N.J. Model Criminal Jury Charge, N.J.S.A. 2C:20-25f

Approved 6/11/18

COMPUTER CRIMINAL ACTIVITY – RECKLESSLY ALTERS

N.J.S.A. 2C:20-25(f)

The indictment charges the defendant with the offense of computer criminal activity .

That section of our statute reads in pertinent part:

A person is guilty of computer criminal activity if the person

purposely or knowingly and without authorization, or in excess of

authorization, accesses and recklessly alters, damages or destroys

any data, data base, computer, computer storage medium,

computer program, computer software, computer equi pment,

computer system or computer network

In order to find the defendant guilty of this offense, the State must prove each of the

following elements beyond a reasonable doubt:

(1) That he/she accessed data, a data base, a computer, computer storage medium, a

computer program, computer software, computer equipment, a computer system

or a computer network;

(2) That he/she did so purposefully or knowingly;

(3) That he/she accessed the item either without authorization or in excess of his/her

authorization; and

(4) That he/she recklessly altered, damaged or destroyed the item.

The first element that the State must prove beyond a reasonable doubt is that the

defendant purposely or knowingly accessed an item.

A person acts purposely with respect to the nature of his/her conduct or a result thereof if

it is his/her conscious object to engage in conduct of that nature or to cause such a result. A

person acts purposely with respect to attendant circumstances if he/she is aware of the existence

of such circumstances or he/she believes or hope that they exist. “With purpose,” “designed,”

“with design” or equivalent terms have the same meanings.1

A person acts knowingly with respect to the nature of his/her conduct or the attendant

circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances

exist, or he/she is aware of a high probability of their existence. A person acts knowingly with

respect to a result of his/her conduct if he/she is aware that it is practically certain that his/her

1 N.J.S.A. 2C:2-2(b)(1).

COMPUTER CRIMINAL ACTIVITY – RECKLESSLY ALTERS

N.J.S.A. 2C:20-25(f)

conduct will cause such a result. “Knowing,” “with knowledge or equivalent terms have the

same meaning.2

Purpose and knowledge are conditions of the mind which cannot be seen and can only be

determined by inferences fr om conduct, words or acts. A state of mind is rarely susceptible of

direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary,

members of the jury, that the State produce witnesses to testify that an accused said he/she had a

certain state of mind when he/she engaged in a particular act. It is within your power to find that

such proof has been furnished beyond a reasonable doubt by inference which may arise from the

nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time

and place, and from all of the surrounding circumstances.

“Access” means to instruct, communicate with, store data in, retrieve data from, or

otherwise make use of any resources of a computer, computer storage medium, computer system,

or computer network.3

The second element th at the State must prove beyond a reasonable doubt is that the item

accessed was [CHOOSE APPROPRIATE] data, a data base, a computer , storage medium, a

computer program, compute r software, computer equipment, a computer system, or a computer

network.

[CHOOSE APPROPRIATE]

“Data” means information, facts, concepts, or instructions contained in a computer,

computer storage medium, computer system, or computer network. It shall also include, but not

be limited to, any alphanumeric, hexadecimal, octal or binary code.4

“Data base” means a collection of data.5

“Computer program” means a series of instructions or statements executable on a

computer, which directs the computer system in a manner to produce a desired result.6

“Computer software” means a set of computer programs, data, procedures, and associated

documentation concerned with the operation of a computer system.7

2 N.J.S.A. 2C:2-2(b)(2).

3 N.J.S.A. 2C:20-23(a).

4 N.J.S.A. 2C:20-23(h).

5 N.J.S.A. 2C:20-23(i).

6 N.J.S.A. 2C:20-23(e).

COMPUTER CRIMINAL ACTIVITY – RECKLESSLY ALTERS

N.J.S.A. 2C:20-25(f)

“Computer equipment” means any equipment or devices, including all input, output,

processing, storage, software, or communication facilities, int ended to interface with the

computer.8

“Computer” means an electronic, magnetic, optical, electrochemical or other high speed

data processing device or another similar device capable of executing a computer program,

including arithmetic, logic, memory, dat a storage or input -output operations and includes all

computer equipment connected to such a device, computer system or computer network, but

shall not include an automated typewriter or typesetter or a portable, hand-held calculator.9

“Computer system” me ans a set of interconnected computer equipment intended to

operate as a cohesive system.10

“Computer network” means the interconnection of communication lines, including

microwave or other means of electronic communications, with a computer through remote

terminals, or a complex consisting of two or more interconnected computers, and shall include

the Internet.11

[RESUME CHARGE]

The third element that the State has to prove beyond a reasonable doubt is th at the

defendant accessed the item without authorization or in excess of his/her authorization.

I have already explained the meaning of “access” to you.

“Authorization” means permission, authority or consent given by a person who possesses

lawful authority to grant such permission, authority or consent to another person to access,

operate, use, obtain, take, copy, alter, damage or destroy a computer, computer network,

computer system, computer equipment, computer software, computer program, computer storage

medium, or data. An actor has authorization of a reasonable person would believe that the act

was authorized.12

7 N.J.S.A. 2C:20-23(f).

8 N.J.S.A. 2C:20-23(c).

9 N.J.S.A. 2C:20-23(b).

10 N.J.S.A. 2C:20-23(g).

11 N.J.S.A. 2C:20-23(d).

12 N.J.S.A. 2C:20-23(q).

COMPUTER CRIMINAL ACTIVITY – RECKLESSLY ALTERS

N.J.S.A. 2C:20-25(f)

The fourth element that the State must prove beyond a reasonable doubt is that the

defendant recklessly altered, damaged, or destroyed the [CHOOSE APPROPRIATE] data, a

data base, a computer , storage medium, a computer program, compute r software, computer

equipment, a computer system, or a computer network.

A person acts recklessly with respect to a material element of an offense when he or she

consciously disregards a substantial and unjustifi able risk that the material element exists or will

result from his or her conduct. The risk must be of such a nature and degree that, considering the

nature and purpose of the actor’s conduct and the circumstances known to him/her , its disregard

involves a gross deviation from the standard of conduct that a reasonable person would observe

in the actor’s situation. “Recklessness,” “with recklessness” or equivalent terms have the same

meaning.

A state of mind is rarely susceptible of direct proof, but must or dinarily be inferred from

the facts. Therefore, it is not necessary, members of the jury, that the State produce witnesses to

testify that an accused said he/she had a certain state of mind when he/she engaged in a particular

act. It is within your power to find that such proof has been furnished beyond a reasonable doubt

by inference which may arise from the nature of his/her acts and his/her conduct, and from all

he/she said and did at the particular time and place, and from all of the surrounding

circumstances.

If after a consideration of all the evidence you find that the State has failed to prove any

element of the offense beyond a reasonable doubt, you must find the defendant not guilty.

If, however, after a consideration of all the evidence you are convinced beyond a

reasonable doubt that the State has proven every element beyond a reasonable doubt, then you

must find the defendant guilty.

[CHARGE AS TO VALUE]

If you find that the State has proven every element of the offense beyond a reasonable

doubt, then you must go on to determine the value of the damage.

The State must prove the amount of the property beyond a reasonable doubt. If you find

the defendant guilty of the offense, then you must indicate whether you find the value of the

damage exceeded $5,000.

COMPUTER CRIMINAL ACTIVITY – RECKLESSLY ALTERS

N.J.S.A. 2C:20-25(f)

[CHARGE IF FIRST-DEGREE ALLEGED]

If you find that the State has proven every element of the offense beyond a reasonable

doubt that the defendant purposely or knowingly and without authorization, or in excess of

authorization accesses and recklessly alters, damages, or destroys any data, data base, computer

storage medium, computer program, computer software, computer equipment, computer,

computer system or computer network, then you must go on to determine whether the offense

resulted in:

(1) a substantial interruption or impairment of public communication, transportation,

supply of water, gas or power, or other public service. 13 The term ‘substantial

interruption or impairment’ shall mean such interruption or impairment that:

(a) affects 10 or more structures or habitations; or

(b) lasts for two or more hours; or

(c) creates a risk of death or significant bodily injury to any person; or

(2) damages or loss in excess of $250,000; or

(3) significant bodily injury14 to any person.

If the State has proved these additional elements beyond a reasonable doubt, then you

must find the defendant guilty of first-degree computer criminal activity.

If the State has not proved these additional elements beyond a reasonable doubt, then you

must find the defendant guilty of either fourth-degree or third-degree computer criminal activity,

depending on what you found with respect to the value.

13 N.J.S.A. 2C:20-25(g).

14 Significant bodily injury is defined at N.J.S.A. 2C:11-1(d) as bodily injury which creates a temporary

loss of the function of any bodily member of organ or temporary loss of any one of the five senses.