It is a funny name for a crime but make no mistake that there are serious consequences for committing uttering and publishing in Michigan. Michigan’s Model Criminal Jury Instructions state that “[t]o utter and publish means to offer something as if is real, whether or not anyone accepts it as real”. MCrim JI 22.22. One of the most common scenarios for uttering and publishing charges is an individual attempting to present a fraudulent check to another individual, business or financial institution to get payment. The individual must know it is forged or altered, but he or she does not necessarily have to be the creator of the fraudulent document (this makes the crime distinct from forgery).
The “document” subject to an uttering and publishing conviction MUST be a document referenced in the forgery statute (MCL 750.248) and are as follows:
- A public record
- A certificate, return or attestation of a clerk of a court, register of deeds, notary public, township clerk or any other public officer in relation to a matter where said certificate, return or attestation may be received as legal proof
- A charter, will, testament, bond, writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange, or promissory note
- An order or an acquittance of discharge for money or other property
- A waiver, release, claim or demand
- An acceptance of a bill of exchange, or indorsement, or assignment of a bill or exchange or promissory note for the payment of money
- An accountable receipt for money, goods, or other property
- A financial transaction device (e.g. credit card, debit card)
- A deed, a discharge of mortgage or a power or letter of attorney or other document that affects an interest in real estate
The courts tend to interpret the documents to be covered under the uttering and publishing statute liberally. In People v Carter, 106 Mich App 765; 309 NW2d 33 (1981), a conviction for uttering and publishing was upheld for the presentation of a forged license to purchase a pistol despite not being a listed document because it could be encompassed under a public record.
To prove the crime of uttering and publishing according to MCL 750.249, the prosecutor must present evidence of all the following beyond a reasonable doubt:
- First, that the document in question was false, altered, forged and counterfeited.
- It doesn’t matter if the document was an original or a photocopy of the original. In People v Cassadime, 258 Mich App 395; 671 NW2d 559 (2003), the Court of Appeals upheld a conviction of uttering and publishing for a defendant who presented a photocopy of a fraudulent nursing license to a potential employer for the purposes of obtaining employment rather than the original document.
- It doesn’t matter if the document fraudulently obtained is valid on its face. In People v Aguwa, 245 Mich App 1; 626 NW2d 176 (2001), the Court of Appeals upheld a conviction of uttering and publishing for a defendant who obtained gift certificates using another person’s identity and stolen credit card. The defendant argued that it was irrelevant how the gift certificates were obtained for uttering and publishing purposes if they were transactable. The Court of Appeals determined that argument defeated the “spirit and purpose” of the statute and the procurement of gift certificates by fraudulent means was uttering and publishing once they were used.
- Second, that the individual represented, either by words or actions or both, that the document was genuine or true and he exhibited, offered or presented it.
- The document must actually be presented to a third party. In People v. Hammond, 161 Mich App 719; 411 NW2d 837 (1987), the Court of Appeals upheld the denial of uttering and publishing charges where, although the defendant created fraudulent invoices, there was no evidence that he actually presented them to anyone for payment.
- It does not matter if the person intended to be cheated did not accept the presentment for payment. In People v Fudge, 66 Mich App 625; 239 NW2d 686 (1976) the Court of Appeals upheld a conviction of uttering and publishing where the defendant brought a fraudulent payroll check to a store and showed it to the clerk, but he left the store and the payroll check behind without actually endorsing it or presenting it for payment. Even though presentment could not be completed without endorsement, the defendant did intend to present the document to the clerk as good and valid.
- Third, that the individual did this knowing that the document was false, altered, forged or counterfeited.
- Stealing the document for use, even if it was not actually forged or altered or counterfeited, is enough for knowledge when the defendant knew he or she was not authorized to use the document. In People v Buchanan, 107 Mich App 648; 309 NW2d 691 (1981), the Court of Appeals upheld a conviction for uttering and publishing where the defendant stole a money order and transacted it for payment without authorization from the owner even though he did not technically forge or alter the document.
- It doesn’t matter if the document is not actually a forgery. In People v Hogan, 225 Mich App 431; 571 NW2d 737 (1997), the Court of Appeals upheld a conviction of uttering and publishing where a defendant did not actually forge the name of a real person on a check but rather opened a checking account under a fictitious person’s name and transacted business under that identity. Despite the lack of forgery, the Court of Appeals determined it was enough that the defendant knew it was a false document he offered.
- Fourth, that when the individual did this, he or she intended to defraud or cheat someone.
- The prosecutor is not required to show an actual monetary loss. In People v Hester, 24 Mich App 475; 180 NW2d 360 (1970), the Court of Appeals upheld a conviction for uttering and publishing where the document in question was a credit slip. Even though the credit slip itself would not create a transfer of money itself if transacted, it would have created a financial obligation on the acceptor and therefore constitute a document intended to be covered under the statute.
- The intent to defraud can be inferred from circumstantial evidence. In People v Hawkins, 245 Mich App 439; 628 NW2d 105 (2001), the defendant was convicted of uttering and publishing despite his claim that the check was given to him by a friend and he lacked the knowledge that it was false, forged, altered or counterfeit. Another witness at the trial testified that she told the defendant that she was suspicious about the check but he went to the bank anyway. The Court of Appeals determined that, even if the defendant obtained the check legitimately and even if he lacked the requisite knowledge, the trial court was entitled to determine from the circumstances and evidence that the defendant knew the check was not genuine when he presented it.
Uttering and publishing is a felony in the State of Michigan punishable by up to 14 years in state prison. Despite the high maximum sentence, the crime is considered a Class E Felony under the Michigan sentence guidelines and most actual sentences do not come close to the ceiling, but people can and do go to jail or prison for this offense. Often, the convicted individual is liable to the victim to repay restitution for any money actually defrauded by the false instrument.
Even if the ultimate criminal penalty is not severe, a person convicted of uttering and publishing will forever have a “crime of dishonesty” on his or her permanent criminal record. This type of conviction makes it very difficult to get employment in a position involving finances or handling money (if it wasn’t already difficult enough to get a job with a felony record). Additionally, a “crime of dishonesty” can be used to impeach a witness’s credibility if they testified at a trial or hearing in the future pursuant to Michigan Rule of Evidence 609(a)(1). If said person was charged with a crime in the future and he or she took the stand in their defense, the fact that said person was previously convicted of uttering and publishing could be revealed to the jury for the purpose of establishing that this testimony cannot be trusted.
A charge of uttering and publishing is serious and should not be taken lightly. There will be both short-term and long-term consequences to this felony conviction that will affect your personal and professional life. If you are accused of uttering and publishing or any other crime, do not hesitate to contact the criminal defense attorneys at Kershaw, Vititoe & Jedinak PLC to ensure your rights are protected.