Expert: Chris Wagoner - 3/13/2008

Question
QUESTION: Following up on my deceased husband who opened up an aim account, with AOL forwarding all of my ex-husband's email to my deceased husband's account of the same prefix - the police have charged me with accessing my ex-husband's hard drive.  This absolutely did not happen.  In this case, do the police need to provide my ex-husband's computer as evidence?  My deceased husband was just a Pick programmer - he did not have the expertise to hack a hard drive.  The charges list that our computers had software on them to remotely access computers - yes, of course, we have Citrix, which the police called "Citrus".  Both of us access clients remotely, as we are programmers.

ANSWER: Hi HelpMe,

In order to charge you with this they must prove you were the one sitting at the keyboard using it. You need to hire a Defense Attorney that is up to date on Computer Crimes.

First your attorney needs to make sure that the computers were handled and examined properly. There is a very special way they have to be handled and examined.

The examiner has to have the training to examine them.

The Examiners equipment must be up to date and licensed to them.

They have to show that you were the only one with the remote access. Could anyone else have accessed your systems remotely?

Did the examiner check for viruses, Trojans and backdoors to make sure that your system was not being used as a bot?

Did anyone else have access to your system that could have done these things?

There is a whole list of things that they have to prove, and ethically I need to stay out of a criminal defense case. But believing in fairness and making sure that the police (including myself) do the things the right way, I give you the above examples. I also believe that everyone is entitled to a fair trial and hearing.

Go here to look for a lawyer specializing in this area:
http://lawyers.findlaw.com/lawyer/practicestate/Internet%20--%20Cyberspace/

Good luck and I wish you the best..



---------- FOLLOW-UP ----------

QUESTION: My problem is that my husband, the one who was retaliating against my ex-husband, dropped dead of a blood clot.  We had three computers, we each used all three.  How can I prove that I did NOT do it?  If my husband were still alive, he could testify that it was not me - I have only one witness who saw HIM doing it, not me, but I don't know if the witness will be believed.

Did the police ALSO have to grab my ex-husband's computer to prove that it was hacked into?  The arrest warrant says that it is "believed" that I accessed his hard drive - but I sure did not and do not believe that my deceased husband did so, or he would have caused alot more hell than he did to my ex-husband.

The police will not give my attorney access to the computers that they took.  After the police found out that one more computer was in our home, they tried to get another search warrant for the home.  It was denied.  Two weeks later, I went away for a week.  I came home to the police parked in my driveway, telling me that my home had been vandalized.  The remaining computer was taken, and just for the heck of it, I suppose, my pet cat was cut up in pieces - headless and tailless, left in my living room to rot.

The police filed the whole report on the dead cat and stolen computer, but did nothing to solve the crime.

This is TRUE, I have the pictures, the police report, etc.

Answer
Dear HelpMe,

I am truly sorry your having these things happen in your life. And I can not take any kind of responsibility for what other police may or may not do.

It is not up to you to prove your innocence, that is not how our legal system works in America, it is up to them to prove you did it. Beyond a reasonable doubt. That means they have to prove to a jury that they can say it was you and can prove it. All you have to do is show it could have been someone else, raise that doubt in their minds and you can not be found guilty.

The police MUST give your attorney access to the computer files so that you can prepare a defense. Your attorney knows this and knows how to go about getting it. You need to get on him/her.

As for your missing computer and your pet, I am very sorry for your loss, if the computer came up as evidence in a case against you then I would believe the police broke into your home, but it sounds like just what you say happened, you were burglarized and sadly, your pet was killed during it. The police would have no reason to be vindictive against you. You have given me no reasons the police would want to be vindictive against you and it does not make sense that they would break in and seize the computer because they know they would not be able to use it in court and if they even said they had it that would be like saying they were guilty of burglary. Sorry but I really think that they are not the ones that did that.

As for not doing anything to solve the crime, are you sure? You know what they have been doing? I am not trying to defend them, but burglaries are very difficult to solve without physical evidence. Many go unsolved, not through lack of police effort, but from lack of evidence.

I feel for you, I truly do, but your main concern should be the fact that you have to have a attorney that can defend you and knows about computer crimes and laws. They do not have to prove you did not do it, only that it reasonably could have been someone else, like your deceased husband. The cops have to show you and you alone did it. Which I doubt very seriously they can. Having testified as an Expert at both the State and Federal Levels I can tell you unless we can prove that it was a certain person and they and they alone had access and were the ones that did it, it is VERY VERY hard to win a case. Your case sounds like you have to many people that had access to the computers and also the remote access programs give the impression that anyone could have accessed the computers from the Internet anywhere.

Good luck on your case and remember that our system is the Prosecution must prove the case against you, you do not have to prove your innocence. And you have the right to confront any accusers and view any evidence against you. So get on your attorney to get on the ball and look into this stuff.