Most of us have forged something at one time or another. We might have faced more punishment than this, but we emerged relatively unscathed. As a result, many defendants do not think forgery charges are very serious, even if they face felony charges.
The reality is much different, as forgery has severe direct and collateral consequences. Forgery is generally a felony. Probation is usually available for first offenders, but this result is by no means guaranteed. Additionally, forgery is one of the most severe crimes of moral turpitude. Persons with forgery records are usually unable to find a job which involves any trust whatsoever, such as money-handling or an occasional bank run.
A good Marietta criminal defense lawyer knows how to reduce or eliminate these direct and collateral consequences. Fraud charges have a number of moving parts, so at least one defense is usually available. An attorney can leverage this defense into a not-guilty verdict at trial, a complete dismissal of charges, or a plea to a lesser included offense.
Elements of Forgery
As outlined below, there are separate forgery offenses in Georgia for check and non-check forgery. However, they have some common elements.
Intent to defraud is usually the big one. Prosecutors must prove, beyond a reasonable doubt, that the defendant intended to profit somehow from the forgery. In the age of 3D and laser printers, that element is more difficult than ever to prove. Many people copy instruments simply to prove they can do it. Most jurors understand that. So, unless officers catch the defendant In flagrante delicto (red-handed), forgery charges often do not hold up in court.
Possession of a forged instrument is sufficient. Possessing counterfeit currency is the classic example. That’s also a good example of a no-intent case. If Carla got a fake $20 in change and tries to use it, she is probably not guilty of forgery.
Carla’s innocence would be harder to establish if she had the fake $20 for quite some time. Circumstantial evidence of intent is admissible.
Levels of Forgery
In most cases, fraud level is connected to the amount of the fraud. That’s true to an extent in forgery cases. However, the type of fraud is even more important.
Delivering, altering, making, or delivering a fraudulent check with a face value under $1,500 is a misdemeanor. It’s also a misdemeanor to possess more than ten such checks. Intent to defraud is presumed in these situations.
These offenses are especially common as debit/credit cards replace most check transactions. Many cashiers are not particularly skilled at spotting fraudulent checks. At least, many defendants believe that’s the case. Furthermore, since most stores electronically debit funds from the account upon presentment, some cashiers do not pay too much attention to the details of the check.
So, people think they can get away with this offense. Unfortunately for them, many cashiers are a lot more adept at spotting fake checks than defendants give them credit for.
It is a felony (one to five years in prison) if the forged or possessed checks (ten or more) have a face value above $1,500.
These offenses usually involve payroll checks, which many people thought would be as dead as the dodo by now. Yet about 50 percent of Marietta businesses still use paper checks, especially for payroll. Paper checks are familiar. There’s nothing new to learn. Also, paper checks are easy to use. Employers must only write or type them.
Many area businesses also use paper checks for bills, payments to suppliers, and other everyday expenses. Frequently, unscrupulous accountants create fake accounts, bosses sign the checks, and the accountants cash the checks. Although the check itself is legitimate, the maker did not five his/her authority to pay the expense. Therefore, such acts are a form of check forgery.
It is also a felony (one to five years) to make, alter, or possess a forged instrument other than a check. Counterfeit concert or event tickets spring immediately to mind. Other infractions include forged identification documents, mostly drivers’ licenses.
Intent to defraud is sometimes hard to establish in these matters, especially since second-degree forgery is a possession-only case. If this defense is unavailable, these cases are rather difficult to defend.
There are two differences between first- and second-degree forgery. First-degree forgery has a longer maximum prison term (fifteen years). And, first degree forgery has an additional element, viz, uttering or delivering the forged document.
Intent to defraud seems difficult to prove in these cases, but that’s usually not the situation. For example, if Sam presents a fake drivers’ license to an officer, he is trying to trick the officer and avoid an additional fine.
Pretrial diversion is normally available in these cases, particularly in fourth-degree cases in which the defendant has no criminal record. This resolution might be available in other situations as well, if an attorney successfully negotiates with prosecutors.
These programs vary in different jurisdictions. Generally, however, if the defendant pays restitution, stays out of trouble for a few months, and completes other program requirements, prosecutors normally dismiss the charges.
The nice thing about pretrial diversion is that there is no risk. If the defendant fails any part of the program, prosecutors simply pick up where they left off. Except by that time, the available evidence has usually degraded.
Forgery and most other white-collar crimes require complaining witnesses. As time goes by, these witnesses frequently relocate beyond the court’s subpoena power. At that point, the prosecutor is entirely dependent upon voluntary cooperation. In many cases, especially if the defendant has made restitution, that cooperation is not easy to secure.
Prosecutors must establish every element of the offense beyond a reasonable doubt. The more difficult that task becomes, the easier it is to negotiate a favorable settlement.
Complex forgery charges do not always hold up in court. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. Convenient payment plans are available.