Subjects of discovery; checklist

Subjects of discovery; checklist

The following checklist contains items commonly used as evidence by the prosecution in computer crime cases. Defense counsel should be aware of these when formulating the discovery request:

• Statements of defendant
• Statements of any alleged codefendants
• Names and addresses of all prosecution witnesses
• Statements of all witnesses
• Police crime laboratory reports
• Other records, reports, and papers of any nature, that counsel is aware of, pertaining to case
• Photographs
• Diagrams
• Tape recordings
• Handwriting samples and analysis
• Fingerprint evidence
• Footprints and identification reports
• Systems documentation for computer system allegedly compromised
• Organizational chart of victim computer user
• Documentation for EDP audit packages used to detect method of crime
• Proof of any so-called similar acts the prosecution intends to use at trial.FN65

The following list is adapted from a request for inspection of materials made by a defendant accused of destroying computerized criminal justice records.

• A list of all materials upon which each of the allegations in the notice of punitive action (against defendant) are based
• A list of all records of any kind whatsoever, in existence at any time during the period (beginning and end of period are specified), which pertain in any way to the problems, failures, slowdowns, etc. of the Record Update Section, the Criminal History System CHS as a whole, or any part thereof, or any investigations or analyses thereof during that period
• The complete report of Internal Affairs Investigation (identifying number of investigation is indicated), and any other investigation or investigations relating to the failures and problems described in said report
• Sound recording of defendant's interrogation
• A list of all eyewitnesses to the incidents or circumstances upon which the allegations against defendant are based
• A list of all the witnesses who were in any way involved in analyzing, documenting, correcting, or treating the problems being experienced with the automated criminal history system
• All documentation of computer, system, or terminal line downtime
• All records of inquiries made of the CLETS/CJIS system for purposes of the investigation into any of the difficulties experienced by the systems
• All logs kept by any person of video terminal alarm signals received for all dates said system was deployed, and any automated logs pertaining thereto
• The operation manual or other similar document describing the operation, functions, troubleshooting, and maintenance of the (brand name) video terminals
• The field operating manual or other similar document or documents specifying the method of operation of the field interrogation of the automated or other criminal history system and the type of response the system is capable of giving to the various kinds of inquiry that can be made
• CLETS and CJIS monitor rolls
• CLETS and CJIS journal information
• A record of all corrections made to the criminal history system, CLETS, CJIS, or other records as a result of BID tags indicating that there were errors or deficiencies in information "on line"
• Documentation of all deletions made of information in the criminal history system
• All records of field inquiries and other inquiries of the criminal history system for all CII file numbers allegedly affected by defendant's alleged misdeeds
• All plans, documents, policies, instructions, and procedures related to the interface of the automated CHS and manual CHS files
• Criminal History System computer program flow charts, showing the automated CHS operation, including responses the system, its computers, or any component thereof would make in response to the possible malfunctions, errors, mistakes, or defects in instructions or information on file or attempted to be placed on line or erased from the system
• Any codes, keys, or other aids that can be used in deciphering the information contained on the various printouts, journals, monitor rolls, etc. of the CHS as may be relevant
• Complete personnel schedules for the Record Update Section
• Defendant requests that all information and records of problems and procedures followed in investigating facts discovered be preserved and steps taken to ensure that such information not be destroyed or otherwise lost. It is necessary to preserve the complex web of systems, procedures, information and records to investigate the possibility of error, misperception, inaccuracies, and biases within the investigation, the CLETS/CJIS systems, etc.FN66

Cumulative Supplement

Cases:

Government expert's report: Proposed testimony of government computer security and forensic practitioners was expert testimony, so that federal rule of criminal procedure requiring government to give defendant a written summary of his testimony before trial applied, in prosecution for endeavoring to obstruct justice, and altering, destroying, or concealing documents; testimony relied on forensic software tests run by expert, which used searches to identify documents that were deleted from defendant's computer files, and the interpretation of those reports required expert computer knowledge beyond what the average lay person would have. Fed.Rules Cr.Proc.Rule 16(a)(1)(G), 18 U.S.C.A.; Fed.Rules Evid.Rule 702, 28 U.S.C.A. U.S. v. Ganier, 468 F.3d 920, 2006 FED App. 0423P (6th Cir. 2006); West's Key Number Digest, Criminal Law 627.6(4).