Preliminary Tactics in general

From HORSE - Holistic Operational Readiness Security Evaluation.
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In general

Strategy is important in a computer crime case as with any criminal defense. The complexity of a computer crime case, however, makes certain tactical decisions more important.

One of the first decisions that must be made is whether to accept the factual allegations of the prosecution. If the facts damaging to the defendant are for the most part irrefutably documented, and if the documents cannot be shown to be inadmissible, counsel may be able to argue the inapplicability of the law or the failure of the prosecution to adduce the evidence necessary to establish one or more elements of the crime. If, on the other hand, a number of factual issues are in dispute, counsel may argue insufficiency of the evidence.

Frequently in a case based on a complex fact situation, the defense attorney will strategically choose to clarify certain facts for the jury and allow other facts to remain unclear. The choice of which facts to clarify and those to not clarify is assisted by discovery, which should have already occurred. Nevertheless, such choices may be difficult to make until after the evidence has been presented at trial. Regardless, counsel should anticipate his or her final argument and begin to fashion a consistent strategy for direct and cross-examination. In addition, counsel must determine what attitude towards computers will benefit the defendant. If the case is one in which fostering a negative attitude towards computer users or big corporations, counsel should approach voir-dire, cross examination and summation from this point of view. If, however, fostering a positive attitude toward computers and computer users is more beneficial to the client, counsel should use that attitude in its case.

A additional strategic consideration is the novelty of the computer crime. The odds are that the court will be less prepared to deal with the problems presented in a computer crime case than in a traditional criminal matter. More often than not, the court will have little experience deciding computer questions involving scientific and technical testimony, instructing the jury on computer crime, and ruling on objections to the admissibility of computerized evidence. To some extent, counsel should try to fill the void in the court's knowledge by positioning himself or herself as the court's trusted counsel in technical matters. It may be in the client's interest for counsel to forego other tactical advantages if pursuing such a role convinces the court that it can rely on counsel's technical expertise. Implicit in this strategy is the assumption that prior to trial counsel has learned enough about computing, as it applies to the case at hand, to provide this kind of mastery of the subject matter.