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 fifty 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. This is why forgery is punished harshly.
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, he would be guilty of uttering a forged instrument, even if he did not actually make the false ID card. Today, most states treat both offenses as the single crime of forgery.
To secure a conviction of forgery, the prosecution must prove several elements or factors, including the following.
The first element of forgery is that a person must make, alter, use, or possess a false writing. When they think of forgery, many people 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 or possessing false writings also constitutes forgery, although in some jurisdictions this is known as "uttering a forged instrument."
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, as discussed below.
Apparent legal significance. In order to be punishable as forgery, the writing in question must have apparent legal significance. This includes government-issued documents, such as drivers' 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.
To have legal significance, 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 to 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.
In order to be guilty of forgery, the defendant must have intended to defraud someone or some entity, such as a government agency (though the fraud need not have been completed). This element prevents people who possess or sign fraudulent documents, without knowing that the documents are false, from being subject to criminal liability. 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.
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, punishable by a fine and many years' imprisonment. 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.
Forgery is considered a felony in all fifty states and is punishable by a range of penalties including jail or prison time, significant fines, probation, and restitution (compensating the victim for money or goods stolen as a result of the forgery). Some states, however, consider certain types of forgery misdemeanor offenses, which are punished more leniently than felony offenses (with a maximum incarceration period of one year in most states).
State laws provide a wide range of penalties for forgery crimes, so judges can determine the most appropriate punishment for a given crime. For example, in Oregon, the penalties for forgery range from probation and community service (for a misdemeanor forgery offense) to prison time of five years and a fine of $125,000 (for a felony forgery offense). In Minnesota, penalties for check forgery vary according to the amount of money at stake. Forging checks of $250 or less is punishable by up to one year in jail and a $3,000 fine, but when the amount of the check exceeds $250, the penalty increases to up to five years in prison and a $10,000 fine.
Many states focus on the type of documents at issue when determining the applicable punishment. In New York, for example, a forgery is classified as “first-degree forgery” when the forged instrument is currency, securities, stocks, or bonds. Second-degree forgery involves deeds, government-issued documents, public records, or medical prescriptions. Third-degree forgery involves any other types of documents. Both first and second-degree forgeries are felonies, while third-degree forgery is a misdemeanor.
Learn about the different types of fraud by reading Fraud Charges and Penalties.
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.