Ok, someone has to have dealt with this already.

Criminal steals a check. Then he goes to Walmart and writes the check for a new $800.00 color tv. Walmart then runs the check through their Telecheck system - debits victim's account and returns check to defendant.

I have video but I do not have a cancelled check or any "forged writing" which I can attach to my indictment. Am I stuck with just charging this guy with a misd. all because modern technology and the law haven't caught up with each other?

I'm not sure if this applies to your situation but under the federal Check 21 Act substitute checks are subject to existing federal and state check laws.

Alex, please resist the temptation to throw out lay suggestions. This is a legal forum for lawyers.

The account number on the check is Identifying Information. I would file it as 32.51 Fraudulent Use/Possession of Identifying information. SJF

Many, many years ago I had a similar situation. The defendant passed a forged check at the drive thru at a local bank, and for some reason, the teller returned the check to him after they advised him they couldn't cash it. I did some research and found that I could put together a similar or substitute check to represent the actual check that was passed and the defendant was convicted. I don't remember the case cites because when I say it was many years ago, I'm talking back in the 80's.

Doesn't the store, when running the check through the system, make a copy? Can you get a printout of the copy?

We, long ago, stopped attaching a copy of the check. While that was a simple way to give notice, simple reference to the information contained in the check is sufficient.

On the other hand, why be a collection agency for a store that doesn't exercise diligence in assisting law enforcement by retention of the criminal instrument?

Walmart's terminal simply pulls the check number, account number and bank routing information off of the magnetic printing on the check. No copy is made of the check and for that matter no signature is required on the check (although it is a violation of store policy). The funds are then debited from the victims account by Electronic Funds Transfer (EFT). Walmart does not have an image of the check, nor does the victim's bank. At least that is the way it works here. The fraudulent use of the identifying information is recorded by the time of the transaction and with a little luck that will match the video.

For a prior thread on this, click here.