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86.2 Bad Checks

    86.2.3 Bad Checks: Defenses And Defense Theories

    86.2.3.1 Bad Checks: Defense Theory That Payee Was Informed Of Insufficient Funds
    86.2.3.2 Bad Checks: Defense Theory Of "Ongoing" Understanding Of Insufficient Funds
    86.2.3.3 Bad Checks: Defense Theory That Payee Knew Or Had Reason To Believe There Were Insufficient Funds
    86.2.3.4 Bad Checks: Mistake As Defense Theory
    86.2.3.5 Bad Checks: Defense Theory That Defendant Acted Under Orders Of Superior Without Deriving Personal Benefit
    86.2.3.6 Bad Checks: Additional Defenses And Defense Theories

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    86.2.3.1    Bad Checks: Defense Theory That Payee Was Informed Of Insufficient Funds

PRACTICE NOTE: It is a defense to charge of writing a bad check that the defendant informed the payee of the insufficient funds. (People v. Poyet (CA 1972) 6 C3d 530, 536-37 [99 CR 758]; see also Rigaud v. State (FL 1981) 404 So2d 791, 792; People v. Cundiff (NC 1973) 305 NE2d 735, 737; State v. Crawford (NC 1930) 198 NC 522, 505 [post dated check as defense].) Hence, the jury should be instructed on this defense theory when appropriate. (People v. Meller (CO 1974) 524 P2d 1366, 1367 [failure to instruct jury on theory offered by defense that defendant charged with issuing a short check did not have specific intent to defraud payee as evidenced by an alleged postdating of check and a request to payee to hold check until advised to cash same was plain error].)

RESEARCH NOTES:

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

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    86.2.3.2    Bad Checks: Defense Theory Of "Ongoing" Understanding Of Insufficient Funds

PRACTICE NOTE: It may be a defense to a charge of writing a bad check that the check was issued pursuant to an "ongoing understanding" that there would not be sufficient funds when the check was written. (See e.g., People v. Wolfe (CA 1991) 235 CA3d 605, 608, 611-12 [1 CR2d 400]; but see State v. Harris (TN 1998) 977 SW2d 127, 130 [knowledge of a lack of sufficient funds could not be inferred based on the prior relationship between the parties].)

    See FORECITE National™ 252.10 [Innocent Intent, Good Faith].

RESEARCH NOTES:

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

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PRACTICE NOTE: Fraud is the gravamen of the offense proscribed by the typical bad check statute. (See e.g. State v. Orth (VA 1987) 359 SE2d 136, 139; State v. McGinnis (WV 1935) 181 SE 820.)   "When the payee or holder accepting a check knows there are not sufficient funds on deposit, he cannot be the victim of fraud and, thus, no offense is committed." (State v. Orth at 137.)

    A similar defense theory should be available when the person receiving the check has reason to believe that sufficient funds are not on deposit. (Ibid.) For example, cashing a check at one's own bank does not normally form the basis for a conviction, even though the bank employee accepting the check does not have actual knowledge of the insufficiency. (See e.g., 32 Am.Jur.2d False Pretenses § 81 (1982); see also State v. Mullin (IA 1975) 225 NW2d 305, 308; see also State v. Creachbaum (OH 1970) 263 NE2d 675, 976 [bank had knowledge that "something was going on"].) "The injured party in cases of this nature cannot be defrauded by any representation made of a fact he knows or could have known by the exercise of ordinary prudence in using the means at hand to detect the true condition of the account." (Deitle v. State (TX 1963) 363 SW2d 939, 940; see also State v. Orth (VA 1987) 359 SE2d 136, 139.)

RESEARCH NOTES:

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

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RATIONALE: If a bad check charge involves a requirement of an intent to defraud then the defendant's honest mistake as to the amount of money in the account may be a defense theory upon which instruction should be given.

POINTS AND AUTHORITIES: Fraud is the gravamen of a charge of writing a bad check. (See e.g., State v. McGinnis (WV 1935) 181 SE 820; see also FORECITE National™ 86.2.3.3 [Bad Checks: Defense Theory That Payee Knew Or Had Reason To Believe There Were Insufficient Funds].) Hence, the defendant's knowledge of the lack of funds on deposit and intent to defraud should be an element of the charge. (See e.g., People v. Reynolds (MI 1982) 332 NW2d 451, 453.) Accordingly, mistake as to the status of the account should negate this essential element of the charge. (See generally FORECITE National™ 252.8 [Mistake Of Fact].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

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

    There is no intent to defraud anyone if the defendant wrote a bad check due to an honest mistake about how much money the defendant had in [his] [her] account.

    If, after consideration of all the evidence, including the evidence of mistake, you have a reasonable doubt that the defendant had an intent to defraud when the check was written you must give the defendant the benefit of that doubt and vote to find (him/her) not guilty.

[See People v. Reynolds (MI 1982) 332 NW2d 451, 453; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 29.3 [Mistake] (ICLE, 2nd ed. 1999).]

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PRACTICE NOTE: An employee who draws a bad check pursuant to orders of a superior and without deriving personal benefit is not guilty of writing bad checks. (Robinson, Criminal Law Defenses (West, 1984) § 109(h) pp. 550-51.)

RESEARCH NOTES:

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

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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).)