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 VOLUME 7 - CHAPTER 86
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86.2 Bad Checks

    86.2.2 Bad Checks: Miscellaneous Issues

    86.2.2.1 Bad Checks: Constitutional Challenge To Statutory Presumptions
    86.2.2.2 Bad Checks: Post-Dated Check Requires Determination Of Intent On Date Goods Were Received
    86.2.2.3 Bad Checks: Post-Dated Check Does Not Violate Statute That Requires Intent To Defraud When Check Is Written

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PRACTICE NOTE: Some jurisdictions include statutory presumptions regarding bad check charges. For example, South Dakota provides that the passing of a check as prohibited by the statute is prima facie evidence that the person who passed it had knowledge of insufficient funds in the account on which the check was drawn and that the passing of a check that bears the name and address of an account holder and bears a signature purporting to be that of the account holder is prima facie evidence that the holder executed the check. (SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-12-5 [Insufficient Funds Check-Prima Facie Evidence] (State Bar of South Dakota, 1996).) However, the Committee comments caution that these presumptions may improperly shift the burden from the prosecution to the defendant in violation of federal constitutional principles enunciated in Connecticut v. Johnson (1983) 460 US 73, 84 [103 SCt 969; 74 LEd2d 823] and Sandstrom v. Montana (1979) 442 US 510, 513-24 [99 SCt 2450; 61 LEd2d 39].

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.1 [Bad Checks].

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PRACTICE NOTE: Where the checks the defendant wrote to procure the stolen goods were post-dated, the jury should be instructed to determine the defendant's intent to defraud as of the date the goods were received, not the date the check was written. (See e.g., Rice v. Commonwealth (KY 1981) 621 SW2d 911, 914; see also Owsley v. Commonwealth (KY 1981) 621 SW2d 21 [if victim knew there were insufficient funds to cover the check, there was no deception and the check should have been treated as a post-dated check].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.1 [Bad Checks].

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 VOLUME 7 - CHAPTER 86

PRACTICE NOTE: A post-dated check carries on its face implied notice that there is not sufficient money presently on deposit from which check can be drawn. (See State v. Papillon (NE 1986) 389 NW2d 553, 555; see also State v. Hogrefe (IA 1996) 557 NW2d 871, 875-76 [surrounding circumstances must be considered to determine whether defendant intended to deceive by presenting a post dated check].) Therefore, such a postdated check cannot constitute a violation a of statute which requires an intent to defraud at the time the check is issued. (Ibid.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.1 [Bad Checks].