The cornerstone of criminal defense is the SODDI defense which stands for Some Other Dude Did It. Its a tried and true classic that is alive and well in the defense of computer crimes. However, this defense is hampered by a few issues that I have previously mentioned on this blog. First, so many defendants confess or make some type of statement. This really prevents the defense attorney from arguing that someone else was responsible in many cases. Secondly, too many defense attorneys don’t appreciate the subtle computer forensics issues that are at work in the case. As I have previously mentioned, just because a user name performed some action does not mean that the State can prove that a specific person performed that action. Third, in the rare case where the defendant lives alone, it may become more difficult to come up with a scenario that someone else used the computer. However, absent a statement to the contrary, living alone does not prevent 100 friends from coming over on a certain day to use the computer thus opening up the defense. Instead, it just makes it less credible than a case where there are identifiable people living in the house.
There are number of forensics issues here that I will not cover that could make this defense either plausible or not viable. However, I will say that the attorney must be prepared for everything and must not leave any stone unturned. Even if no evidence on this issue will be presented in the defense’s case in chief, the defense attorney must not make arguments that could blow up on them. Discuss this issue with your consultant or expert to see how the evidence stacks up regardless of what the State has presented to you in discovery.