Fact Sheet 107
REQUESTS VICTIMS MAY MAKE OF THE COURT
In an attempt to make you whole again: legally and financially

This guide includes:

• Victim Assistance Programs · Restitution
• Credit Report Monitoring
• Written Letter Of Clearance- Mis-Id
• Other Items to Consider Requesting

Background : Written by Linda Foley - Most identity theft cases do not result in the perpetrator being arrested and convicted. So when my case (my employer stole my identity) went to court, I found myself in uncharted territory. There was no one to turn to, no one to ask about procedures or to help guide me through the legal maze. I learned to depend on district attorneys (though not the most consistent avenue of advice, since a case is typically assigned to a DA just 24 hours before court dates.

I approached this as I do many things – naively, and believing that everyone would be on my side. I found out that the legal system is a different world than the one I lived in. My desires and wishes would not be even considered, unless I understood the limitations of the game and how to play on their field.

My first reality check came when I had the opportunity to sit in a courtroom and see exactly what a judge deals with each day: robbery, rape, murder, and violent, brutal attacks on children and other helpless victims. These cases make identity theft look like a day at the zoo. Identity theft victims don’t have visible scars, they’ve been forgiven most of the financial loss, and as one judge (incorrectly) put it, “you really haven’t been harmed.” Some judges still see this as a victimless crime. It is up to us to show them otherwise.

Along with your district attorney, you need to put a face to this crime, to show it in living color. It is your responsibility to educate the judge about your needs and how this crime affected your life, from the time of discovery to that day in court.

Most of these requests (listed below) will be made during the Sentencing Phase of your case. Please note: a judge may or may not listen. The judge has the final word. However, if you don’t try, you’ll never know if the judge agrees with you.

You might also refer to our Fact Sheet 106  Organizing Your Case.

Many District Attorney Offices have a victim assistance program. Ask to speak to a victim assistance counselor to help you prepare yourself for the various stages of the prosecution, hearings, request for restitution, probation interview, hearings, etc. Each court and jurisdiction is different and many times the District Attorney doesn’t have time to help you. You can also read through the basic process in Fact Sheet 109 The Court Experience.

Make sure that you get all the pamphlets and procedures in writing so that you understand what is expected of you as a victim and witness. Keep a very detailed file of the information since this process may go on for many months.

Restitution is paid to the victim(s) when the court orders the defendant to pay a certain amount of money to his or her victims to reimburse them for their losses. While some judges are reluctant to order restitution, they are required to listen to your request and will usually consider reasonable and unavoidable costs.

We suggest that you write a letter asking for restitution. You may use Fact Sheet 111 Victim Impact Statements.

Clearly explain:

1. What happened to you as a victim, the summary of the case.

2. The impact financially, emotionally and physically.

3. The actual losses- out–of-pocket, hourly wages lost, doctor and therapy bills, etc. You may want to use   Fact Sheet 106  Organizing Your Case as a guide for this section.

One victim we worked with had to quit a contract job he accepted in Europe to return to the United States to clear up his case. He stayed here for two months, had lengthy phone calls around the United States and could clearly show lost income. He even decided to ask for his airfare. The district attorney told him that the judge would probably dismiss his requests. To his amazement, the judge granted all he asked and more.

Another victim, in a different case, asked for phone bills, postage, and less than 20 hours of lost time and was denied everything. The point is that you lose nothing by asking, as long as you ask in the correct format, and with respect to the courts.

In all cases, you must keep receipts of legitimate costs. You should also keep a detailed log of all time spent on clearing your name (time spent, what you were working on, who you called, etc.). You should also try to project 10 years into the future, anticipating reasonable expenses you will incur in clearing your case.

We also recommend that you look at our Fact Sheet 109 The Court Experience and Fact Sheet 111 Victim Impact Statements to see examples of how to add requests to your statement. Do not present a long laundry list to the judge. Be selective in what you request and be brief in your presentation. Remember: think like an attorney. Be respectful of the judge’s time and status. You are on their playing field now.

The judge has the discretion to determine which, if any, items will be considered for restitution. However here are some suggested items for inclusion:

• Travel
• Notarizing
• Postage- to mail letters pertaining to your case to credit bureaus, credit card companies, banks, merchants, loan officers, etc. This really adds up, since many the letters are mailed “return receipt requested.”
• Phone calls – track who you talked with and why. Make a photocopy of your phone bill and keep that in a file.
• Document photocopying
• Fingerprinting fees
• Costs incurred to replace identifying documents – for instance, to the Department of Motor Vehicles for a new driver’s license.
• Legal and private investigator fees – only if you can prove that you had no choice in your attempt to clear your name
• Business supplies – be careful to limit these costs to items used exclusively in your identity theft case. Your new computer will not impress the judge nor will any supplies that can be used for other activities.
• Time lost. This is a touchy category for many judges. However, if you can clearly show loss they might consider it. Your log will come in handy here. Include time loss from work to clear your name and time you needed to spend in court as a witness
• Doctor’s bills and costs for prescription incurred only because of this crime.
• Psychological counseling - In many cases, the imposters truly do not understand how they harm you, your children, and others. After all, they were only “borrowing” your identity. This crime has significant impact upon victims, and as a victim, you should not be afraid to request professional counseling.
• Lost application fees if turned down for loans or credit because of this crime.
• If your state does not have freeze laws, you might ask for the future cost of credit monitoring services. For legal precedent and reference, refer to San Diego, California—SCD #138381

Through studies, we know that identity theft criminals tend to be repeat offenders. Victims often say that while their perpetrators got off with 3 years of probation, they are servicing a life sentence. It is true that victims live with the fact that the imposter may reuse the information at any time. They might also sell it repeatedly for others to use.

So, the question arises, how do you monitor your credit reports as effectively as possible? Some people prefer to subscribe to a Credit Monitoring Service. There are several currently in the United States. We recommend the ANNUAL CREDIT REPORT PROGRAM- a free program provided by federal law. If you call 877-322-8228, you can order one credit report from each of the three bureaus every 12 months. By staggering your requests you can keep an eye on your credit for FREE.

WRITTEN LETTER OF CLEARANCE - MIS ID (Identification)

Separating From the Imposter:

If the imposter has used your name as an alias while committing a crime or if you have difficulties proving you are you -- one of the tools you can request from the courts is a “Letter of Clearance – Mis ID.” It is known by various names so ask the district attorney or sheriff in your area for the precise title.

You will need to carry this form with you for years to come so make numerous copies of it. We also suggest you give a copy of it to a family member or close friend in the event you misplace the copy you carry on your person and you need it in an emergency. This document will save you countless embarrassing moments and potential visits to the local jail.

If you are a victim of this type of theft, please read Fact Sheet 110 Criminal Identity Theft.

• That all documents containing your personal data currently in the possession of the imposter shall be returned to you or that you receive written notice from the court that either the court or law enforcement has possession of them and that they were properly destroyed -- shredded. You have the right to make sure the imposter does not just throw them in the trash, available for dumpster divers to take.
• Anti-theft counseling – we know that ID thieves are often repeat offenders. Once they learn how easy it is to steal an identity, the temptation may be more than they can fight.
• Anti-drug, gambling or alcoholism counseling, if appropriate.
• Psychological counseling for the imposter – Again, in many cases, the imposters truly do not understand how much they harm you, your children, and others. After all, they were only “borrowing” your identity, “what’s the big deal?” These are often repeat offenders, also. You should ask that the court mandate professional counseling for the perpetrator.
• Regular review hearings/probation – ITRC believes this is one of the most important tools we have. Most often ID thieves just receive probation. With probation officers handling sometimes 100 cases, Review Hearings become a way for the courts to regularly check in probation and make sure the imposter is following all court mandates.
• We recommend you request that a review hearing occur 6 months after sentencing.
• That the imposter may never, from this day forth, have any personal information about you in their possession—electronically or on paper.
• That the imposter must give written letter to anyone that they may be collecting personal data from that he/she is a convicted felon of (penal code—i.e., false personation). This letter serves as warning to potential victims. If they choose to ignore it, at least you have made sure that they were warned.

Copyright February 2007, Identity Theft Resource Center®, all rights reserved.
Written by Linda Foley and ITRC Staff