Discovery in general

In general

The issues in a computer crime case are not neat, but some general questions, which must be answered during discovery, cover the hardware being used and whether it has been modified in any manner, the peripheral devices being used, whether there is clock manipulation, the identification of programs used and accuracy of such, and identification of person who can testify for such programs.FN60

Practically, the defendant should always request anything involved with the case. Even in light of the prosecution's obligation to disclose, every request should be made because the sanctions for failure to disclose information to the defense are often more severe when a specific request for information has been made.

Although numerous items and their contents can be the object of a subpoena, a discovery request, or a search and seizure, crimes involving unauthorized access to a computer or electronic communications, or use of a computer in furtherance of an illegal act, usually involve as evidence only items containing information or data for example, tapes, disks, print-outs and related documentation.FN61

In each jurisdiction, the attorney should take advantage of the various procedures afforded to prepare the defense. In many jurisdictions, counsel is required to give notice to the prosecution of the motion for discovery, accompanied by affidavits and declarations stating the nature of the objects sought, their relevancy, and the appropriate law. By such discovery, counsel may be granted a hearing to obtain orders to discover much of the prosecution's case. Counsel should discover originals of all the documentary evidence in the possession of the prosecution. Items must be designated with specificity.FN62

If counsel's motion for discovery is denied by the court, a writ of mandamus is the proper remedy.FN63

In a trade secret case, the prosecutor needs to be able to find and reveal enough evidence to establish the elements of the criminal case beyond a reasonable doubt. This is not an affirmative duty to reveal everything that is relevant to the case. Less than everything might service if guilt is established beyond a reasonable doubt. In order to make a stronger case, the prosecutor will ordinarily wish to make as much of an evidentiary showing as he or she can, which may involve revealing all aspects of a trade secret.FN64