The recent trial and conviction of former president Donald Trump in New York has directed national attention to the white-collar crime of falsification of business records. The high-profile case underscores the critical importance of prosecutors proving intent to defraud or harm as a pivotal element in securing a conviction. It also points out the need for defendants to make a strong case to disprove such intent.

Similar crimes are on the books in most states. In Texas, Penal Code Section 32.47 makes it unlawful for an individual to destroy, remove, conceal, alter, substitute or otherwise impair the verity, legibility or availability of a writing, other than a governmental record, with the intent to defraud or harm another.

To secure a conviction under Section 32.47, prosecutors must prove several key elements beyond a reasonable doubt:

1. Defendant’s act — The defendant must have engaged in specific acts of destroying, removing, concealing, altering, substituting or otherwise impairing the records. Merely planning or intending to commit the act would not suffice.
2. Nature of the writing — The law applies to any form of recorded information, such as financial statements, business records or electronic documents. However, it explicitly excludes governmental records, which are covered under different statutes.
3. Intent to defraud or harm — Intent to defraud generally means an intent to deceive or cheat, typically to gain some form of financial or personal benefit. Intent to harm implies that the defendant meant to cause some form of injury or loss to another person or entity.

Proving intent is the most challenging aspect for prosecutors since it must be done by means of circumstantial evidence. This can consist of patterns of behavior, inconsistencies in the defendant’s statements or evidence of motive, such as financial gain or avoidance of legal obligations.

In Trump’s trial, for example, prosecutors presented a compelling narrative that linked falsification of records to an intent to mislead or defraud public officials. In New York, falsifying records is a felony if done with an intent to conceal the commission of another crime, even one that is not charged. Prosecutors argued that Trump — by disguising reimbursements of hush-money payoffs as counsel fees — was concealing a conspiracy to promote his 2016 election campaign by unlawful means. 

The Trump case demonstrates the complexities involved in prosecuting the white-collar crime of falsification of business records. At the same time, it highlights the need for white collar defense attorneys to challenge the prosecution’s evidence of intent by demonstrating that any false entries were the result of oversight, misunderstanding or other non-criminal factors.

At Tylden Shaeffer, Attorney at Law, P.C. in San Antonio, I represent individuals and companies in white-collar criminal cases throughout southern Texas. Call (210) 227-1500 or contact me online to arrange a free initial consultation.