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The law against forgery is designed to protect society from the deceitful creation or alteration of writings on whose authenticity people depend in their important affairs. A person who, with the purpose of deceiving or injuring, makes or alters a writing in such a way as to convey a false impression concerning its authenticity is guilty of forgery in its contemporary sense.
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History of Forgery
The law of forgery may have originated with an early Roman law (c. 80 B.C.) that prohibited falsification of documents describing the passing on of land to heirs. The precise scope of what was considered forgery at common law is not universally agreed upon, but a statute passed in the time of Queen Elizabeth I (An Act against forgers of false deeds and writings, 5 Eliz. 1, c. 14 (1562) (England)) prohibited forgery of publicly recorded, officially sealed documents with the intent to affect the title to land, as well as the knowing use of such documents as evidence in court. In the first major expansion of the law’s coverage, a 1726 decision declared that a false endorsement on an unsealed private document was indictable both under the Elizabethan statute and at common law (Rex v. Ward, 92 Eng. Rep. 451 (K.B. 1726)). Writing only half a century later, William Blackstone was able to declare, after referring to several contemporary statutes, that ‘‘there is now hardly a case possible to be conceived wherein forgery, that tends to defraud, whether in the name of a real or fictitious person, is not made a capital crime’’ (*250). Blackstone defined common law forgery, which he also called crimen falsi, as ‘‘the fraudulent making or altering of a writing to the prejudice of another man’s right.’’ Pillory, fines, and imprisonment were the penalties in those rare cases that were not subject to capital punishment (*247).
American Law of Forgery
As with their English antecedents, early American prohibitions of forgery focused more on the types of documents covered than on clarifying the definition of the crime itself. As a result, a rather technical body of case law developed. The most important effort to simplify and rationalize the law was the American Law Institute’s Model Penal Code of 1962, variations of which were gradually adopted by the states. However, the principal federal forgery statute, which prohibits false making, forgery, or alteration of any writing for the purpose of obtaining or receiving any sum of money from the United States government, has remained virtually unchanged since its enactment (An Act for the punishment of frauds committed on the government of the United States, ch. 38, 3 Stat. 771 (1823)). This law, codified under 18 U.S.C. § 495 (1999), contains no definition of its central term, forges, and has been authoritatively interpreted by the United States Supreme Court to cover only that conduct which was understood as forgery in 1823 (Gilbert v. United States, 370 U.S. 650 (1962)). The definition of forgery applied in a state prosecution is determined by the statutes of that state and by start-court interpretation of those laws.
The problems of interpretation in forgery prosecutions may be grouped around the three key elements of the common law offense: false making, writing, and intent to defraud.
Although a few jurisdictions have held to the contrary, the notion of false making in forgery generally refers only to a document’s authenticity and not to the veracity of any factual assertions within it. A written statement may be full of lies and used to cheat, but this does not make it a forgery; on the other hand, an otherwise legitimate deed on which the date of filing has been altered, or the name of one person has been signed by another without permission, is a forgery. Similarly, a document with a genuine signature that has been procured by fraud or trickery is generally not considered a forgery, although a few jurisdictions have held that it is.
In the absence of a contrary statute, a writing is not considered forged unless it might deceive a person of ordinary observation or prudence. Moreover, unless the legislature has prescribed otherwise, the writing must have some apparent legal efficacy in terms of private or public rights; if it is completely innocuous or void on its face, it cannot be a forgery. For example, a check that requires two signatures but has only one cannot be a forgery, even if the one signature which appears is false. In addition, because only writings are covered, the fraudulent simulation of valuable objects, as in art forgery, is nor within the traditional definition.
In forgery, the mens rea (culpable state of mind) is generally an intent to defraud, meaning a purpose to deceive or cheat another person or entity out of his or its legal due. There is no requirement that the intent involve a potential advantage to the forger, or that the fraudulent intention be successfully achieved.
Defenses and Evidence
There are three principal defenses to charges of forgery. First, a person may have, or believe he has, the authority to sign another’s name; or an alteration may be intended to correct what is genuinely believed to be an error in a document. In either event, there would be no intent to defraud, and probably no false making. Second, even if the document is clearly forged, the prosecution may not be able to prove by legally admissible evidence that the accused is the person who forged it. Finally in a surprising number of cases, it is difficult to prove that the writing is not genuine. For example, the true payee often has a motive to deny receiving and cashing a check, so that a duplicate may be issued.
The testimony of a layperson is admissible evidence to identify handwriting with which he is familiar. However, where the issue is either the identity of the forger or the genuineness of the document, an expert questioned-document examiner will often have to make comparisons between the writing at issue and known exemplars of the handwriting of both the accused and the true payee. The techniques of scientific analysis sometimes do not provide a satisfactory answer, and the prosecution consequently fails.
The knowing use of forged writings has been prohibited as a separate offense at least since ‘‘uttering or publishing as true’’ certain forged writings was made a capital crime in 1729 (An Act for the more effectual preventing and further Punishment of Forgery, Perjury, and Subornation of Perjury, 2 Geo. 2, C. 25 (1729) (Great Britain) (repealed)). Under modern statutes, uttering is usually covered in the section dealing with forgery and carries the same maximum penalty as forgery itself. Mere possession of a forged instrument is generally not a crime until an attempt is made to use (‘‘utter or publish’’) it. However, under federal law it is an offense knowingly and with fraudulent intent to transport a forged traveler’s check or ‘‘security’’ (defined to include a check) in interstate commerce (18 U.S.C. § 2314 (1999)).
One who achieves a dishonest financial advantage by the use of a forged instrument may also be convicted of fraud, false pretenses, or theft by deception. But passing a worthless check, even when accompanied by misrepresentations or intent to defraud, is regarded only as a species of theft or false pretenses, not as uttering or forgery, so long as the checking account and signature are genuine. However, if the account does not exist or if the drawee bank or maker is fictitious, several states’ laws treat the passing of the check as a separate offense or even as a form of forgery. Finally, it has often been pointed out that only a restrictive definition of writing permits any distinction to be drawn between forgery and counterfeiting.
The Future of Forgery Laws
The highly influential Model Penal Code recommended that the technical restrictions on forgery laws be abolished and that both uttering and counterfeiting be consolidated with forgery (Model Penal Code, 1962, § 224.1; 1960, commentary on § 224.1). The Code defined forgery with specificity and included unauthorized alteration of a writing. It also included the making, completing, executing, authenticating, issuing, or transferring of a writing that misrepresents its time, place, or sequence of execution, or its authority, or that purports to be a copy of which there was no genuine original. Writing was defined broadly to include all forms of recording information, money, credit cards, trademarks, and ‘‘other symbols of value, right, privilege, or identification.’’ The ‘‘purpose to defraud or injure anyone’’ was retained as an element. The offense would be graded: forgery of money, scamps, and other instruments issued by the government or representing interests in property would be a serious felony; forgery of a will, deed, contract, or other writing having legal efficacy would be a less serious felony; and any other type of forgery would be a misdemeanor. In a separate provision, the Code recommended punishing as a misdemeanor the fraudulent simulation of objects, such as art forgery, which creates a false appearance of ‘‘value because of antiquity, rarity, source, or authorship’’ (1962. § 224.2). The United States National Commission on Reform of Federal Criminal Laws made a similar set of recommendations in 1971 (§ 1751).
By 1980, at least twenty-three states had followed this lead in whole or in substantial part (Model Penal Code, 1980, commentary on § 224.1). Although some jurisdictions will undoubtedly retain a distinction between forgery and counterfeiting, more are likely to adopt the Model Penal Code’s approach.
- American Law Institute. Model Penal Code and Commentaries: Official Draft and Revised Comments, 2. Philadelphia: ALI, 1980.
- American Law Institute. Model Penal Code: Proposed Official Draft. Philadelphia: ALI. 1962.
- American Law Institute. Model Penal Code: Tentative Draft No. 11. Philadelphia: ALI. 1960.
- BAKER, JAY NEWTON. Law of Disputed and Forged Documents: Cases, Illustrations. Charlottesville, Va.: Michie Co., 1995.
- BLACKSTONE, WILLIAM. Commentaries on the Laws of England (1765–1769), 4. Reprint. University of Chicago Press, 1979.
- S. National Commission on Reform of Federal Criminal Laws. Final Report. Washington, D.C.: The Commission, 1971.
- S. National Commission on Reform of Federal Criminal Laws. Working Papers. vol. 2. Washington, D.C.: The Commission, 1970.
- WHARTON, FRANCIS. A Treatise on the Criminal Law of the UnitedStates. 2d ed. Philadelphia: James Kay, Jr. & Brother, 1852.