“Draft” Transcripts? Or the Better Originals?

March 26, 2012
By Hanging Out with Carl Gunn

For my first post on this blog, I thought I’d share an idea that comes out of an experience from a trial I did about 10 years ago. A Central District of California AUSA very reasonably provided me with an interpreter’s “draft” transcripts of undercover recordings of meetings between my client and an undercover agent. Those of you who practice in the Central District may recall that the United States Attorney’s office has a policy that it will provide these “draft” transcripts only if defense counsel – as the proposed stipulation in one of my recent cases was worded – “agree not to use such draft transcripts for any purpose in any official proceeding in this case, including but not limited to cross-examining any witness at trial, presenting the drafts as transcripts whose accuracy was offered [sic] by the government, and/or using the draft transcripts at sentencing.” The AUSA who provided the transcripts in my case was apparently unaware of this policy and didn’t seek such a stipulation. I was then able to use the “draft” transcripts to cross-examine the interpreter at trial, which became rather interesting when the “final” transcripts got worse (as they often seem to) and it was revealed that many of the adverse changes were made by the interpreter in response to suggestions by government agents – agents from the very same government agency that provided her translation agency with significant business. A transcript of the cross examination showing how the “draft” transcripts were used to challenge the “final” transcripts is linked here.

This turned out to be a one-time opportunity, however, because AUSA’s in my subsequent cases weren’t unaware of the office policy like the AUSA in this earlier case had been. These later AUSA’s sought to – ahh, what verb to use, maybe “extort”? – the standard stipulation from me and told me I’d have to choose. Either I wouldn’t get the “draft” transcripts at all or I’d get them but have to restrain myself when the translator made them worse in response to the suggestions by the agents from the same government agency that paid her.

This didn’t sit well with me. First, I thought the jury ought to know things like why changes were made. Second, what changes were made and why they were made actually did seem to be relevant. Third, doing the cross examination had been fun.

So I did what all good public defenders and defense lawyers do when the government says, “You can’t have that!” I said, “Says who?” Then – because this is the next thing good public defenders and defense attorneys do after saying, “Says who?” – I went out to look for who, if anyone, said anything one way or the other about this.

And what I found was very interesting. First, it was interesting that there wasn’t very much to find; in particular, there were no court of appeals cases on the question at all. Second, in the cases I did find, there was some support for my position that the defense is entitled to so-called “draft” transcripts. I found there were district court cases written by two different district judges in Illinois, one of whom agreed with my position that the defense is entitled to “draft” transcripts without any stipulation and the other of whom disagreed. The judge who supported us reasoned that the transcripts were written statements discoverable under former Rule 16(a)(1)(A) (now Rule 16(a)(1)(B)) of the Federal Rules of Criminal Procedure. The judge who went against us didn’t say, at least expressly, that she disagreed with this, but reasoned that the transcripts weren’t relevant because of the general rule that it’s the tapes that are the actual evidence and the transcripts are just to help the jury in listening to the tapes.

So what does a good public defender or defense lawyer do next? File a motion, of course. The most recent version of the motion I’ve filed on this question is linked here. It’s far too long to reproduce in a blog post, but you’ll see the key cases are United States v. Finley, No. 87 CR 364-3, 4 & 6, 1987 WL 17165 (N.D. Ill. Sept. 3, 1987) and United States v. Shields, 767 F. Supp. 163 (N.D. Ill. 1991) – which are both written by the judge who agrees with the defense position – and United States v. Bailey, 689 F. Supp. 1463, 1469-70 (N.D. Ill. 1987) – which goes against the defense position. Even Bailey isn’t that bad, though, because its rationale was that it’s not the transcripts of the tapes, but the tapes themselves – which in that case were in English – which are the evidence and the transcripts are only aids to the jury’s understanding. This rationale doesn’t extend to foreign language recordings because the general rule that the tapes are the evidence and the transcripts are only aids to the jury’s understanding doesn’t apply to foreign language recordings; rather, it’s the transcripts that are the admissible evidence where the tapes are in a foreign language. See, e.g., United States v. Armijo, 5 F.3d 1229, 1234-35 (9th Cir. 1993).

So where does this leave us? It seems like there’s a good, solid argument – supported by at least some authority – that we’re entitled to the “draft” transcripts without a stipulation. And maybe a better word than “draft” is “original.” Let’s tell the judges that we want the “original” transcripts, whatever the government may want to call them, not the government’s “new and improved” version. Especially if that “new and improved” version got improved by the government agents as much as the translator.