Dec. 1, 2010 at 6:28 PM ET
The criminal trial against a man accused of modifying, or "modding," Xbox game machines was put on hold Wednesday after the federal judge overseeing the case berated the prosecution and questioned their use of witnesses who may have, themselves, broken the law.
U.S. District Judge Philip Gutierrez told the prosecuting attorneys that he had “serious concerns about the government’s case,” according to a report from Wired.
As we reported earlier, opening statements were scheduled to begin Wednesday morning in the criminal trial of 28-year-old Matthew Crippen of Los Angeles. Crippen — who is accused of modifying Microsoft-made Xbox 360 game consoles for money so the machines could play pirated games and other content — faces time in prison if convicted. (msnbc.com is a joint venture of Microsoft and NBC Universal.)
Authorities arrested Crippen last year on accusations that he violated the Digital Millennium Copyright Act. He was ultimately charged with two counts of trying to circumvent anti-piracy measures. This trial marks the first time a federal prosecution for console-modding has reached a jury trial.
Wired writer David Kravets has been in the courtroom and reports:
Among the judge’s host of complaints against the government was his alarm that prosecutors would put on two witnesses who may have broken the law.
One is Entertainment Software Association investigator Tony Rosario, who secretly video-recorded defendant Matthew Crippen allegedly performing the Xbox mod in Crippen’s Los Angeles suburban house. The defense argues that making the recording violates California privacy law. The other witness is Microsoft security employee Ken McGrail, who analyzed the two consoles Crippen allegedly altered. McGrail admitted that he himself had modded Xboxes in college.
“Maybe two of the four government witnesses committed crimes,” the judge said from the bench. “I think it is relevant and the jury is going to hear about it — both crimes.”
Wired reports that opening arguments were put on hold and, after the berating was over, federal prosecutors asked for a recess to determine whether they would offer the defendant a deal, seek dismissal of the case or move forward with it.