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
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
- 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
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
Investigating the Scene of Crime
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
- 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
- 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
- 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
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