Identity fraud charges in Massachusetts are serious, but they are also defendable. Under Massachusetts General Laws Chapter 266, Section 37E, the Commonwealth must prove every element of the crime beyond a reasonable doubt. If the prosecution fails to prove even one element, the defendant is entitled to a not-guilty finding—or a dismissal or reduced charge earlier in the process.
This article explores the most effective defenses available to people facing identity fraud accusations in Massachusetts. Whether you are under investigation or have already been charged, understanding these defenses is the first step toward protecting your rights, your record, and your future.
For personalized advice about your specific situation, contact experienced criminal defense attorney William J. Barabino at 781-393-5900.
1. Lack of Intent to Defraud (Often the Strongest Defense)
Every version of identity fraud under § 37E requires specific intent to defraud—meaning the defendant acted knowingly with the aim of deceiving or cheating someone for personal gain or to benefit another person.
How this defense works:
- Honest mistakes, misunderstandings, or a good-faith belief that permission existed can destroy this element.
- Common scenarios include family members sharing passwords, spouses using each other’s credit cards, roommates accessing shared accounts, or employees handling client data for legitimate work purposes.
- Courts examine the defendant’s state of mind. Circumstantial evidence of innocent intent—such as text messages, emails, a prior course of dealing, or the absence of any financial benefit—can create reasonable doubt.
This is frequently the weakest part of the Commonwealth’s case and the primary focus of a strong defense strategy. An experienced attorney can highlight the absence of fraudulent purpose and show that the conduct, while perhaps careless, was not criminal.
2. Express or Implied Authorization
The statute requires that the defendant acted without the express authorization of the person whose information was used.
Key points:
- “Express” authorization can be verbal or written.
- Courts also recognize that authorization can arise from a prior course of dealing, joint accounts, family relationships, or business arrangements.
- If the alleged victim previously allowed similar use of their information, or if the defendant reasonably believed they had permission, this element fails.
Example: A partner who regularly used a spouse’s credit card with knowledge and without objection may have a strong authorization defense, even if the spouse later claims they never gave formal, written permission.
3. Failure to Prove the Defendant “Posed” as Another Person
Under subsection (b)—the most commonly charged version—the Commonwealth must prove the defendant posed as another person. This means the defendant falsely represented themselves (directly or indirectly) as that person.
Important case law: In Commonwealth v. Mattier (2016), the Supreme Judicial Court vacated an identity fraud conviction because the defendant submitted a forged letter claiming it came from a doctor, but never pretended to be the doctor. The Court held that misrepresenting a document’s authenticity is not the same as posing as the person named in the document.
This distinction has led to dismissals and not-guilty findings in cases involving forged documents or false claims that do not involve true impersonation. Simply using someone else’s information is not enough if the defendant did not actually hold themselves out as that person.
4. No “Anything of Value” or Improper Purpose
The statute requires that the information was used (or obtained) to get money, credit, goods, services, anything of value, an identification document, or to harass someone.
Key limitation from case law: In Commonwealth v. Escobar (2018), the Supreme Judicial Court held that avoiding criminal prosecution is not “anything of value” under the statute. Giving a false name to police during a traffic stop, standing alone, does not support an identity fraud conviction under § 37E(b). Other statutes specifically address providing a false name to police.
Defense attorneys can also challenge whether the alleged purpose truly qualifies under the statute’s language or whether the Commonwealth has proven an intent to harass as defined by law (willfully and maliciously engaging in conduct that seriously alarms or annoys a person and would cause a reasonable person substantial emotional distress).
5. Mistaken Identity or Insufficient Evidence Linking the Defendant
Many identity fraud cases rely on imperfect evidence, including:
- Surveillance video of poor quality
- IP addresses or device logs that multiple people could have used
- Credit applications or transactions lacking clear biometric or photographic identification
- Witness identifications made under stressful or brief conditions
Massachusetts courts have repeatedly recognized the unreliability of identification evidence. A skilled defense attorney can attack the chain of custody of digital evidence, raise alternative explanations for who accessed an account, present alibi evidence, or highlight gaps in the Commonwealth’s proof that the defendant was the person who actually used the information.
6. The Information Was Not “Personal Identifying Information”
The statute defines “personal identifying information” specifically. It includes any name or number that may be used, alone or with other information, to assume another person’s identity—such as name, address, telephone number, driver’s license number, Social Security number, place of employment, employee ID, mother’s maiden name, bank or credit card numbers, and computer passwords. Not every piece of data qualifies. A defense can argue that the information used does not meet the statutory definition.
7. Defenses Specific to Obtaining Information (Subsection (c))
For charges based on obtaining personal identifying information (rather than posing as the person), the Commonwealth must also prove the defendant acquired the information with the specific intent to pose as the person (or help someone else do so) for one of the prohibited purposes. Legitimate acquisition of information for work, family matters, research, or other non-fraudulent reasons defeats the charge.
8. Defenses Specific to Possessing a Data Theft Device (Subsection (c½))
This version of the offense requires possession of a device designed to access financial or personal data, plus intent to use it (or knowledge that someone else intends to use it) for larceny. Lack of criminal intent or legitimate possession of the device—for example, for work, testing, or other lawful purposes—is a viable defense.
Practical Defense Strategies
Beyond attacking individual elements, an experienced criminal defense lawyer can use several practical approaches:
- Pre-charge advocacy: Presenting exculpatory evidence early can sometimes persuade prosecutors not to file charges or to reduce them.
- Motion practice: Challenges to the sufficiency of the complaint, motions to suppress digital evidence, or motions for a required finding of not guilty at trial.
- Negotiation: Many cases resolve through continuances without a finding (CWOF), reduced charges, or pretrial probation when intent is weak.
- Trial: When necessary, focusing the jury on the high burden of proof and the missing element(s).
Bottom Line
Identity fraud cases often look stronger on paper than they are in court. The specific intent and authorization requirements give defendants meaningful opportunities to fight the charges successfully. Early legal representation is critical—waiting can limit options and make it harder to gather favorable evidence.
If you or a loved one is under investigation or has been charged with identity fraud in Massachusetts, contact Criminal Defense Attorney William J. Barabino today for a confidential consultation.
Call 781-393-5900 or visit www.williambarabino.com to discuss your case and begin building a strong defense.
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