Successful criminal prosecution hinges on our ability to prove, beyond a reasonable doubt: 1) the identity of the person negotiating the check; 2) that the person intentionally negotiated the check; and 3) that at the time of negotiating the check, the person knew it would not be honored by the institution on which it was drawn. It is also important to know that, unlike debt collection cases, the burden is solely on the prosecutor to prove these facts with evidence other than the testimony of the suspected check writer. The prosecutor cannot call a defendant as a witness in a criminal case. Further, the fact that a defendant does not testify on their own behalf cannot be used against them.
For this reason, if you do receive a worthless check, it is critical to the investigation for you to first deliver a “Notice of Non-Payment/Notice of Dishonor” to the person who wrote the check. This notice must be sent prior to the initiation of a criminal investigation by the Kittery Police Department. This notice must be either hand delivered or mailed certified mail/return receipt requested. A copy of a sample notice is available by clicking the link above labeled, " Notice of Dishonor".
As part of our efforts to support the citizens and businesses of our community, the Kittery Police Department has developed this packet and accompanying worksheet to facilitate the resolution of and/or the prosecution of cases involving “bad checks.”
It is also very important for you to keep a record of any correspondence you receive from, or conversation you have with, the person who is suspected of writing the check. These communications are often helpful in proving who wrote the check and what they intended and knew at the time the check was written. While a prosecutor cannot call a defendant as a witness, statements made by a defendant outside of court may be admissible as evidence.
Bad Check Investigations
It is important to recognize that not every person who writes a bad check does so intentionally; knowing the institution on which it is drawn will not honor the check. Occasionally, an honest, well intentioned person makes a legitimate bookkeeping error and overdraws their account. Normally, simply contacting the writer of the check in these situations, results in a quick resolution usually accompanied by apologies.
Once you become aware that the person who wrote the check received the Notice, they have ten (10) days to comply. If they do not make good on the check or the Notice is returned as undeliverable complete the attached “Investigatory Worksheet” and forward the entire packet to the Kittery Police Department. The material included in this packet should be filled out as completely as possible. The more information available the more likely a successful resolution will be obtained. Please include copies of the check in question, your Notice of Dishonor and any related correspondence with your packet.
However, there are others who intentionally write “bad” or worthless checks with the intent to defraud. A “bad” check is one that has been returned by the bank unpaid. There are many reasons why a check is returned by the bank. Usually a check is returned by the bank due to either Non-Sufficient Funds or Account Closed/Not Found. If the check you received was returned for some other reason please contact the Kittery Police Department for advice.
A permissible inference is a legal term that means a jury may infer on fact, i.e. knowledge the check would not be honored, is true by proof of other facts, i.e. failure to properly respond to a Notice of Dishonor. However, in criminal cases a permissible inference as to one part of a crime, knowledge is a start in a case but alone is insufficient to prove the entire case beyond a reasonable doubt. Additional evidence, such as: bank records, proof of identity offered at the time the check was negotiated, prior bad checks written on the same account, and admissions by the defendant, are often necessary to prove identity, intention and knowledge.
There is a permissible inference in Maine Law that if a person who has negotiated a worthless check is subsequently, formally notified that their check has been returned unpaid (bounced); and they subsequently ignore that notification, the law presumes they knew at the time the check was written that the bank on which it was drawn would not honor the check.