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Criminal Law/computer forensics & criminal case


Mr. Hauck,

I have a general question that I was hoping I could get your legal expertise on. It is hypothetical, but I'd appreciate any insight you could give me.

Suppose that someone disposed of a flash drive (USB drive) in the garbage, but a sanitation worker eventually plugged it in and saw some incriminating files on it. In addition to the incriminating files, there were also files with the owner's name, address, work history, and social security number, as well as photographs of the owner of the flash drive. The drive also contained non-incriminating files that someone else put on the drive before the incriminating ones were put on there (but no evidence of who this person was was on these files), as well as the name of one other person on another non-incriminating file, as if it was only that person's document.

Let's further suppose that the person at the facility turned the USB drive over to police & they executed a search warrant and found nothing inside the residence. Suppose the police interrogated the suspect and the suspect said nothing. Police later decided to prosecute based on the USB drive evidence after doing a forensic examination, and possibly the suspect's fingerprints on the USB drive (although being in the garbage this evidence might disappear).

During the trial, what good legal arguments would the defense have? What good legal arguments would the prosecution have? Would you see much chance of acquittal in this case? Or more chance of conviction? Or maybe a decent chance at a plea bargain?

Thanks for your help.


Hypothetically speaking:

Some Defense questions-

1. How did the USB find its way into the garbage and where was the garbage recovered?
2. How much time elapsed between discard and recovery and how many people have had access to the USB drive.     
3. The defense should have its own forensic examination conducted on the USB drive to determine what other files are on it and to determine if a connection exists with the suspect(s).
4. If the prosecution will not allow an independent examination of the USB will a motion for discovery which is necessary to see the evidence the prosecution has be approved by the court?

Some Prosecution questions-

1. What crime was committed?
2. Is there a logical and viable suspect(s).
3. Was the crime conducted with intent?  Was the crime a per se or statutory crime where intent does not matter?
4. Is it possible for the prosecution to meet its burden of proof of proof beyond a reasonable doubt?          


If the prosecution has a viable case they usually will pursue it unless politics, corruption or some reason why the case should not be pursued comes into play.  

The defense would want to place as much distance between the suspect and the USB as possible showing that the evidence was tainted by multiple users, etc.  In short the defense will want to know all of the inculpatory and possible exculpatory evidence stacked against the accused.

The prosecution would want to tie the suspect as close to the USB as possible showing a direct and causal connection to its custody and control prior to disposal.

If the accused did not provide a statement to the police it could benefit the defendant by making the prosecution work harder to prove its case.  

There are a lot of angles and details not known by your narrative but it sounds like it could go all ways here.  Depending on the evidence it could go for or against the prosecution, and there is always room for negotiation for a plea bargain.  The courts use them extensively because they save time and resources.  If plea bargains stopped the court dockets would be extended out by years.  Just my $02.


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Jeffrey Hauck


I would welcome the opportunity to answer questions relating to or related to the field of criminal law.


Criminologist. Professor of Criminal Justice. Licensed Private Detective with expansive clientele base encompassing hundreds of cases. Donates resources and time to the Children's Rescue Network in Orlando, FL.

Associate of Science; Bachelor of Arts; Master of Science, Doctor of Jurisprudence Degree.

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