Prosecutor Faces Ethics Investigation After Changing Court Transcript

Posted in General,Legal Ethics on January 12, 2015

First, what is a transcript? A transcript is a written copy of what people testified to in court. When one party loses in court, the party generally has the right to file an appeal to have a higher jurisdiction court review the decision. In many appeals, the appellate court does not hold a brand new hearing or trial, which is called a de novo review, but instead the court generally avoids having new testimony and only reviews the transcripts to consider the testimony that was presented at the prior court proceeding. In other situations, a defense attorney may use a witness’s prior under-oath testimony that is memorialized in a transcript to impeach or show changes in the witness’s current testimony. A transcript is obviously very important in every court proceeding, but transcripts are especially important in criminal cases when a person’s very freedom is at stake.

According to an article on the American Bar Association Journal website, a California prosecutor is being reviewed by the state attorney ethic’s board after the prosecutor altered a transcript in a criminal case. Not that every case is not serious, but this case involved accusations that the defendant had engaged in lewd or lascivious behavior with a child under the age of 14. Cases involving minors and children simply tend to be taken more seriously when compared to a drunken fistfight between some college students. The prosecutor modified the transcript to include an admission from the defendant, so the transcript reflected that the defendant actually admitted to committing the acts.

Prosecutor’s Excuse for Ethical Violation

Why would a prosecutor alter a transcript to include an admission from the defendant? Was the prosecutor trying to ensure that he won the case by cheating? The prosecutor claims that he was not trying to cheat but was instead doing it as a joke. I expect that everyone has told a joke that the person realizes should not have been done for various reasons, and hindsight is always 20/20. However, as a defense lawyer, I am not sure how altering a transcript and placing a person’s freedom in jeopardy could ever be deemed funny. Changing a transcript to reflect that the defendant admits to engaging in some lewd act with a child would appear to be appalling to anyone. As a parent, I cannot think of a more offensive accusation than engaging in appropriate sexual or lewd acts with a child. Simply stated, people do not joke around and call one another a child molester.

The prosecutor also raises his defense that the defendant’s rights were not actually violated. That may be correct because the defendant’s lawyer caught the alteration to the transcript and reported the violation to the authorities. The fact that the defense lawyer carefully reviewed the transcript and noticed the change does not change the fact that the prosecutor altered the transcript. The judge presiding over the criminal prosecution also did not find that the action of the prosecutor was harmless because the judge dismissed the charges against the defendant. Sounds like the judge felt that the prosecutor had clearly engaged in prosecutorial misconduct.

Even if this was a joke, the act of modifying the transcript should cause this prosecutor to be terminated and possibly punished by the licensing board. At a minimum, a prosecutor has a person’s liberty at stake, and a person that believes that altering a transcript in this manner is a joke should not have power over a person’s freedom. If the ethics board reviews the prosecutor’s history and feels that this act was a complete aberration of his behavior, then I would expect that they would impose a sanction that was deemed appropriate. Without knowing the attorney’s history, maybe he should not be disbarred, but what he did should result in his removal from the prosecutor’s office.