Authenticating the Unauthentic: What forgery is and what it isn't in Iowa

This check appears to be drawn on an account of the Standard Bank of South Africa

on July 10, 1933. It is believed to be an image unprotected by copyright because the

copyright has apparently expired. The image is available at http://en.wikipedia.org/wiki/Cheque

A forgery in Iowa is the presentation with the intent to defraud some writing that is not what it purports to be. Now that’s fancy language but that’s pretty much how the statute reads at Iowa Code § 715A:

A person is guilty of forgery if,with intent to defraud or

injure anyone, or with knowledge that the person is facilitating a fraud or injury to be perpetrated by anyone, the person does any of the following:

a.       Alters a writing of another without the other's permission.

b.      Makes, completes, executes, authenticates, issues, or transfers a writing so that it purports to be the act of another who did not authorize that act, or so that it purports to have been executed at a time or place or in a numbered sequence other than was in fact the case, or so that it purports to be a copy of an original when no such original existed.

c.       Utters a writing which the person knows to be forged in a manner specified in paragraph "a" or "b".

d.      Possesses a writing which the person knows to be forged in a manner specified in paragraph “a” or “b”.

The Iowa Supreme Court has said that the focus is on the “genuineness” or “authenticity” of the writing. Whether an alleged crime is a “forgery” (instead of no crime at all or possibly a different kind of crime, for example, theft by misrepresentation) hinges on “whether the act affects the genuineness of the instrument.” State v. Calhoun, 618 N.W.2d 337, 339 (Iowa 2000)

But the inquiry doesn’t end there. What if the writing is what it purports to be? For example, a genuine social security card held by someone else posing as that person?

In an unpublished decision, the Iowa Court of Appeals held that a criminal charge that alleges the possession of an authentic social security card by someone else is not forgery if the State fails to craft its trial information in such a way to assail the genuineness or authenticity of the card itself. State v. Hampton, 2008 Iowa App. LEXIS 451, 5 (Iowa Ct. App. July 16, 2008).

The Hampton court wrote, “[t]hese facts could implicate the crime of identity theft but they do not implicate the crime of forgery.” Hampton, 2008 Iowa App. LEXIS 451 at 6.

The specific intent to defraud is also an area to examine. Where forgery requires specific intent to defraud, the jury must specifically find that the defendant intended to defraud someone or some institution. It differs from general intent in that a jury need not delve into the merits of the thought process of a general intent crime; if someone did that general crime the general intent may be inferred from the act.

The jury instruction regarding specific intent is instructive:

'"Specific intent' means not only being aware of doing an act and doing it voluntarily, but in addition, doing it with a specific purpose in mind.

Because determining the defendant's specific intent requires you to decide what [he] [she] was thinking when an act was done, it is seldom capable of direct proof.  Therefore, you should consider the facts and circumstances surrounding the act to determine the defendant's specific intent.  You may, but are not required to, conclude a person intends the natural results of [his] [her] acts."

 In a forgery, for example, the specific intent may not simply be found by the act of forgery. The jury must look beyond the act and determine if the defendant's purpose was to defraud.

It's an interesting question. Because every case is different, it is important to look at whether the State has sufficiently charged a forgery with the focus on the genuineness or inauthenticity of the document in question-- or whether it has misapplied the forgery statute. It is also wise to scrutinize whether the defendant possessed the requisite specific intent to defraud at the time of the alleged act.

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