FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 86
Go to Volume 7 Table of Contents - Go to Chapter 86 Table of Contents

86.1 Forgery

    86.1.3 Forgery: Defenses And Defense Theories

    86.1.3.1 Forgery: Requirement Of Intent To Defraud
    86.1.3.2 Forgery: Defense Theory That Document Was Genuine Even If It Contained False Statements
    86.1.3.3 Forgery: Defense Theory That Document Could Not Operate To Prejudice Another
    86.1.3.4 Forgery: Additional Defenses And Defense Theories

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 86

PRACTICE NOTE: Intent to defraud is an essential element of forgery. (Wharton’s Criminal Law (West, 15th ed. 1993) § 477, pp. 72-73.) However, actual deception of the victim or financial gain by the defendant is not required. (Ibid.)

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 86

    86.1.3.2   Forgery: Defense Theory That Document Was Genuine Even If It Contained False Statements                                

PRACTICE NOTE: Common law forgery should be contrasted with common law false pretense. For the crime of false pretense, a person must use a false representation, that is, a lie. Forgery also involves a lie, but the lie concerns the genuineness of the document -- not what is stated in the document. (See OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 5-64, comments [Evidence Of Debt-Elements] (Oklahoma Center for Criminal Justice, 2nd ed. 1996); Schulte v. State (OK 1928) 271 P 1045, 1048 [unauthorized signature of valid document does not constitute forgery but may constitute false pretense]; State v. Esquivel (WA 1993) 863 P2d 113, 114; Wharton’s Criminal Law (West, 15th ed. 1993) § 487, p. 85; see also De Rose v. People (CO 1918) 171 P 359, 360 ["This writing is what it purports to be: a true and genuine instrument, although it contains false statements. It is not a false paper, and the execution of such a document does not constitute forgery....A false statement of fact in an instrument, which is itself genuine, by which another person is deceived and defrauded, is not forgery"].)

    "A document is not considered false for purposes of the law of forgery merely because it contains a false statement of fact. The falsity required by the common law and the statutes refers to the genuineness of the execution of the document itself; that is, there must be a false making. [Citations.] The instrument must purport to be what it is not. [Citation.] As one scholar has phrased it, it is not enough that the writing 'tells a lie; the writing itself must be a lie.' [Citation.]" (State v. Reese (MD 1978) 388 A2d 122, 128.)

    For example, it is not "classic" forgery for the county treasurer to make incorrect entries into the records in his office because the records are genuine even though the entries are false. (Perkins & Boyce, Criminal Law (Foundation Press, 1982) p. 415; see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 5-88, comments. [Falsifying By Keeping False Account-Elements] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).)

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 86

PRACTICE NOTE: A person cannot be convicted of forgery if the document is invalid on its face and could not operate to prejudice another person. (See State v. Smith (MD 1969) 256 A2d 357, 360 [check without payee’s name, signature, date or amount].)

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 86

PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)