers]]
* [[Presence and effect of pretrial publicity]]
* [[Voir-dire questions checklist]]
===Motions During Trial===
* [[Motion to furnish daily transcript]]
* [[Motion to exclude nontestifying witnesses from courtroom]]
* [[Motion for mistrial]]
* [[Motion in limine]]
* [[Motion to suppress illegally obtained evidence]]
* [[Motion to suppress confession]]
* [[Motion challenging method of choosing jury]]
* [[Motion to exclude computer-generated evidence]]
* [[Motion to exclude computer-generated evidence—Best evidence rule]]
* [[Motion to exclude computer-generated evidence—Hearsay rule]]
* [[Motion to exclude computer-generated evidence—Laying business record exception foundation]]
* [[Other motions]]
===Opening Statements===
* [[In general]]
* [[Opening statement for prosecution]]
* [[Opening statement for defense]]
===The Case for the Prosecution===
* [[In general; burden of proof]]
* [[Proving computer theft]]
* [[Proving computer damage]]
* [[Proving computer trespass]]
* [[Proving invasion of privacy]]
* [[Using electronically obtained evidence]]
* [[Cross-examination of prosecution witnesses]]
* [[Witnesses testifying as to documents]]
* [[Law enforcement witnesses]]
* [[Accountant witnesses]]
* [[Impeaching witnesses granted immunity; minors]]
* [[Discrediting expert witnesses]]
* [[Discrediting expert witnesses—Illustrative cross-examination of systems analyst]]
===Presenting the Defense===
* [[In general; timing the appearance of defense witnesses]]
* [[Defendant as a witness]]
* [[Other defense witnesses; alleged codefendants]]
* [[Alibi witnesses]]
* [[Character witnesses]]
* [[Minors as defense witnesses]]
* [[Experts]]
===Defense Summation===
* [[In general]]
* [[Illustrative summation]]
===Jury Instructions===
* [[Drafting instructions to jury—key terms]]
* [[Drafting instructions to jury—Computer damage]]
* [[Drafting instructions to jury—Alteration with intent to injure or defraud]]
* [[Drafting instructions to jury—Computer theft—access]]
* [[Drafting instructions to jury—Taking, transferring, concealing, or retaining]]
==Proceedings After Trial==
* [[In general]]
* [[Conferring with probation officer]]
* [[Sentencing hearing—illustrative argument and response]]
* [[Return of exhibits]]
* [[Civil consequences of plea or finding of guilt]]