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Victim's Rights and ID Theft: a Prosecutor's Nightmare

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by: Ryan • May 27, 2011 • no comments

ID Theft is an unusual crime. You can be guilty for stealing the identity of an imaginary person. That's one reason the "victim" often doesn't make it to sentencing.

Actually, I've previously written on why "the victim" really should be The Class of Victims for ID Theft and not the person whose identity was taken. Here's one reason why you may not have considered. Imagine I gave my credit card to a friend and said "use this card all day and then I'll report it stolen and we'll split the proceeds". That's not an unusual scam. But if the person whose ID is taken is a victim, then I am both victim and co-defendant.

But that's not the main point of this essay. Rather, I want to mention a procedural headache in light of the new OSC opinion on victim's rights. Assume the following scenario, which you may have seen a variation of in the news: an ID thief has a CD with the names and addresses of five hundred people, all obtained illegally from DMV. The prosecutor is merciful: she charges a mere 100 counts of ID Theft, naming only the first 100 alphabetically.

Normally, not a single person named would appear at trial. In fact, it's quite common that such persons don't appear at trial, and not just because they may be imaginary or dead. They just aren't essential for an ID theft prosecution, more times than not.

But if the person whose identity is stolen is a "victim," even if there is no evidence she is going to be defrauded, then each of those 100 names from DMV records must be notified of the trial and/or plea, pursuant to victim's rights legislation passed in 1999. If they haven't been notified, and the defendant is set for trial, is the trial allowed to go forward? If the defendant is in custody, does he get out if the state needs a set over to contact all 100 (or 500 or 1000)? Will defense attorneys start insisting the court's enforce the victim's rights legislation?

Of course, this problem won't exist if the victim of ID Theft is determined to be the person defrauded.