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Evidence of Embezzlement

The burden of proving an offense of embezzlement is upon the prosecution.  The prosecution must prove embezzlement beyond reasonable doubt[i].  Each element of embezzlement must be proved beyond reasonable doubt[ii].

In order to punish a defendant for embezzlement, the prosecution must prove the following:

  • that the defendant was entrusted with a property by the property owner in the course of his/her employment or office;
  • that the defendant wrongfully misappropriated the owner’s property for his/her benefit; and
  • that the intention of such misappropriation was to deprive the property owner from the property[iii].

A defendant cannot be convicted for embezzlement if both possession and property title have passed to a defendant prior to the alleged conversion[iv].  If the prosecution fails to produce substantial evidence about the guilt of a defendant then the court will acquit a defendant.  Evidence that is sufficient to prove the guilt of a defendant largely depends upon the facts of a case and the relevant statute dealing with embezzlement.

A prosecution need not prove financial loss to the property owner.  However, in some cases, courts have held that evidence about the financial condition of a defendant at the time of embezzlement is admissible in evidence.  For example, the fact that a defendant had spent more money than his/her income after embezzlement can prove fatal for a defendant.

Embezzlement can be proved either by direct evidence or circumstantial evidence.  Circumstantial evidence as to the act and intention to commit embezzlement can be considered from the following facts:

  • that the defendant was alone in the office when the misappropriation took place;
  • that the defendant’s financial condition changed after the alleged misappropriation;
  • that the defendant was in illegal possession of the property that is alleged to have been misappropriated; and
  • that the personality of the defendant has changed after the misappropriation.

Intention to defraud a property owner can be proven beyond a reasonable doubt either by direct evidence or circumstantial evidence that shows the fraudulent intention of a defendant[v].

[i] Medrano v. Quarterman, 2008 U.S. Dist. LEXIS 74374 (S.D. Tex. Sept. 26, 2008)

[ii] State v. Van Tuyl, 132 Wn. App. 750 (Wash. Ct. App. 2006)

[iii] State v. McLean, 209 N.C. 38 (N.C. 1935)

[iv] People v. Robinson, 107 Cal. App. 211 (Cal. App. 1930)

[v] State v. Foster, 17 Del. 289 (Del. Gen. Sess. 1898)

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