The goal of the following information is to enhance your working relationship with law enforcement and credit investigators. It includes:
One of the most common complaints we receive from identity theft victims is that they feel that law enforcement doesn’t care. Many also complain that fraud investigators at banks and credit card companies don’t appear to have the victim’s best interest at heart. They may be right. But this also may be partially due to poor communication. We all adjust our communication styles depending on the environment. At work we talk one way, and at home we could cover the same topic in a variety of different ways. The same is true in crime investigations.
Our victim advisors have often listened to a victim talk about his or her case for 15 or 20 minutes -- without being told the pertinent facts or having the victim clearly identify what they need from us. (That’s one of the reasons ITRC is here, to provide the emotional outlet you might need.)
This fact sheet will help you state your case in a way that is most useful to the police and to fraud investigators at financial institutions. The tips in this sheet will help you to focus on the pertinent facts and see your case the way they do.
Fraud crimes are complicated. As one police detective said, the person who knows the facts and details of this case best is YOU. The ability to solve these crimes is usually contained in the details. When one person tells another person a story, especially a complicated story, the person hearing the details usually gets a rough sketch of the situation. This is often what happens when a police officer takes a fraud report from a victim who may not understand which points are the most important to the case and which points really can be left for another time, or are just not relevant. After all, most of us are not professional investigators. The result is that a detective may determine that the case is not workable, when in fact it may be. By writing down the details, you will also outline and organize the case in your mind so that you can easily tell the story quickly.
1. Prior to talking with an investigator, start a journal so that you can record details as they occur (refer to ITRC Fact Sheet FS 106 – Organizing your Identity Theft Case).
2. Rough Draft: Outline the story, in chronological order, exactly the way that you discovered it. Put down anything you think is important. Don’t censor your thoughts. You’ll edit it later. There are certain things that are important to include:
Some of the information on this list can only be obtained after you present a copy of the police report to the merchant or credit provider. Get together what you can for the initial report then supply the additional information as you receive it.
3. Working draft: Now write a concise narrative, removing any emotional responses (for example, “He was very rude to me on the phone”). This draft will lengthen as you uncover more information.
4. Include your identifying information:
Be ready to provide, but do not record on this document, the following three items:
Law enforcement officers carry large caseloads. They need to get the information as quickly and as accurately as possible. It is important that we spend their time wisely. After all, the point is for them to catch the bad guys.
1. Listen and Participate
2. Question and Communicate
The handling of your report and case will depend on the available resources of the agency that takes the report. If law enforcement feels that the case is unworkable, focus on clearing your name.
What might seem to you to be clear-cut evidence might not help your case due to various evidence laws. Law enforcement must clearly prove a chain of evidence that connects the crime to the imposter. For a more detailed look at “The Evidence Trail,” please read ITRC Fact Sheet FS 114.
This is the investigator’s case. They must be in charge of the investigation, or you could taint the case. However, you can ask how you might help and work with them. Remember, however, that your theft is not their only case. Please respect their time and be brief in your phone calls. Get right to the point. Identity theft cases are slow and may take months to complete.
As much as we would like them to, most identity theft cases do not end in arrest. Usually, this is not the fault of law enforcement; they are overworked and understaffed. Leads may not pan out, and evidence we thought might be perfect may not legally prove a case. We hope that by following the advice we have provided, your case will end in an arrest and conviction. Should it not, however, know you did everything humanly possible. And please note that many detectives leave unsolved cases on their desk hoping that sometime, somehow, a new piece of evidence will finally prove to be the imposter’s undoing.
This guide covers:
From the moment they discover the theft, most identity theft victims find they must take an active role in clearing their names and bringing the imposter(s) to justice. As in the other aspects of the case, ITRC feels it is important that the victim continues to be active, either in person, through a written statement, or both.
One victim that ITRC helped was unable to travel to the courtroom, but with the court’s permission was allowed to videotape her victim impact statement. The prosecutor later said that it was well received by the court and may have made a difference in sentencing.
In many cases, victim statements serve to educate judges about the long-term effects of identity theft, a crime they may not often encounter. Victims quickly find out that real courts are not like the ones we see on television. Judges deal with robbery, rape, murder, and violent and brutal attacks on children and “helpless” victims on a daily basis. These crimes make identity theft appear less invasive in - and to - the victim’s life. Identity theft victims don’t have bruises to show. They’ve been forgiven most of the financial loss. So, some may still see this as a victimless crime.
It falls to the victim to clearly explain otherwise, in language that the court can consider. The victim needs to speak in terms that a judge can include in his/her deliberations. Please remember that hysterics and rage aren’t appropriate, no matter how upset you are. Identity theft victims have indeed been harmed, but it must be kept in, and presented in, perspective so that the judge can take you seriously.
A victim impact statement will help the district attorney or prosecutor to put a real face to the crime, to show it in living color. It is your responsibility to educate the judge and probation department about your needs and your reaction to this crime. We recommend you also refer to ITRC Fact Sheet FS 109 - The Court Experience, to completely understand your role in the courtroom and what will occur. ITRC Fact Sheet FS 107 - Reasonable Requests a Victim Can Make of the Court discusses restitution options.
Typically there are two times a victim impact statement should be sent to the court:
If you are unwilling or unable to be in the courtroom, you do not need to attend unless you receive a court order to appear. However, being there gives some victims the sense of closure they seek.
We recommend you write your comments like a business letter. Write short paragraphs, which are easier to read. Organize your thoughts to avoid repetition. Spelling and grammar definitely count.
Ask the DA or the probation officer the best way and time to send this to the judge. Also remember that all documents submitted to the court or read in court become part of the public trial record. If you don’t want something publicly known, then don’t include it.
The Identity Theft Resource Center thanks Mari Frank, Esq. for parts of the following format. You can find examples of victim impact statements in her book, From Victim to Victor (footnote 1). We recommend the entire statement not exceed TWO pages.
The Honorable __________________________
County of (name) Superior Court
Dear Judge (name):
First section - in your own words, thank the judge for the opportunity to present your statement.
Second section – One short paragraph to summarize the next four sections. (This is a writing technique called “tell them what you are going to tell them about.”)
For example, “I am a victim of identity theft. On (date), (name) stole over $50,000 from credit grantors using my name. For more than 14 months he used my name and Social Security number, opening 15 accounts across the country. In doing so, he caused my family great emotional stress due to repeated calls from collection agencies, a loss of more than 180 hours of my time and required me to spend $350 in out-of-pocket expenses to clear my name. To this day, I have still not been able to resolve three accounts, and have been turned down for a loan on the home of our dreams.”
Third section – The Burden on the Victim. This is the time to summarize your efforts to clear up the problem caused by this crime. Tell about the hours you spent, the numerous letters and phone calls you made, fraud alerts on accounts, changing accounts, getting a new driver’s license number, dealing with credit grantors and governmental agencies. Bring your victim notebook (see ITRC Fact Sheet FS 106 – Organizing your Identity Theft Case. Were there any long-term effects such as refused credit or the loss of a job due to a DUI by the imposter? Keep it short and be specific.
Fourth section – The Emotional Impact. How did this affect you and your family emotionally, medically? How did this affect your family, relationships and employment? Did this crime cause a change in your lifestyle or your personality? Give examples and some details to prove your point, but don’t beat it to death.
Fifth section – State your respectful requests of the court in terms of sentencing (See ITRC Fact Sheet FS 107). This is the time to ask for a Letter of Clearance (Declaration of Innocence) or to ask for the court’s assistance in clearing up any ongoing problems. It is also a time to request of the court to prohibit the defendant from ever possessing any documents with your identifying information. Then write a short conclusion. This is your final opportunity to briefly explain why you hope the judge will take this crime seriously and consider your requests.
Finally - Thank the court for their attention and sign your name. Attach copies of any documents that you want the judge to consider, including time logs, receipts for costs, and time expended.
As more cases of identity theft get to court, judges will become more aware of the intricacies involved in these cases. They will become more attuned to victims of these crimes and what they suffer. Many of you will be pioneers in the courtroom, opening or closing judicial minds about identity theft. Your case, statement, and demeanor will affect those that follow, and may make the difference in what type of sentence your imposter receives.
In many cases, the sentence may not include jail time. While jail time may be your goal, it may not be realistic. Talk with the prosecutor to learn what sentence you can realistically expect. They know the judges and what each judge will accept. Working with the prosecutor, you help yourself to make the biggest impact on the court.
Footnote 1: From Victim to Victor was written by Mari Frank, Esq., a nationally recognized ID theft expert and attorney. From Victim to Victor: A Step-by-Step Guide for Ending the Nightmare of Identity Theft, by Mari Frank, Esq. with Dale Fetherling, Porpoise Press, 1998.
This guide includes:
Criminal identity theft occurs when an imposter provides to law enforcement another person’s name and personal information (such as a drivers’ license, date of birth, or Social Security Number) during an investigation or upon arrest. This includes the use of counterfeit documents using another person’s data. The imposter may fraudulently obtain a driver’s license or identification card in the victim’s name and provide that identification document to law enforcement. Or, the imposter, without showing any photo identification, verbally provides the name and personal information of another individual.
In many cases, the imposter is cited for a traffic violation or for a misdemeanor violation. The imposter signs the citation and promises to appear in court. If the imposter does not appear in court, the magistrate may issue a bench warrant, but the warrant of arrest will be under the victim’s name. The identity theft victim will probably not know there is a warrant of arrest issued under his or her name. The victim may unexpectedly be detained pursuant to a routine traffic stop and then subsequently arrested because of the outstanding bench warrant.
In some cases, the imposter will appear in court for the traffic or misdemeanor violation and plead guilty without the victim being aware of this event. This in turn establishes a criminal record for those actions; however, that record is now in the victim’s name. In other cases, the imposter is arrested and booked at the county jail for a felony or another serious public offense, such as a DUI. This arrest or court information is then recorded in the countywide data base and is usually transferred to the state’s criminal records database. From there, it may be forwarded to the national crime index database, at the National Crime Information Center (NCIC).
A criminal record is created when the imposter is first “booked,” or a warrant of arrest is issued. The problem is that the information in the criminal records database is for that of the victim, not the imposter. The information is also likely to be entered into the FBI’s National Crime Information Center (NCIC) database.
Some identity theft victims, unaware of the earlier criminal activity by the imposter, may learn of the impersonation when the victim is denied employment or terminated from employment. In these cases, the employer likely conducted a background investigation and had relied upon the criminal history found under the victim’s name. The employer is legally obligated to inform the victim of the reason for the rejection of employment. The burden of clearing one’s name within the criminal justice system falls primarily on the victim. The victim must act quickly and assertively to minimize the damage. The responsibility to correct the erroneous data in the various criminal justice computer systems lies with the officials working within the criminal justice system. There are no clearly established procedures for clearing one’s wrongful criminal record.
The purpose of this guide is to provide information on the steps you must take to clear your name. Be aware that the procedures to correct the record within the criminal justice databases are likely to be somewhat different from state to state, and even from jurisdiction to jurisdiction within the same state.
In dealing with any identity theft issue, it is vital that you keep a detailed log of all conversations, including dates, names, phone numbers, and e-mail addresses.
See ITRC Fact Sheet FS 106 - Organizing Your Case, to help you track your efforts.
The following are general steps you must take to clear your name of the erroneous criminal record. These procedures are likely to vary somewhat from jurisdiction to jurisdiction.
Working with Law Enforcement Agencies:
Note: Due to authentication issues, most law enforcement agencies will only accept this information in person, or by submission from another law enforcement agency.
You will need to determine the specific law(s) in your state that enable you to clear your name in the court records. A judge or magistrate will be required to make this determination.
From the court you will need to request:
What if the victim of identity theft lives in one county and the criminal event including the arrest warrant, traffic citation, or criminal conviction originated from another county or state?
What if law enforcement determines the victim’s innocence but doesn’t know the true name of the imposter?
In the event that the imposter’s true name is not yet known, request the “key name,” or primary name, is switched from your name to the name “John Doe” with your name noted as an alias.
What if the law enforcement agency does not believe that an imposter committed the crime/s and arrests the victim?
At this point the victim will need legal counsel. The victim will also need to show any available evidence to prove that he/she was not at the location of the crime when it occurred in order to provide an alibi. Employment work history and statements from witnesses should be effective.
What if fingerprints were not taken by the arresting officer when the imposter was arrested?
Use signature verification and any relative remarks made on the arrest or citation form by the officer such as scars, marks, tattoos, and height and weight.
Are there any agencies that might help the victim?
The State Attorney General’s Office or the US Department of Justice may be able to assist. See the ITRC State and Local Resources page for links to your state resources.
Should the victim hire an attorney?
This depends upon the severity of the case. If the charges are serious and the resolution appears to be complicated and difficult, it would be a good idea to have legal counsel. However, this is a personal issue to be decided by the victim.
Should the victim change their Social Security number or driver’s license number?
This depends on how severe the case and to what degree the identity has been affected. Please see ITRC Fact Sheet FS 113 - Should I change my Social Security Number? and ITRC Solution SN 11 - Social Security Change Check List regarding changing your Social Security Number.
In addition to working with law enforcement and the court system, are there any other steps the victim should take to clear his/her name?
We suggest that the victim check their credit report often for any indications that the issue may have crossed over into financial areas. We recommend that victims check their credit reports every 4 months, using the free annual credit report system, and staggering the requests. For more on this, please see ITRC Fact Sheet FS 125 - Federal Annual Credit Report or ITRC Solution SN 03 - Contacting the CRAs to Place a Fraud Alert regarding credit reports.
What additional considerations should I be aware of regarding employment?
Even though you may have cleared up the records with the local, state and federal systems, it is possible for negative information to still show up on a background report. If this should occur, you must ask the company which background screening company they used. You will then need to show your documentation of clearance to that background screening company in order to clear their records. You will also want to provide the clearance documents directly to the employer to help defuse the matter.
Are there any precautions individuals can take to prevent becoming a victim of criminal identity theft?
There is no “early detection” system to alert victims of criminal identity theft. However, you should take all the same precautions that you would take to prevent financial identity theft. There are many simple things that can be done to protect your information from use by others, including criminal identity thieves. Please see ITRC Section on ID Theft Prevention Tips under Victim Resources.
A majority of identity theft cases never make it to court. Victims whose cases do go to trial may find valuable information in the following document. Additional resources can be found at your local Prosecuting Attorney’s Office, in the Division of Victim Witness Services.
Keep in mind, as you read this information, that each case is unique. What one victim experiences may not be your experience, even within the same jurisdiction and court. This general information is not meant to take the place of legal advice from an attorney, or advice from a DA victim assistance counselor. However, it might help you understand the complexities of the judicial process.
This fact sheet will cover the following topics:
(from Roles, Rights and Responsibilities: A Handbook for Fraud Victims Participating in the Federal Criminal Justice System – U.S. Department of Justice, Material # NCJ172830, pg. 12). Please note: these apply to federal crimes and your rights may vary, determined on the laws that govern court cases in your state.
In general, you have the right to:
Throughout the process of clearing your name, you have filled out a number of affidavits. On these forms is some information you might not want publicly known. This could be your new driver’s license number, mother’s maiden name, former addresses or names used, new address, birth date and account numbers.
Many victims do not know that you may request that identifying information be redacted (blackened out) from documents being put into court records or given to the defense attorney during discovery. Unfortunately, we have heard of cases where the perpetrator has gotten these documents and now has even more information than he/she originally had. Talk with the detective and DA on your case about your options. These will vary from jurisdiction to jurisdiction.
Throughout the court process, take detailed notes. Note names of people who testify, the name of the judge, DA, court reporter and even the probation officer. Write down who said what, judicial rulings, anything the defendant says. Jot down questions about things you don’t understand or items you feel were ignored. You can ask the DA or victim assistance counselor about those later.
The following are common terms in the process. However, each case is different and yours may vary from the outline below.
Arraignment: This is when the defendant comes before a judge for the first time, to answer the accusations made by the “state.”
Pretrial Readiness Conference: Usually a meeting in the judge’s chambers. This is when the prosecutor shows or discloses (disclosure) all the evidence they have collected in a case to the defense attorney so that they may adequately prepare the defense. It is also a time that the possibility of a plea bargain may be discussed. You probably will not be present during this phase.
Plea Bargain: A Plea Bargain may be made and accepted any time during the process, as long as a jury has not yet announced its verdict.
Preliminary Hearing: The first hearing of the evidence before a judge. The preliminary hearing judge determines if there is sufficient evidence to hold the defendant over for trial. The judge may ask if the defendant waives his/her right to a jury trial.
Evidentiary Hearing: A hearing to discuss the validity of evidence that will be considered during trial.
Judge or Jury Trial: A case is tried before a ruling body, either a judge and jury, or just a judge. All defendants have the right to have a case heard before a jury of their peers. Or they can waive (give up) that right and agree to a hearing (trial) before a judge. In trials before a judge only, the judge rules both on the points of law and the innocence or guilt of the defendant.
Sentencing Hearing: The sentencing hearing is the time when a judge sets the punishment if a defendant is found guilty. Prior to this hearing, victims in the case will be contacted by the Probation Department and interviewed. It is the responsibility of the Probation Department to determine emotional, physical and financial damages to victims, and to consider that information in their recommendations to the court regarding sentencing.
Review Hearing: Some judges maintain jurisdiction over a case after sentencing. This is a way to make sure that all terms of sentencing and probation are being met, and that the convicted defendant is following those terms.
You probably will not be asked to speak at this hearing, and may not be involved. Sometime after the arraignment, someone from the DA’s office may contact you to let you know about the date of the trial.
Depending on your city or county, you should expect that this DA will not be the DA who later will try the case. Frequently, victim contact is just an administrative function, and the DA’s rotate this duty. If you become aware that your perpetrator has been arrested, and you have not been contacted by the DA, you should call the DA’s office and ask for the calendar coordinator. You may need to be persistent.
If you are involved in the arraignment, you will be a spectator. Typically, the defendant will go up to the front of the room along with his/her attorney. The court will read the charges and ask how they plead. Expect to hear the words, “Not guilty.” Do not react to this; this is just a legal process. The judge will quickly review the DA’s charges. Then the judge will set a preliminary trial date, a readiness hearing date and decide bail.
Keep in mind that this is the people’s case, represented by the prosecutor, not yours. The DA may not present the information you wish. He/she may not focus on points you think are important and may even settle for a plea bargain without consulting you.
Many things figure into the way a prosecutor presents a case. The prosecutor must consider the type of penalty asked for, and how many counts (acts of criminal behavior) are charged in the case. For example, sometimes your case is just one of several cases that are being charged against an alleged imposter.
The DA will focus on the crimes that have the best chance of successful prosecution, or that hold the highest resulting penalty. Those crimes may not be yours. Sometimes a DA has a wealth of criminal activities to prosecute, but going after each incidence won’t help improve his/her case. The judge might see such actions as persecution, or a waste of time. Be aware that the penalty might not change between 31 counts and 15 counts in a specific case.
Again, take notes. Keep your cool and act in a professional manner. You may not even need to say anything until the imposter is found guilty and the court moves into the sentencing phase. If you are called to testify, follow the directions given to you by the DA’s office prior to trial.
This is the time to submit your first copy of the Victim Impact Statement to the judge. See ITRC Fact Sheet FS 111 - Victim Impact Statements on how to write this letter.
If the defendant is found guilty, the judge will set a date for sentencing. If, however, a plea bargain has been struck, the case will move directly to sentencing. You will be notified of the date of this phase and you should talk with the DA prior to this date. You should also talk with the Probation Officer assigned to the case.
Typically, the Probation Department will talk with you, possibly by telephone, as well as with the defendant. The probation officer will want to find out how you have been affected by this crime, how you have been harmed and your ideas about sentencing. We suggest you look at ITRC Fact Sheet FS 107 - Reasonable Requests a Victim May Make of the Court and ITRC Fact Sheet FS 111 - Victim Impact Statements.
You have the right to submit a written Victim Impact Statement. If you want, you can also make a statement in court. The judge must read anything you submit to the court, prior to sentencing. Please do yourself a favor: Prepare a statement, keep it concise, accurate, clear, and complete. This is the best way to have your message heard clearly by the court. You may attach a financial statement detailing your costs and expected costs; include copies of any receipts that verify expenses.
If the imposter is found guilty, the judge will pass sentence. That sentence may include probation with review hearings. The Probation Department will give a report to the judge regarding probation progress (or lack thereof), and law enforcement is also permitted to search the convicted felon’s residence, car, person and belongings for any probation violations. Before a Review Hearing, victims who suspect that the felon is breaking probation or the law should notify either the police detective that was on the case or the assigned probation officer. Review Hearings give victims another chance to address the court, especially if probation violations affect them.
Acquittal: A legal finding that the defendant has not been proven guilty beyond a shadow of a doubt.
Action: The case, cause of action, before the court.
Affidavit: A written statement of facts made under oath before a notary or court officer.
Arrest: To hold a suspected criminal with legal authority. Unlike in TV, this may not be a dramatic event but rather a person walking into the police station and turning themselves in to authorities.
Bail or Bond: A court-ordered monetary amount to be given by the defendant and held in trust by the courts to guarantee his/her future appearance in court. This is often done through a bail bondsman.
Bench warrant: An order issued by a judge for the arrest of a person.
Brief: A written summary and argument of the appropriate laws that pertain to this case, presented to the court by the attorneys in the case, biased to each point of view.
Continuance: A postponement, for good cause, of the scheduled court date.
Defense attorney: The lawyer hired by the defendant, or an attorney appointed by the court. This could also be a public defender.
Defendant: The alleged imposter (everyone is innocent until proven guilty).
Deposition: An oral statement made by a person before a court reporter, captured in writing and considered advance testimony.
Dismissal: The dropping of a case by a judge without further consideration.
District Attorney or Prosecutor: The lawyer who will prosecute the case for the city/county/state. They do not represent you, the victim, and you cannot dictate their actions or decisions. However, they will help to make sure your feelings are considered in the sentencing and do look out for your interests in general.
Docket: The list of cases on a court’s calendar.
Forgery: The act of making or altering a written document for the purpose of fraud or deceit; for example- the signing another person’s name to a check.
Fraud: Intentional deception which results in injury (physical, emotional or financial) to another.
Libel: A false statement made in writing, print or picture, which injures the character or reputation of another or exposes them to public ridicule.
Mediator: A person (often an attorney or retired judge, either appointed by the court or mutually agreed up by both parties) who listens to a case and facilitates agreements. An arbitrator has the authority to make a ruling.
Motion: A written request to the court for an order/ruling in favor of the applicant.
Overruled: In court, a judge’s rejection of the attorney’s objection to a question by the opposing side.
Own recognizance (OR): When a defendant is released without bail, after promising to appear, using his/her word as bond.
Plea: The defendant’s answer (guilty or not guilty) to the charge(s) made against him/her. The combined complaint and answer are called “pleadings.”
Probation: A period of time when the Probation Department monitors a convicted defendant. Probation requires regular meetings with an officer of the court to ensure that all terms of a sentence are met.
Released on recognizance (ROR): when a defendant is released without bail, after promising to appear, using his/her word as bond.
Remand: A court’s ruling to send a case back to a lower court for further action.
Restitution: The court-ordered payment by a defendant to victims for damages.
Search Warrant: A judge’s order that allows law enforcement to search for specifically designated items of/at the defendant’s person, property or premises.
Slander: Similar to libel, but applies to oral statements.
Stayed: As in, “jail time is stayed.” For now, that part of the sentence is not being executed; the defendant is not required to do that portion of the sentence.
Subpoena: An order directing: 1) a person to appear in court to testify, or 2) certain documents are brought to court.
Summons: An order to the defendant to appear in court to deal with a legal issue.
Sustained: In court, the judge agrees with the attorney’s objection to the opposing attorney’s question. The witness should NOT answer the question. In some situations, the attorney may try to reword the question and find another way to ask it so that the opposing attorney has no grounds to object.
Tort: A wrong or injury that does not grow out of a breach of contract and for which one is entitled damages, for example: fraud, slander or libel.
Waive: To give up or relinquish, as in “do you waive your rights?”