Theft by deception is a form of fraudulent activity, with someone using deception in order to gain access to services or property. For example, if someone writes a check on a bank account that he or she knows is no longer open and uses that check to pay for a meal, that person is committing theft by deception. Courts take different views of this crime, depending on how much damage is inflicted upon the victim.
There are a number of ways in which people can commit this crime. It may involve creating information that is false or failing to correct false information, such as pretending to have professional certifications or allowing someone to think that such certifications are held. Likewise, failing to disclose information that could be relevant to a transaction or preventing someone from accessing relevant information are also forms of deception.
Using this deceptive information, the thief gains control of property or services from the victim. Theft by deception is different from an innocent mistake. In the example above, for example, if someone accidentally wrote a check on the wrong account and corrected the error as soon as it was realized, this would not be a crime. If, however, the person realized the mistake and did nothing, this would be considered theft.
This type of theft can involve an elaborately structured scheme that requires participation from accomplices, forging of documents, and other activities in order to support the story being created by the deception. It can also be much simpler. Some people are adept at using minimal resources for the purpose of deception. This reduces the risk that the crime will be uncovered and can also make the criminal harder to track. If, for example, someone does not have an accomplice, there is less likelihood of finding that person and working out a plea agreement that could allow police to pursue the mastermind of the scheme.
Advertising puffery is exempt from theft by deception laws. When advertisers use puffery, they make claims that are clearly subjective and would not be taken literally by a reasonable person. For example, when a hamburger joint says that it has “the best burgers in the world,” customers cannot claim that they were defrauded if they find an example of a better burger. If puffery is ambiguous, however, a court may determine that the advertiser is actually in the wrong.
