An identity fraud charge often arrives with bank records, screenshots, and account logs that look damning at first glance. But identity fraud under Massachusetts General Laws chapter 266, section 37E, is a specific-intent crime with several parts, and the Commonwealth must prove every one of them beyond a reasonable doubt. When even one part is missing, the charge fails.
This article explains what the statute covers, exactly what the prosecutor has to prove, the penalties, and the defenses that most often make a difference.
What the Massachusetts Identity Fraud Statute Covers
Section 37E creates three separate crimes:
- Posing as another person (subsection (b)). This is the most commonly charged version: pretending to be someone else, without that person’s express permission, and using their personal identifying information to get money, credit, goods, services, anything of value, an identification card or other evidence of identity, or to harass someone.
- Obtaining someone’s personal identifying information (subsection (c)). This covers getting another person’s information without their express permission, with intent to defraud, intending to pose as that person, or to help someone else do so, for one of the same purposes.
- Possessing a data-theft device (subsection (c½)). This covers possessing a tool, instrument, or other article adapted, designed, or commonly used to access account numbers, PINs, passwords, or similar data, such as a card skimmer, under circumstances showing an intent to use it in a larceny or knowledge that someone else intends to.
Most people charged under § 37E face the posing version, so that is the focus below.
What the Commonwealth Must Prove
Under District Court Model Jury Instruction 8.420, a jury may convict someone of identity fraud by posing as another only if the Commonwealth proves four things beyond a reasonable doubt:
- First, that the defendant posed as another person.
- Second, that the defendant did so without that person’s express authorization.
- Third, that the defendant used that person’s personal identifying information to obtain or try to obtain money, credit, goods, services, a thing of value, an identification card, or evidence of that person’s identity, or to harass another person.
- Fourth, that the defendant did so with the intent to defraud.
If the Commonwealth fails to prove any one of these elements, the verdict must be not guilty. For more on that standard, see Proof Beyond a Reasonable Doubt.
Posing. The statute defines “pose” as falsely representing oneself, directly or indirectly, as another person or persons. The representation has to be false: the person must actually hold themselves out as someone they are not.
Express authorization. The Commonwealth must prove the defendant acted without having obtained express permission from the other person. Permission can be spoken or written, but it has to have actually been given.
Personal identifying information. This means any name or number that can be used, alone or with other information, to assume another person’s identity. The statute lists examples: name, address, telephone number, driver’s license number, Social Security number, place of employment, employee identification number, mother’s maiden name, checking (demand deposit) account number, savings account number, credit card number, and computer password identification. The model instruction notes that this list is not exclusive, so other data can qualify if it can be used to assume someone’s identity.
Intent to defraud. This means acting knowingly with the aim of deceiving or cheating another, usually to gain some benefit for oneself or someone else. Because no one can look inside another person’s mind, the jury may infer intent from the surrounding circumstances. The Commonwealth does not have to identify the specific person the defendant meant to defraud, and it does not have to prove that anyone actually lost money. It must prove the defendant intended to defraud someone. For a broader discussion, see Criminal Intent Explained.
What “Harass” Means Under the Statute
Identity fraud is not limited to financial schemes. Posing as someone and using their information “to harass” another person is also covered, for example by opening a social media account in another person’s name to torment them or a third party.
The statute defines “harass” as willfully and maliciously engaging in an act directed at a specific person or persons that seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress. An act is “willful” if it is done intentionally and by design, not by mistake or accident. An act is done with “malice” if it is intentional and without justification or mitigation, and any reasonably prudent person would have foreseen the actual harm that resulted. Malice does not require cruelty, hostility, or revenge, and it does not require an actual intent to cause the harm. Commonwealth v. Ecker, 92 Mass. App. Ct. 216, 221 (2017), cited in the model instruction.
Identity fraud by posing as another is a different offense from criminal harassment and from harassing or obscene telephone calls or electronic communications, although the same conduct can sometimes lead to more than one charge.
Penalties for Identity Fraud in Massachusetts
Each of the three versions of the crime carries the same maximum penalty: a fine of up to $5,000, up to two and one-half years in the house of correction, or both. Because the maximum is a house of correction sentence rather than state prison, identity fraud is classified as a misdemeanor under G.L. c. 274, § 1, and it is usually prosecuted in the District Court. A misdemeanor conviction for fraud can still do lasting damage to employment, professional licensing, and immigration status.
The statute adds other consequences:
- Restitution. A person found guilty must be ordered to pay restitution for the victim’s financial loss, which can include the cost of correcting the victim’s credit history and the costs of any civil or administrative proceeding to resolve a debt, including lost wages and attorney’s fees.
- Warrantless arrest. Police may arrest without a warrant anyone they have probable cause to believe committed identity fraud.
- Police reports. Police must accept an incident report from an identity fraud victim and, if asked, provide a copy within 24 hours.
1. No Intent to Defraud
Intent is often the weakest part of the Commonwealth’s case. Honest mistakes, misunderstandings, and a good-faith belief that permission existed are not fraud. Many cases grow out of family and household situations: spouses or partners using each other’s cards, relatives sharing accounts and passwords, roommates paying shared bills, or employees handling customer data for legitimate work purposes.
Evidence of innocent intent can include messages, a history of similar use without objection, the absence of any benefit, or an effort to repay once the problem came to light. Conduct that was careless, rather than meant to deceive or cheat, is not fraud.
2. The Person Gave Express Permission
The statute requires proof that the defendant acted without the other person’s express authorization. If the person actually gave permission, orally or in writing, this element fails, even if they later regret it or change their story after a breakup or family dispute.
A prior course of dealing matters here. If a spouse regularly allowed a partner to use a card, or a parent routinely let an adult child manage an account, that history is evidence that permission was actually given, and it also undercuts any claim of intent to defraud. The statute speaks of express authorization, so the defense usually focuses on proving that permission was in fact granted rather than arguing that it could be implied.
3. The Defendant Did Not “Pose” as Anyone
Under subsection (b), using someone’s name or information is not enough. The Commonwealth must prove the defendant actually represented themselves as that person.
In Commonwealth v. Mattier (No. 2), 474 Mass. 261 (2016), the defendant submitted a forged letter that appeared to come from a doctor, but he submitted it in his own name. The Supreme Judicial Court held that misrepresenting a document’s authenticity is not the same as posing as the person who supposedly wrote it. The court vacated the identity fraud conviction and ordered a finding of not guilty on that charge, while affirming his convictions for attempted larceny and conspiracy. The lesson is that forged or false documents may support other charges, such as forgery or larceny, but they are not identity fraud unless the defendant truly impersonated someone.
4. Nothing of Value Was Sought
The posing must be aimed at obtaining money, credit, goods, services, anything of value, or identity documents, or at harassing someone. In Commonwealth v. Escobar, 479 Mass. 225 (2018), the Supreme Judicial Court held that avoiding criminal prosecution is not “anything of value” under § 37E. The phrase is limited to things with a market or monetary value. Giving police another person’s name to avoid being charged, standing alone, is therefore not identity fraud, although it can be charged under other statutes. See our article on giving a false name upon arrest.
When the Commonwealth relies on the harassment clause instead, the defense can challenge whether the conduct meets the statutory definition: directed at a specific person, seriously alarming, and enough to cause a reasonable person substantial emotional distress.
5. Mistaken Identity or Weak Proof of Who Did It
Many identity fraud cases depend on circumstantial evidence about who was behind the keyboard or at the register. Common weak spots include:
- Poor-quality surveillance video or still photos.
- IP addresses, devices, or accounts that several people could access.
- Credit applications and online transactions with no photo or biometric verification.
- Eyewitness identifications made quickly or under stress. See Wrongful Identifications.
A defense lawyer can test how digital evidence was collected, develop alternative explanations for who used an account, and present alibi evidence.
6. Challenging Whether the Information Qualifies
The definition of personal identifying information is broad, but it is not unlimited. The information must be something that can be used, alone or with other information, to assume another person’s identity. In some cases the defense can argue that the data involved could not realistically have been used that way, or that the Commonwealth has not shown which information was used and how.
7. Defenses to Obtaining Information (Subsection (c))
When the charge is obtaining someone’s personal identifying information, the Commonwealth must prove intent to defraud and must also prove the defendant got the information intending to pose as that person, or to help someone else do so, for one of the prohibited purposes. Having someone’s information for work, a family matter, or another legitimate reason is not a crime. The focus is on why the information was obtained, not merely that the defendant had it.
8. Defenses to Possessing a Data-Theft Device (Subsection (c½))
This version requires possession of a tool or device adapted, designed, or commonly used to access financial account numbers, PINs, passwords, or similar data, under circumstances showing an intent to use it in a larceny or knowledge that someone else intends to. Lawful possession, for example for work, security testing, or repair, and the absence of any larcenous purpose are central defenses.
Practical Defense Strategies
Beyond attacking individual elements, an experienced defense lawyer can use several practical approaches:
- Early advocacy. Presenting evidence of permission or innocent intent before charges are filed, or early in the case, can sometimes persuade the police or prosecutor not to proceed, or to reduce the charge.
- Motion practice. Challenging the sufficiency of the complaint, moving to suppress digital evidence obtained improperly, and moving for a required finding of not guilty at trial.
- Negotiation. Depending on the facts and the defendant’s record, some cases resolve with a continuance without a finding, pretrial probation, or a reduced charge, often with restitution.
- Trial. When the case goes to trial, focusing the jury on the element the Commonwealth cannot prove, whether that is posing, lack of permission, something of value, or intent to defraud.
Related charges such as larceny by check and larceny by stealing often appear alongside identity fraud, and the defense strategy needs to address all of them together.
Talk to a Massachusetts Identity Fraud Defense Lawyer
Identity fraud cases often look stronger on paper than they are in court. If you are under investigation or have been charged with identity fraud, the Law Office of William J. Barabino in Medford can review the evidence, identify the elements the Commonwealth may not be able to prove, and explain your options. Attorney Barabino has over 23 years of experience in criminal defense and represents clients throughout Greater Boston.
Call 781-393-5900 for a confidential consultation.
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Disclaimer
This article is for general educational purposes only and is not legal advice. Massachusetts statutes, model jury instructions, and court decisions on identity fraud can change, and every case turns on its own facts. Reading this page does not create an attorney-client relationship. If you are facing an identity fraud charge or investigation, consult a licensed Massachusetts criminal defense attorney about your situation.
