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The National Trial Lawyers
Greater Lowell Bar Association

Uttering (Counterfeiting)

In Massachusetts, the crime of uttering is a felony with a maximum penalty of ten years in prison.

Elements of Uttering

A defendant is guilty of uttering when the Commonwealth proves beyond a reasonable doubt that:

  1. The document in question appeared to be a bank bill or note;
  2. The bank bill or note was falsely made, counterfeited, or altered;
  3. The defendant passed or attempted to pass the document to someone as true and genuine;
  4. The defendant knew or believed the bill or note to be worthless because it was falsely made, counterfeited, or altered; and
  5. The defendant acted with the specific intent to injure or defraud someone.

Uttering requires only that a significant item in the bill or note has been falsified or altered – it is not necessary that the entire bill or item is false or altered.

The defendant does not need to successfully pass the bill or note to another person. An attempt to pass the note is sufficient for a conviction, and the defendant is often unsuccessful in actually passing the bill.

The United State Secret Service has jurisdiction over counterfeiting crimes. Therefore, the investigations of these cases are generally very professional and thorough, and far superior to investigations conducted by municipal police departments.

Common Defenses and Defense Strategies

There are multiple avenues of defense in uttering cases.

  • Defendant’s State of Mind - The majority of these cases turn on whether the defendant knew or believed the bill or note to be worthless. If the Commonwealth cannot prove beyond a reasonable doubt that the defendant knew the bill or note was worthless, the defendant must be found not guilty.
  • Quality of the Counterfeit Bill - Because the Commonwealth must prove the defendant knew the bill was counterfeit in some way, the quality of the counterfeit bill is an important consideration. The better the quality of the counterfeit, the more likely it is that the defendant wasn’t aware it was bogus. By some estimates, there are tens of millions of dollars’ worth of counterfeit bills in circulation. Therefore, it is reasonable to think that a defendant innocently possessed a counterfeit bill and innocently tried to pass it as legitimate. Of course, if the bill is clearly counterfeit, the innocent mistake defense becomes much more difficult to assert.

Uttering convictions can result in serious consequences, including lengthy state prison sentences, and they are unique in the way they are investigated by the Secret Service.  However, despite the typical professionalism of the investigation, uttering cases are usually defensible.  It's rare that a bill is so obviously fake that a cashier would notice immediately.  If a cashier doesn't immediately notice the bill is counterfeit, it makes sense that the defendant might also have not noticed.  It is always a challenge when the assistant district attorney is required to prove the defendant's state of mind.  Attorney Chris Spring has defended hundreds of cases where his clients' states of mind were the central issue of the litigation, and he is experienced in trying these types of cases before judges and juries. 

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