Let's think about the types of cases that prosecutors need to show "intent". In criminal cases, it is critical to show elements of the crime such as knowledge, intent, and capability. Showing that somebody voluntarily and intentionally possessed cp is the duty of the prosecuting attorney. The job of LE computer examiners is to recover the facts and provide professional opinions in support of the prosecution. And before anyone throws a fit saying that is a biased statement… remember that if the evidence isn't there, we aren't magically creating it and report as such. And that part of showing intent is to prove that the contraband didn't end up on the computer unknowingly to the user (malware, planted evidence, etc).
Now on the civil side, what do we need to show intent on? I there may be some situations which may require the need to show intent, but it doesn't seem quite as prevalent or critical. For example, nobody accidentally hacks into a corporate network. I find it hard to believe that someone quits their job and accidentally happens to take all the company's intellectual property and uses it for his own profit. Nobody accidentally blackmails their boss into giving them a promotion. These are intentional actions that just require the examiners to prove they occurred.
Let's think about the types of cases that prosecutors need to show "intent".
Very good ) .
Let's think about the types of cases that prosecutors need to show "intent". In criminal cases, it is critical to show elements of the crime such as knowledge, intent, and capability. Showing that somebody voluntarily and intentionally possessed cp is the duty of the prosecuting attorney. The job of LE computer examiners is to recover the facts and provide professional opinions in support of the prosecution.
Well, two interesting points
- the duty of the computer examiners is to "recover the facts" and "provide professional opinions"*
- the duty of the prosecuting attorney is to "show intent"
*maybe not "only" in "in support of the prosecution", professional opinions are IMHO wink "professional opinions" and not "in support" of *anything* if not truth, actual facts, possible explanations of an observed phenomenon.
And before anyone throws a fit saying that is a biased statement… remember that if the evidence isn't there, we aren't magically creating it and report as such. And that part of showing intent is to prove that the contraband didn't end up on the computer unknowingly to the user (malware, planted evidence, etc).
I don't think anyone is going to flame you about this, but the "showing intent" is a duty of the prosecutor (in your words) and I guess that the "proving" it (in the sense of "accept as prove") is mainly in the hands of the judge and jury.
But we are still within the CP "branch".
Now on the civil side, what do we need to show intent on? I there may be some situations which may require the need to show intent, but it doesn't seem quite as prevalent or critical. For example, nobody accidentally hacks into a corporate network. I find it hard to believe that someone quits their job and accidentally happens to take all the company's intellectual property and uses it for his own profit. Nobody accidentally blackmails their boss into giving them a promotion. These are intentional actions that just require the examiners to prove they occurred.
So, basically you are saying that set apart the CP "branch", there is no (common or less common) criminal case where the need to "prove" intent arises, nor a civil one that you know of or that you can recall?
jaclaz
In my line of work, I often attempt to show at least control, and best action by a specific individual, by implying.
I never state "John Doe logged in", I will state "user account John Doe was accessed with correct password on first try", or such.
Hypothetically - I would show building security card swipe, possibly video of him in the front lobby, a machine with password protected user account login date/time, show their corporate cell phone GPS location and to whom that phone is assigned, browser access to a personal site, protected by user/password, making and receiving calls to/from others from his desk phone with his voice.
I never say John Doe was the one swiping the badge, but his card was used, who logged in, but his account and password was used, at the same time when his corporate cell phone was geographically nearby to that machine, and someone logged into his personal account with his personal information, all the while taking and making calls to others in the office.
Could someone steal his badge, dress up like him, steal his network user password, steal his cell phone, steal a personal password, make prank calls and imitate his voice? Of course. Question is, how likely is it? Would a reasonable person believe that?
I use dissimilar systems' information correlated over time to show most likely individual.
When it comes to intent, I can show it similarly by sequence of steps that most likely require explicit user interaction. I could never prove it beyond a shadow of doubt.
Most of the spoliation defenses I hear is always "I had no intention" . . .
Such would be deletion of e-mail, running clean up tools, and so on.
Let's think about the types of cases that prosecutors need to show "intent". In criminal cases, it is critical to show elements of the crime such as knowledge, intent, and capability. Showing that somebody voluntarily and intentionally possessed cp is the duty of the prosecuting attorney. The job of LE computer examiners is to recover the facts and provide professional opinions in support of the prosecution. And before anyone throws a fit saying that is a biased statement… remember that if the evidence isn't there, we aren't magically creating it and report as such. And that part of showing intent is to prove that the contraband didn't end up on the computer unknowingly to the user (malware, planted evidence, etc).
Now on the civil side, what do we need to show intent on? I there may be some situations which may require the need to show intent, but it doesn't seem quite as prevalent or critical. For example, nobody accidentally hacks into a corporate network. I find it hard to believe that someone quits their job and accidentally happens to take all the company's intellectual property and uses it for his own profit. Nobody accidentally blackmails their boss into giving them a promotion. These are intentional actions that just require the examiners to prove they occurred.
Could someone steal his badge, dress up like him, steal his network user password, steal his cell phone, steal a personal password, make prank calls and imitate his voice? Of course. Question is, how likely is it? Would a reasonable person believe that?
WHY exactly do you think it is called "Mission Impossible"? wink
jaclaz
You have a high success rate because the mere thought if the type of charge sickens people and they immediately associate guilt with any crime where a child is involved.
Doubt that? Watch the faces of the jurors and how long they hold on to the evidence, or if they even look at it. Look at someone who is erroneously charged and vindicated. No way they ever get their normal life back, because they are always associated with having that hang over their head.
Actually we have a high success rate because we do thorough investigations on the ground and thorough analysis of the computers to ensure the correct person is charged. One of my examinations not only led to the complete exoneration of the suspect (never charged incorrectly) but led to the actual offender being arrested and charged.
Rarely do the jurors in CP matters (in WA anyway) actually see any offending material. The defense here will always concede that the material found is indeed CP, which takes away the need for anyone to view the material. Then it all becomes about the intent, which is where the good old traditional police work and interview techniques come in to play. So jury bias is not really a factor in any of the cases I've been involved in.
Rarely do the jurors in CP matters (in WA anyway) actually see any offending material. The defense here will always concede that the material found is indeed CP, which takes away the need for anyone to view the material. Then it all becomes about the intent, which is where the good old traditional police work and interview techniques come in to play. So jury bias is not really a factor in any of the cases I've been involved in.
I'll second this, usually a judge will do their best to ensure that images are never seen by a jury. I've only had it in one case so far. that said with a lot of CP cases the suspect usually enters a guilty plea, often the day of the trial.
If you can't see the images, whose word are you going to take?
Would you convict someone based on someone telling you that there are images there?
Would you want to be convicted based on not being able to see the evidence?
CP is just a bad example of a crime and to speak on Intent, because once again the nature of the crime and the love people have for kids.
Rarely do the jurors in CP matters (in WA anyway) actually see any offending material. The defense here will always concede that the material found is indeed CP, which takes away the need for anyone to view the material. Then it all becomes about the intent, which is where the good old traditional police work and interview techniques come in to play. So jury bias is not really a factor in any of the cases I've been involved in.
I'll second this, usually a judge will do their best to ensure that images are never seen by a jury. I've only had it in one case so far. that said with a lot of CP cases the suspect usually enters a guilty plea, often the day of the trial.
If you can't see the images, whose word are you going to take?
Would you convict someone based on someone telling you that there are images there?
Would you want to be convicted based on not being able to see the evidence?
CP is just a bad example of a crime and to speak on Intent, because once again the nature of the crime and the love people have for kids.
Rarely do the jurors in CP matters (in WA anyway) actually see any offending material. The defense here will always concede that the material found is indeed CP, which takes away the need for anyone to view the material. Then it all becomes about the intent, which is where the good old traditional police work and interview techniques come in to play. So jury bias is not really a factor in any of the cases I've been involved in.
I'll second this, usually a judge will do their best to ensure that images are never seen by a jury. I've only had it in one case so far. that said with a lot of CP cases the suspect usually enters a guilty plea, often the day of the trial.
You misunderstand. The defence see the images, they agree that they are in fact IIC (Indecent Images of Children), there is therefore no reason for a jury to see them. If the defence disputes this, then they can be shown to the jury to make a decision on whether they are IIC. In UK law they are the ones who ultimately decide if they are or not.
Therefore the jury do no need to see and are not made biased by seeing the images, however a defendant is not convicted on some phantom images as you seem to suggest.
As for whether this is a good example of proving intent, it seems one of the best as there have been instances where IIC has been found without it being the intent of the user.
As mentioned before, if you leave a company and take a load of their intellectual property or commit a fraud using ebay and your computer accessed ebay on that day at that time and relating to a specific item, then intent seems more straight forward. Arguing with well I went to a porn site and some images popped up requires looking at intent more.
Thank you for your response.
In the US the USA makes the distinction on if it is CP or not, the Jury can just see the images to see what they are working with.
I've seen AUSA's before who asked the judge how long they can show each image and they were given a time, say 20 seconds and they would hold up the image in front of the jury box for that time and then move on to the next image. You can't win a case if you are a defendant after the jury has seen such horrific things.
If you can't see the images, whose word are you going to take?
Would you convict someone based on someone telling you that there are images there?
Would you want to be convicted based on not being able to see the evidence?
CP is just a bad example of a crime and to speak on Intent, because once again the nature of the crime and the love people have for kids.
Rarely do the jurors in CP matters (in WA anyway) actually see any offending material. The defense here will always concede that the material found is indeed CP, which takes away the need for anyone to view the material. Then it all becomes about the intent, which is where the good old traditional police work and interview techniques come in to play. So jury bias is not really a factor in any of the cases I've been involved in.
I'll second this, usually a judge will do their best to ensure that images are never seen by a jury. I've only had it in one case so far. that said with a lot of CP cases the suspect usually enters a guilty plea, often the day of the trial.
You misunderstand. The defence see the images, they agree that they are in fact IIC (Indecent Images of Children), there is therefore no reason for a jury to see them. If the defence disputes this, then they can be shown to the jury to make a decision on whether they are IIC. In UK law they are the ones who ultimately decide if they are or not.
Therefore the jury do no need to see and are not made biased by seeing the images, however a defendant is not convicted on some phantom images as you seem to suggest.
As for whether this is a good example of proving intent, it seems one of the best as there have been instances where IIC has been found without it being the intent of the user.
As mentioned before, if you leave a company and take a load of their intellectual property or commit a fraud using ebay and your computer accessed ebay on that day at that time and relating to a specific item, then intent seems more straight forward. Arguing with well I went to a porn site and some images popped up requires looking at intent more.