Can I get out of a charge of fraudulent schemes if there was no intent?

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Can I get out of a charge of fraudulent schemes if there was no intent?

I was sent an email to do survey work and the company sent me a check. Ilooked online and the company was legitimate and I called the bank that the check was drawn from and the bank said the funds was there. A man I know that owns a restaurant cashed the check and then called me a few days later and said the check bounced. So I called the company and they wouldn’t answer so I did research on my own and found out it was a scam. I was charged with fraudulent schemes and may be indicted. I even had proof of the scam but it seems like my public defender isn’t helping much and didn’t show my proof to anyone.

Asked on November 29, 2010 under Criminal Law, West Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Two different issues here:

1) Legally, almost all crimes require a criminal state of mind, or mens rea. Without criminal intent, there is no crime, though there still could be civil liability--i.e., you could be sued. For example: say you deliberately passed a bad check--that's a crime. On the other hand, if you gave someone a check thinking it was good, but you did not receive the funds to cover it, then there's no crime, though the person who received  the bad check can still likely sue you.

2) Criminal intent can be often by shown or inferred by circumstances, and it's often enough that a reasonable person would have or should have known what they were doing. The fact that a specific person says he or she did not know is often not enough to exonerate them if a reasonable person should have known.

It may be in this case, that your proof is unpersuasive and the attorney decided tactically to not present it--for example, that it was still so obvious that what you did was a scam that no one would believe you did not know. However, it's also possible that you are receiving ineffective assistance of counsel. Ask your lawyer why he/she didn't show the proof; if you're not persuaded, you may wish to either retain another attorney (if you can get or hire one) or at least ask the court/judge what to do when a lawyer is not presenting a defense you wish them to. You control your defense; a lawyer *should* raise any defense that is not fraudulent or raised in bad faith that you wish them to, though the lawyer is certainly free to advise or recommend against it.


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