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

• 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

• 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

• 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

• 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

• In general
• Appearance of defendant before the grand jury
• Evidence presented to the grand jury
• Separate trial

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

• In general
• Demurrer to complaint; pleas
• Waiver or assertion of right to speedy trial

Investigating the Case

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

• In general
• Police reports of the computer crime
• Fingerprints and handwriting

Investigating the Scene of Crime

• In general
• Reconstructing the crime
• Use of photographs and motion pictures

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

• 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