Prosecution's need to prove elements of crime

Prosecution's need to prove elements of crime

At the preliminary hearing, the prosecution must meet a standard of proof that reasonable or probable cause exists to believe that a computer crime was committed and that the accused committed it. Depending on the specific statute involved,FN8 the prosecutor must present evidence that all of the elements of the crime were met. Where prosecution is based on a computer crime statute, the elements will usually include access to a computer and intent to perpetrate a scheme to defraud or extort.FN9

The nature and extent of proof offered by the prosecution in a computer crime case varies considerably. Complex technical or financial issues may require extensive testimony and documentation. In many cases however, the prosecution may offer a "bare bones" case before the magistrate because the standard of proof is much lower than it would be at the time of trial. The prosecution will want to minimize the chance of testimony being given that may later be used against the prosecution case. Conversely, the defense attorney will want to examine those witnesses who are called by the prosecution as thoroughly as possible to elicit the maximum information that may subsequently be used in trial. Counsel will want to avoid eliciting testimony, which might give rise to additional charges being brought against the client.FN10