27 Jul 23

Defenses to Criminal Possession of a Forged Instrument

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Last Updated on: 9th August 2023, 01:21 am

Today, it is becoming harder and harder for lawmakers and the technology alike to keep up to speed with ways in which criminals commit white collar criminalities. These days, lawbreakers use whatever they can lay their hands on such as a check, websites, credit cards and much more to perpetuate crime. They use this to get people vital information which they use inappropriately or even extort money from them.

Information is documented and exchanged in a different manner across the world. Therefore, lawmakers in most states have come up with legal terms which account for most documents technologies and avenues whereby a victim’s financial or personal information is recorded. Nonetheless, these tactics may change with time.

Today, criminal possession of forged instruments is a felony. It covers quite a lot of fields too. However, it enables lawmakers to communicate about a specific case without even diving into the specifics.

What does the term criminal possession of forged instruments mean?

In most states today, being in possession of a forged instrument with the intent of defrauding, injuring a person or even deceiving is a crime and is punishable. Under various circumstances, this crime is charged as an offense. Creating a false instrument, otherwise known as forgery is in itself a separate crime. In many states, forged instruments may include, but not limited to

• Credit cards, checks

• Promissory notes

• Money orders

• Driving license

• Securities

• Tiles

• Bonds

• Currencies

• Deeds

• Computer data

There are three degrees of the crime involving being in possession of a forged instrument.

  1. There is the first degree which being in possession of fake money; government-issued security, stamps, bonds, corporate stocks or other corporate instruments
  2. The second degree includes being in possession of forged wills, deeds, contracts, credit cards, commercial instruments, public records that need to be filled with a public entity, being in possession of official government documents.
  3. The third degree is being in possession of fake written instruments.

What are the consequences of being in possession of a forged instrument?

In New York for instance, when one is arrested for being in possession of a forged instrument, they face felony charges. Here, this crime is under class D felony.

When you are convicted and do not have a previous criminal record, you will face up to seven years behind bars. Aggravating factors such as a prior criminal record or any other associated charge will see that you’re charged more than the above sentence of seven years. Therefore, there is a strong need for people accused of this offense to find a strong defense lawyer for forged instruments.

What is being charged with possessing forged instruments with knowledge?

This may also differ from a state to the other. However, to take a case of Kentucky for instance, a prosecutor must prove to the court that you were actually caught with a forged instrument knowingly that is a forged instrument. The defendant who unsuspectingly accepts forged money has not broken this law.

With the intent to defraud or injure someone

Like discussed above, if you are in possession of a fake dollar bill in Kentucky without your knowledge, this is not a crime. If someone gives you a fake currency as a gift or a gag, you are not at risk. The problem is when you knowingly try to pass it over as a real currency to buy anything or better still benefit from it. In Kentucky, it is not a crime of being in possession of any false instrument unless you intend to injure someone with it, deceive or defraud someone.


It is a crime if you, for example, have it in your wallet among your other genuine cash. If you are flagged down by police for overspending, and accidentally they spy a fake note in your wallet among other cards such as your driver’s license, they may arrest and charge you on suspicion that you are in possession of the fake instrument.

Having it with you along with other genuine documents and cash may strongly suggest that you had the intent of using it in illegal ways. Passing it off to an unsuspicious trader would demonstrate that you had the intention of defrauding or deceiving them. The prosecutor, therefore, will have to prove to the court that you knew that you were carrying the forged instrument and beyond any shadow of a doubt use it to benefit yourself.

Possession of a forged instrument is either a felony (in the first or second degree) or a misdemeanor (in the third degree). New York law indicates, ” A person is guilty of criminal possession of a forged instrument in the first degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.15.”

That looks pretty straightforward and clear, but it’s actually not that simple. There are a variety of defenses that could be mounted if you’ve been charged with criminal possession of a forged instrument.

Intent to defraud

Prosecutors must prove that you had an intent to defraud with the forged instrument. Intent to defraud is established when you intend to lead another into error or create a disadvantage. Proving intent to defraud is easier if you were caught trying to pass a fake check than if you had that fake check in your wallet or purse, but even then, it is not a certainty. If there was no intent to defraud, then this may be a good defense. Your lawyer can help you determine whether this is a good place to start.

Knowledge that it was a forgery

Even if all appearances indicate intent to defraud, there may be other factors at play. Perhaps you had or believed you had permission to sign another person’s name. Maybe you received the instrument from someone else in good faith and truly had no idea it was forged. Some forgeries are not readily apparent to the average citizen, and that may be your defense.

Perhaps you had a couple of fake $20 bills that you tried to pass. Did you only pass the forgeries, or did you also pass real bills? Did you recently visit an ATM or bank, or get change back at a store? What is the quality of the fake bills? If the quality is quite good, you can argue that you didn’t know they were fake.

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Was it a forged instrument or not?

The item that is forged must be a written instrument. But what, exactly, does that mean? Does it have to be a check? A counterfeit $20? Fake driver’s license or passport? There are a multitude of items that can count as a “written instrument” and New York law is very broad about what counts for the purposes of this charge.

A few examples of forged instruments are:
-A check made in the name of a fictitious person
-A driver’s license with an altered date of birth
-A fake driver’s license with entirely false information
-A fake credit or debit card
-A passport made in the name of a fictitious person
-A check signed by someone other than the named person without their consent
-A passport in the name of a real person but with the photo of another person
-Counterfeit cash
-An invoice for fake goods or services

While all of these things are forged instruments, having one of them in your possession does not necessarily equal a charge for criminal possession of a forged instrument. It’s worth exploring with your lawyer whether the instrument you had counts.

How many instruments did you have?

It is much easier to defend against this charge if you have a single counterfeit $20 bill among a dozen legitimate ones, than if you have half a dozen fake credit or debit cards. New York law says that if you have at least two forged debit or credit cards, the judge can instruct the jury that they may legally conclude you knew they were forged and that you possessed them with the intent to deceive or defraud. Obviously, this makes your defense much harder. This is why it is critical to have a good lawyer who can help you.

How were the instruments found?

If you attempted to pass the forged instruments, and were subsequently arrested, you may not have a defense here. But if you were searched by police after being stopped for another reason, you may be able to claim an illegal search. This is something that you would definitely need to discuss thoroughly with your lawyer.

However the charge came about, it’s important to discuss the details of the situation in full with your lawyer. They can only mount the best defense if they know everything. Remember that what you tell your lawyer remains between you and your lawyer. Be completely honest and open, and heed your lawyer’s advice.