ITRC Fact Sheet 111
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, a 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.
When to Use a Victim Impact Statement
Typically there are two times a victim impact statement should be sent to the court:
- Actual Hearing:
Should you decide to submit a victim statement for the hearing, it should be mailed at least one week prior to the hearing so the judge can read it along with the prosecutor’s brief. Your statement may include a brief summary of the case and the financial and emotional harm you suffered. If you fear for your life, you should discuss this prior to the arraignment with the District Attorney so he/she can indicate your fears to the judge. This is not the time to discuss sentencing. If you bring copies of your statement to the court, bring four sets – for the judge, prosecutor, defendant’s attorney, and one for you for your records.
- Sentencing Hearing:
This is after the trial is complete. Again, we recommend you send the letter to the court ahead of time so the judge has time to read it before coming to the bench. You may also choose to speak to the court yourself. Some victims send a letter and make an oral statement. If this is how you decide to proceed, it is vital that you limit your oral statement to about three minutes. You should highlight the important points you wish to share. This should not be the same statement you sent to the court previously. Talk with the prosecutor to find out what he/she advises you to include as a sentencing request. You may even want the prosecutor to read your statement prior to sharing it with the court and give you feedback.
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.
What NOT to Say in an Impact Statement
- It is not an opportunity to vent your anger at the law enforcement and judicial systems. You must always show respect to the judge and the position he/she represents.
- It is not the time to review the entire case; that’s the prosecutor’s job.
- It is not a time to be wordy. Avoid repetition. Brevity and accuracy are important.
- It is not a time to explode with an emotional outburst at the imposter or be overly dramatic.
- It is not a time to expect a confession from the imposter or to ask “Why did you do this?” The imposter’s “apology” might work against you if interpreted as remorse.
- It is not the time, or document, to provide any personal identifying information.
What a Victim Impact Statement Accomplishes
- It is a business letter that respectfully and clearly states the financial, emotional, and criminal burdens this action has caused you and your family.
- It is an opportunity to request reasonable restitution for out-of-pocket expenses you’ve incurred.
- It is an opportunity to let the court hear from the victim of the crime.
- It is an opportunity for you to request a reasonable sentence, what you would like to see.
- It is a chance to suggest to the judge to consider requiring psychological counseling, anti-theft counseling and long-term probation for the defendant.
- It is a chance to request that the judge prohibit the criminal from ever having your or anyone else’s personal information in his/her possession again, to prevent re-offending.
- It’s a chance to briefly educate the court about the long-reaching ramifications of identity theft.
- Most importantly, it is a time for you to get some closure. The very act of telling the court that you have been injured, knowing the judge has heard your pain, closes a door for many victims.
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 fact sheet should not be used in lieu of legal advice. Any requests to reproduce this material, other than by individual victims for their own use, should be directed to firstname.lastname@example.org.