Forgery involves the making, altering, use, or possession of a false writing in order to commit a fraud. It can occur in many forms, from signing another person's name on a check to falsifying one's own academic transcript. When the subject of forgery is currency, it is also called counterfeiting. Forgery (also known as "uttering a false instrument") is a serious offense, punishable as a felony in all 50 states and by the federal government.
Our society relies heavily on the ability to produce and exchange legitimate and trustworthy documents. Forged documents can have serious and far-reaching negative consequences on businesses, individuals, and political entities, which is a prime reason for imposing serious penalties for this offense.
Traditionally, the crime of forgery consisted only of making or altering a false writing. Possessing, using, or offering a false writing with the intent to defraud was a separate offense, known as "uttering a forged instrument." For example, if someone used a false identification card in order to obtain a line of credit, they'd be guilty of uttering a forged instrument, even if he did not actually make the false ID card.
Today, some states refer to all of these acts as simply forgery. Other states separate acts of making or altering, uttering, and possessing forged instruments into two or more crimes, as discussed below.
To convict someone of forgery, the prosecutor must prove all the elements of the crime beyond a reasonable doubt. A person can commit forgery by:
The common elements of these two crimes include a forged instrument and fraudulent intent.
Not all writings meet the definition of forgery. To serve as the basis for forgery charges, the writing in question must have a legal significance and be false.
Apparent legal significance. In order to be punishable as forgery, the writing in question must have apparent legal significance. Examples include government-issued documents, such as driver's licenses and passports; transactional documents, such as deeds, conveyances, and receipts; financial instruments, such as currencies, checks, or stock certificates; and other documents, such as wills, patents, medical prescriptions, and works of art.
Affect legal rights. A document need not necessarily be a legal or government-issued document—it must simply affect legal rights and obligations. For this reason, documents such as letters of recommendation or notes from physicians may also be the subjects of forgery. In contrast, signing another person's name in a letter to a friend would probably not constitute forgery because, in most cases, it would not have legal significance.
Be a false writing. To be considered false, the writing itself must be fabricated or materially altered so that it purports to be or represent something that it is actually not. Generally, simply inserting false statements into a writing is not enough to meet this requirement, if those misrepresentations do not change the fundamental meaning of the writing itself. For example, if you insert a false statement into a letter you wrote, you have not committed forgery. However, it is forgery if you write a letter of legal significance but present it as a letter written by someone else.
Forgery also requires proof that the defendant intended to defraud someone or some entity, such as a government agency (though the fraud need not have been completed). Fraud involves a knowing misrepresentation or a lie used to gain a benefit. Requiring the element of fraud prevents subjecting innocent people to criminal liability for forgery when they don't knowingly possess or sign fraudulent documents. For instance, if you purchase a used car but later find out that the title to the car was forged by the seller, you would not be subject to forgery charges for the possession of the forged title because you had no intent to defraud.
Many states divide forgery crimes into two categories: making, altering, and using forged instruments and possessing forged instruments.
When people think of forgery, many think only of making false writings, such as forging letters or certificates. But altering an existing writing can also be forgery if the alteration is "material" or affects a legal right. For example, forging another person's signature on a document is a material alteration because it misrepresents the identity of the person who signed the document, which has serious legal consequences.
Deleting, adding, or changing significant portions of documents may also be "material" alterations if these changes affect the legal rights or obligations represented in the documents. Additionally, as discussed above, using false writings may also constitute forgery, although in some jurisdictions this is known as "uttering a forged instrument."
It's also a crime to knowingly possess a forged instrument with the intent to defraud, deceive, or injure another. To be convicted, the prosecutor must prove both knowledge and intent on the part of the defendant. A person who unwittingly has a fake $20 bill in their wallet hasn't committed a crime. It's only a crime if the prosecutor proves the person knew the bill was a fake and intended to defraud another, say by using it to purchase merchandise at a store.
In most instances, penalties for making, altering, and using forged instruments will be harsher than those for possession of forged instruments, especially if the crime resulted in a loss to a victim.
Many states focus on the type of documents at issue when determining the applicable punishment for forgery, while others may look to the amount of harm done. Many states divide forgery offenses into degrees with penalties ranging from misdemeanors to serious felonies.
The harshest felony penalties typically apply when the forged instruments are currency, securities, stocks, or bonds or the crime resulted in a loss of thousands of dollars. It may also be a felony when forgery involves deeds, government-issued documents, public records, or medical prescriptions. Misdemeanor penalties may apply when forgery involves documents other than those described above or the crime resulted in no loss or a loss of a few hundred dollars.
Felony penalties can range from a few years to a couple of decades in prison, plus steep fines. In most states, a misdemeanor carries a year or less of jail time and fines. For any conviction level, a judge will order a defendant to pay restitution to compensate a victim for any losses resulting from the crime.
Although forgery is most commonly prosecuted at the state level, certain types of forgery are also considered felonies under federal law. For example, identity theft—a type of forgery wherein a person forges a writing in order to assume the identity of another—is a felony under federal law. Federal law also prohibits other types of forgery, such as counterfeiting money; forging federal documents like immigration documents or military discharge certificates; or forgery intended to defraud the federal government. Forgery also automatically becomes a federal offense if a forged document is carried or mailed across interstate lines or if the forgery occurs in multiple states.
If you are charged with forgery, consider consulting a local criminal defense attorney as early as possible in your case. An experienced attorney can help you understand the laws governing forgery in your state, evaluate the strength of the evidence against you, counsel you on defenses you may raise, explain your options and the possible outcomes of each, and protect your rights.