Since I started prosecuting in 1987, we've always attached a copy of the check alleged to have been forged to the indictments and it has been included in/on the copy of the indictment served on the inmate. Recently, a new scam has surfaced in our local jail, in which the inmates take the routing & account numbers off these check copies & are using them to transfer funds out of legitimate citizens' accounts into their own and in some cases overseas. Our initial response is to stop attaching copies of the checks to the defendant's copy of the indictment.
The question I have is, are any jurisdictions out there not attaching a copy of the check to the indictment? If not, how do you allege what it is the defendant forged? Would it be sufficient for us to simply allege something like "check # 123 on the account of victim"?
Texaner dritter Generation deutscher Abstammung
For a long time, Williamson County would scan the check and include it on the indictment, as an ideal form of notice. We stopped several years ago because of the time and energy it takes to scan the check and the issues raised by putting some of the identifying information in the public arena.
So, now we reference the bank, victim and check number. Has worked just fine.
My standard pleading for an indictment for a check forgery case is as follows:
then and there, with intent to defraud or harm another, pass to _______ a forged writing, knowing such writing to be forged, and such writing had been so completed that it purported to be the act of _______ who did not authorize the act, and said writing was a check.
Been doing it this way for 7 years and never had a motion to quash filed. Never had a forgery case go to trial either.
Thank you all very much. I will forward this to the powers-that-be and see about changing our method of charging also. One of those "it's-always-been-done-this-way" things, I reckon. I always assumed, it was required, because that's how it was set up when I arrived. Since these NEVER go to trial, nobody has ever monkeyed with the language in the charge. We had in-house authors create this stuff prior to my getting hired and I always assumed, they did it, knowing they had to, because we're all loathe to overcharge, right? Still, it never made sense to me, that we used to put the check right on the face of the indictment and then later simply attached it to save time, but we did not do it for other crimes that had some sort of documentary evidence.
Thanks again, folks! Have a Happy Thanksgiving. My family & I are headed to Flower Mound in Denton County to spend it with my brother's family.
Texaner dritter Generation deutscher Abstammung
Exellent and very useful thread!
This should be added as an option to the TDCAA charging manual, with a brief addendum explaining the concerns behind protecting this information.
Nor have I ever tried a forgery case, other than once in an MRP/MAG proceeding as a condition one violation, and that was this week.
And Happy Thanksgiving, Ya'll!
Is there new case law that says we DO NOT have to put a copy of the check on the indictment or was there ever any case law requiring the copy of the check on the indictment? I love the idea about not having the check on there as does the support staff, just need something to back it up with the local defense bar.
I've never seen a law requiring that a copy of the check be made part of the indictment. In fact, there are some old cases (since overruled) that held that variances between the copies of the checks in the indictment and the check as passed--such as a "FORGERY" stamp placed on the check by the bank--were fatal variances. This is no longer the case, but at least in those cases the courts were clearly indicating that the indictments should have described the checks without photocopying them, since the photocopies no longer described accurately the passed instrument.
As long as you can describe it with enough specificity to notify the defense of what he is charged with forging, you should be fine whether a copy is included or not.
Thanks, that is what I was thinking, and found the cases that other info on the check was not a fatal variance. But I could not find anything(did not look a long time) about requiring a copy of the check on the indictment. Not putting the copy on the indictment would help out the staff a lot.
Under 32.21 of the prose manual we have, 1.a reads "then and there, with intent to defraud or harm another, [alter or make...] a writing so it purported to be the act of [victim], who did not authorize the act, and said writing was a [check] of the tenor following: _______.
What is "tenor"? Does that refer to the amount written on the check?
Or is that what this whole discussion is about?
What difference does it make? Presumably you would have to turn over copies of the checks to the defendant during discovery anyways. So the information would get out, right?
I could not find any cases right on point, but under the rationale of Kellar v State, 108 S.W.3d 311 (CCA 2003); see also Moff v. State, 154 S.W.3d 599 (CCA 2004). As long as the specificity in the indictment revealed enough information to inform the defendant of the transaction that would be sufficient notice. Although Kellar's ultimate decision rested on the fact that the State did turn it over during discovery, the Kellar indictment was overly broad. Applying the standards for due process notice requirements it seems that the information JB lists is adequate. As a precaution one could always include the actual copies of the checks in discovery. I do not think including the check copies in discovery would cause the same problems unless the defendant was pro se.
That's what this whole discussion is about: tenor in this context refers to can be defined as either "the drift of something spoken or written" or "an exact copy of a writing" according to Merriam-Webster. The question is how exactly does the writing have to be set out to satisfy the notice requirements of an indictment.
A forgery by check indictment withhout the check is sufficient unless the defense files a motion to quash and successfully contends there is improper notice. If so, the indictment could be amended to add whatever is necessary. If the motion is overruled, the defense would have to show harm to prevail on appeal.
This issue came up in a Motion to Quash in our jurisdiction recently. The case I found says we do need to include a copy of the check in the indictment: Martinez v. Texas, 742 S.W.2d 687 (Tex. Cr. App. 1987). When you Shepardize the headnote on the necessity of a copy of the check, there is no negative treatment (or more recent treatment) on that issue.
However, as posted above, we argued that the defendant has sufficient notice of the charges against her, and protection against later prosecution for the same crime, with a specific description of the checks alleged to have been forged: check number, name on account, bank backing the check, account number, and amount of the check. Ex Parte Davis, 642 S.W.2d 179 (Tex. Cr. App. 1982) found an information fundamentally defective for failure to describe the allegedly forged instrument (indictment referenced an attached document that was not attached, nor was the document described). So, we argued that the issue in Davis is that the defendant had insufficient notice of the document alleged to have been forged, which is cured by a more specific description of the alleged instrument.
We also argued the security rationale for not including the check image in the indictment.
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