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Wednesday, July 5, 2017

Check writing, Forgery, Uttering and what comes next (criminal law)

Original image at https://www.thebalance.com/how-to-check-a-check-315428


Recently, a question was asked on a law bulletin board regarding criminal culpability. While I answered the question on the Board, I think the question is a good one to share, given the frequency of client requests that are very similar.

I used my deceased father’s old checks when trying to purchase something at the store. The checks all had his name on them already (i.e. signed), but were blank. The cashier refused the check, and I left. I was stopped at the exit to the store and accused of forgery and uttering. If the checks didn’t actually get processed (i.e. no purchase was made), why am I under investigation/charged? I did it on accident

First, it is important to dispel a couple of common fallacies. Number one – it is almost inconceivable that a person would grab the wrong check, and then try to pay for something with it, when clearly, it was already signed by someone else. It is really important when discussing legal issues that (a) you DO NOT discuss anything with anyone other than a lawyer, and (2) you do NOT make up stories that make no sense. Although the story MAY make sense to you, it makes no sense to anyone in the legal field, and will almost certainly lead to charges.

What should you say when stopped by someone who questions you about an issue that could clearly be illegal? You are (a) very polite, (b) firm that you do not wish to discuss the matter without an attorney, (c) unwilling to allow any search or access to anything in your possession unless arrested or ordered by a judge (warrant). Sounds similar to Miranda warnings? They should! Although at first this may sound like you are being difficult, an could lead to further complication and charges – this is NOT the case. It is never wrong to politely decline to provide information other than your name, address where you live, and basic contact information. You only hurt yourself when you go beyond this. Most cases are lost because of what the client says. Remember this!

In your specific instance, you have three charges. Utterance – that is the attempt to circulate a document bearing false seals or signatures; forgery – that is the application of a seal or signature without the consent or knowledge of the owner; attempted fraud (bad check) – you drafted, or caused to be drafted, a check that you knew, or had reason to know, was not legitimate. You submitted that check for goods or service. All three of these are serious charges, and in the case of forgery and utterance, are felonies.

The most common defense to these types of charges is (a) consent or (b) mistake. Mistake is NOT the type mentioned in the question. “It was an accident” is no defense. However, if the mistake is that you understood you had consent, when in fact you did not, and your reliance on that understanding was reasonable, you may be able to mitigate or even stop the charges. Consent would also be clearly a defense – if the check owner indicated the check was drafted with their approval, and they authenticate the signature, then there is no forgery, utterance, or fraud. However, be careful! If you signed someone’s name, and then after the fact they consent, at the time of the drafting, it was still a forgery. A minor technicality, but important when forming the defense.

Do you need help with a criminal matter? Contact us! We have considerable experience in the VA, DC, MD area. We would be glad to meet with you for a free consult. Talk to us BEFORE you speak to the police.

Hanover Law, PC
Offices in Fairfax, VA, Resiterstown, MD, and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

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