The Defense of a Computer Crime Case: Difference between revisions
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* [[Data; intellectual property]] | * [[Data; intellectual property]] | ||
* [[Financial instrument]] | * [[Financial instrument]] | ||
* [[ | * [[Intent—Knowledge]] | ||
* [[Intent—Purpose]] | * [[Intent—Purpose]] | ||
* [[Intent—Malice]] | * [[Intent—Malice]] | ||
* [[Intent—Authorization]] | * [[Intent—Authorization]] | ||
* [[Recklessness]] | * [[Recklessness]] | ||
===Federal Laws=== | ===Federal Laws=== | ||
* [[Federal Laws in general]] | * [[Federal Laws in general]] | ||
* [[Activities involving access devices and equipment]] | * [[Activities involving access devices and equipment]] | ||
* [[Communications Decency Act]] | * [[Communications Decency Act]] | ||
* [[Child pornography legislation]] | * [[Federal Child pornography legislation]] | ||
* [[The Copyright Act]] | * [[The Copyright Act]] | ||
* [[National Stolen Property Act]] | * [[National Stolen Property Act]] | ||
| Line 36: | Line 37: | ||
===State Laws=== | ===State Laws=== | ||
* [[ | * [[State Laws in general]] | ||
* [[Illegal gains]] | * [[Illegal gains]] | ||
* [[Physical taking offenses]] | * [[Physical taking offenses]] | ||
| Line 50: | Line 51: | ||
* [[Facilitating crime]] | * [[Facilitating crime]] | ||
* [[Computer pornography]] | * [[Computer pornography]] | ||
* [[Child pornography legislation]] | * [[State Child pornography legislation]] | ||
* [[Child protection legislation; solicitation and importuning]] | * [[State Child protection legislation; solicitation and importuning]] | ||
* [[Trade secret statutes]] | * [[Trade secret statutes]] | ||
* [[Spam]] | * [[Spam]] | ||
* [[Miscellaneous laws]] | * [[Miscellaneous laws]] | ||
===Punishments and Penalties=== | ===Punishments and Penalties=== | ||
* [[ | * [[Punishments and Penalties in general]] | ||
* [[Determining factors]] | * [[Determining factors]] | ||
* [[Civil remedies]] | * [[Civil remedies]] | ||
===Auxiliary Provisions=== | ===Auxiliary Provisions=== | ||
* [[Admission of evidence]] | * [[Admission of evidence]] | ||
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* [[Illustrative form—Order for release on own recognizance]] | * [[Illustrative form—Order for release on own recognizance]] | ||
==Client Interview and Planning; Evaluating the Case== | ==Client Interview and Planning; Evaluating the Case== | ||
* [[ | * [[Client Interview and Planning; Evaluating the Case in general]] | ||
* [[Dealing with difficult technical information]] | * [[Dealing with difficult technical information]] | ||
* [[Tape recording initial client interview]] | * [[Tape recording initial client interview]] | ||
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* [[Client interview checklist]] | * [[Client interview checklist]] | ||
* [[Obtaining information about alleged codefendants; checklist]] | * [[Obtaining information about alleged codefendants; checklist]] | ||
==Fees and Costs== | ==Fees and Costs== | ||
* [[ | * [[Fees and Costs in general]] | ||
* [[Determining client's ability to pay fee]] | * [[Determining client's ability to pay fee]] | ||
* [[Factors affecting amount of fee]] | * [[Factors affecting amount of fee]] | ||
* [[Informing client of special costs]] | * [[Informing client of special costs]] | ||
* [[Collecting or securing payment of fee]] | * [[Collecting or securing payment of fee]] | ||
==The Accusatory Proceeding== | ==The Accusatory Proceeding== | ||
===Proceedings Before Grand Jury=== | ===Proceedings Before Grand Jury=== | ||
* [[ | * [[Proceedings Before Grand Jury in general]] | ||
* [[Appearance of defendant before the grand jury]] | * [[Appearance of defendant before the grand jury]] | ||
* [[Evidence presented to the grand jury]] | * [[Evidence presented to the grand jury]] | ||
* [[Separate trial]] | * [[Separate trial]] | ||
===Proceedings by Way of Preliminary Hearing=== | ===Proceedings by Way of Preliminary Hearing=== | ||
* [[ | * [[Proceedings by Way of Preliminary Hearing in general]] | ||
* [[Exclusion of witnesses and the press during testimony]] | * [[Exclusion of witnesses and the press during testimony]] | ||
* [[Prosecution's need to prove elements of crime]] | * [[Prosecution's need to prove elements of crime]] | ||
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* [[Defense motion to dismiss charges]] | * [[Defense motion to dismiss charges]] | ||
* [[Motion to reduce charge]] | * [[Motion to reduce charge]] | ||
===Arraignment; Pleas; Continuance of Case=== | ===Arraignment; Pleas; Continuance of Case=== | ||
* [[ | * [[Arraignment; Pleas; Continuance of Case in general]] | ||
* [[Demurrer to complaint; pleas]] | * [[Demurrer to complaint; pleas]] | ||
* [[Waiver or assertion of right to speedy trial]] | * [[Waiver or assertion of right to speedy trial]] | ||
==Investigating the Case== | ==Investigating the Case== | ||
===Preliminary Matters=== | ===Preliminary Matters=== | ||
* [[ | * [[Preliminary Matters in general]] | ||
* [[Use of discovery]] | * [[Use of discovery]] | ||
* [[Use of private investigators]] | * [[Use of private investigators]] | ||
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* [[Use of independent laboratory tests]] | * [[Use of independent laboratory tests]] | ||
* [[Application of forensics to computers]] | * [[Application of forensics to computers]] | ||
===Locating and Interviewing Witnesses=== | ===Locating and Interviewing Witnesses=== | ||
* [[In general; locating witnesses]] | * [[In general; locating witnesses]] | ||
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* [[Law enforcement witnesses]] | * [[Law enforcement witnesses]] | ||
===Examining Police Reports, Records, and Photographs=== | ===Examining Police Reports, Records, and Photographs=== | ||
* [[ | * [[Examining Police Reports, Records, and Photographs in general]] | ||
* [[Police reports of the computer crime]] | * [[Police reports of the computer crime]] | ||
* [[Fingerprints and handwriting]] | * [[Fingerprints and handwriting]] | ||
===Investigating the Scene of Crime=== | ===Investigating the Scene of Crime=== | ||
* [[ | * [[Investigating the Scene of Crime in general]] | ||
* [[Reconstructing the crime]] | * [[Reconstructing the crime]] | ||
* [[Use of photographs and motion pictures]] | * [[Use of photographs and motion pictures]] | ||
==Discovery== | ==Discovery== | ||
* [[ | * [[Discovery in general]] | ||
* [[Subjects of discovery; checklist]] | * [[Subjects of discovery; checklist]] | ||
* [[Defense discovery options]] | * [[Defense discovery options]] | ||
==Bargaining to Reduce the Charge== | ==Bargaining to Reduce the Charge== | ||
* [[In general; obtaining lesser charge]] | * [[In general; obtaining lesser charge]] | ||
| Line 154: | Line 166: | ||
==Preparing for Trial== | ==Preparing for Trial== | ||
===Determining Defenses=== | ===Determining Defenses=== | ||
* [[ | * [[Determining Defenses in general]] | ||
* [[Notice of defenses]] | * [[Notice of defenses]] | ||
* [[Identity]] | * [[Identity]] | ||
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* [[Impossibility]] | * [[Impossibility]] | ||
* [[Insanity]] | * [[Insanity]] | ||
===Pretrial Motions=== | ===Pretrial Motions=== | ||
* [[Motion to dismiss charge]] | * [[Motion to dismiss charge]] | ||
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==Trial== | ==Trial== | ||
===Preliminary Tactics=== | ===Preliminary Tactics=== | ||
* [[ | * [[Preliminary Tactics in general]] | ||
* [[Seating arrangement in courtroom]] | * [[Seating arrangement in courtroom]] | ||
* [[Introductory remarks to veniremen]] | * [[Introductory remarks to veniremen]] | ||
===Selecting the Jury=== | ===Selecting the Jury=== | ||
* [[ | * [[Selecting the Jury in general]] | ||
* [[Observing jury reaction to questioning by prosecutor]] | * [[Observing jury reaction to questioning by prosecutor]] | ||
* [[Avoiding generalization based on appearance]] | * [[Avoiding generalization based on appearance]] | ||
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* [[Presence and effect of pretrial publicity]] | * [[Presence and effect of pretrial publicity]] | ||
* [[Voir-dire questions checklist]] | * [[Voir-dire questions checklist]] | ||
===Motions During Trial=== | ===Motions During Trial=== | ||
* [[Motion to furnish daily transcript]] | * [[Motion to furnish daily transcript]] | ||
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* [[Other motions]] | * [[Other motions]] | ||
===Opening Statements=== | ===Opening Statements=== | ||
* [[ | * [[Opening Statements in general]] | ||
* [[Opening statement for prosecution]] | * [[Opening statement for prosecution]] | ||
* [[Opening statement for defense]] | * [[Opening statement for defense]] | ||
===The Case for the Prosecution=== | ===The Case for the Prosecution=== | ||
* [[In general; burden of proof]] | * [[In general; burden of proof]] | ||
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* [[Proving invasion of privacy]] | * [[Proving invasion of privacy]] | ||
* [[Using electronically obtained evidence]] | * [[Using electronically obtained evidence]] | ||
* [[Cross-examination of prosecution witnesses]] | * [[Cross-examination of prosecution witnesses for the Prosecution]] | ||
* [[Witnesses testifying as to documents]] | * [[Witnesses testifying as to documents]] | ||
* [[Law enforcement witnesses]] | * [[Law enforcement witnesses for the Prosecution]] | ||
* [[Accountant witnesses]] | * [[Accountant witnesses]] | ||
* [[Impeaching witnesses granted immunity; minors]] | * [[Impeaching witnesses granted immunity; minors]] | ||
* [[Discrediting expert witnesses]] | * [[Discrediting expert witnesses]] | ||
* [[Discrediting expert witnesses—Illustrative cross-examination of systems analyst]] | * [[Discrediting expert witnesses—Illustrative cross-examination of systems analyst]] | ||
===Presenting the Defense=== | ===Presenting the Defense=== | ||
* [[In general; timing the appearance of defense witnesses]] | * [[In general; timing the appearance of defense witnesses]] | ||
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* [[Experts]] | * [[Experts]] | ||
===Defense Summation=== | ===Defense Summation=== | ||
* [[ | * [[Defense Summation in general]] | ||
* [[Illustrative summation]] | * [[Illustrative summation]] | ||
===Jury Instructions=== | ===Jury Instructions=== | ||
* [[Drafting instructions to jury—key terms]] | * [[Drafting instructions to jury—key terms]] | ||
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* [[Drafting instructions to jury—Taking, transferring, concealing, or retaining]] | * [[Drafting instructions to jury—Taking, transferring, concealing, or retaining]] | ||
==Proceedings After Trial== | ==Proceedings After Trial== | ||
* [[ | * [[Proceedings After Trial in general]] | ||
* [[Conferring with probation officer]] | * [[Conferring with probation officer]] | ||
* [[Sentencing hearing—illustrative argument and response]] | * [[Sentencing hearing—illustrative argument and response]] | ||
* [[Return of exhibits]] | * [[Return of exhibits]] | ||
* [[Civil consequences of plea or finding of guilt]] | * [[Civil consequences of plea or finding of guilt]] | ||
Latest revision as of 20:29, 22 February 2009
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
- Federal 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
- State Child pornography legislation
- State Child protection legislation; solicitation and importuning
- Trade secret statutes
- Spam
- Miscellaneous laws
Punishments and Penalties
Auxiliary Provisions
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
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
Preliminary Tactics
Selecting the Jury
- 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
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 for the Prosecution
- Witnesses testifying as to documents
- Law enforcement witnesses for the Prosecution
- 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
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