Los Angeles County Juvenile Defense | Law Offices of Jerod Gunsberg

Prosecutors across the country are beginning to bring criminal charges in cases where students have been accused of cheating on standardized tests.

The most publicized comes out of New York State.  In November 2011, two students turned themselves in after being charged criminally for receiving payments to impersonate other students who were taking the ACT or SAT examinations.

Michael Pomerantz, 18, and an unidentified teenager turned themselves into Nassau County prosecutors before being taken to district court for arraignment. Pomerantz is one of five current or former students at Great Neck-area public and private high schools charged with accepting payments of between $500 and $3,600 to impersonate other students on SAT and ACT college entrance exams.

More recently, hundreds of high school seniors who attend a highly regarded high school in Dallas, Texas are also being accused of cheating.  According to the Huffington Post more than 200 students are implicated.

Now, officials at the southeast Houston Clear Creek Independent School District are investigating how around 200 students at Clear Lake High School acquired test answers before the exam in December.

Educators at Clear Lake realized that about a third of the exams had identical answers. As a result, administrators nulled all 600 tests, and offered the students two options: take the test again or have their final grade calculated without a final exam grade.

It is unclear whether any of the Texas students will be facing criminal charges.  These cases do, however, raise the question of how similar incidents might be treated under California law.

The short answer is that high-school students who cheat on standardized tests in California could be charged with several crimes, including felonies.  The most obvious charge would be for forgery, which is defined in section 470 of the California Penal Code.  In addition, prosecutors could bring charges for False Impersonation, which is defined by Penal Code section 529, as follows:

529.  Every person who falsely personates another in either his
private or official capacity, and in such assumed character either:

1.  Becomes bail or surety for any party in any proceeding
whatever, before any court or officer authorized to take such bail or
surety;

2.  Verifies, publishes, acknowledges, or proves, in the name of
another person, ANY written instrument, with intent that the same may be recorded, delivered, or used as true; or,

3.  Does any other act whereby, if done by the person falsely
personated, he might, in any event, become liable to any suit or
prosecution, or to pay any sum of money, or to incur any charge,
forfeiture, or penalty, or whereby any benefit might accrue to the
party personating, or to any other person;
Is punishable by a fine not exceeding ten thousand dollars
($10,000), or by imprisonment in the state prison, or in a county
jail not exceeding one year, or by both such fine and imprisonment.

Emphasis added.

There are two aspects of the definition of false impersonation that are especially problematic as they apply to cases of alleged cheating on standardized exams.  First, the crime applies to conduct that is private.  Thus, the fact that the SAT is created and administered by a private company would appear not to matter.  Second, false impersonation is broadly defined to include any written instrument; prosecutors would likely argue that the exam itself is the written instrument.  Moreover, any person who was deemed to have benefited from the alleged cheating could be charged with entering a conspiracy to commit false impersonation.

The recent cases in New York and Texas suggest that prosecutors are less likely to view cheating on exams as purely private matters to be settled between the schools and the students.  Whether they realize it or not, California students who are caught up in allegations of cheating on exams may be taking legal risks that they and their parents often do not foresee.

One of the toughest things I see as Los Angeles juvenile defense attorney is kids getting arrested and charged with felonies for things that could be resolved in school.  For example:  A kid gets in a schoolyard fight, the school dean overreacts and calls the school police officer, the child gets arrested and the DA files a felony.  I’ve seen this happen time and again to kids who are otherwise trouble-fee:  Kids who are “A” students, involved in sports or other after school activities, have no problems at home,  get charged as felony assault cases.

I’ve also seen this happen with kids who bring tools to school and are charged with possession of a weapon.  These are all incidents that could have and should have been resolved at the school level, but for whatever reason were escalated to involve the police and ultimately, the courts.

So what to do if your child is caught in this situation?  The first thing you need to do is deal with the reality of the situation.  This case is NOT going to go away on its own.  You are not going to be able to go into court and “explain things to the judge” in order to get the case dismissed.  It simply does not work that way. To even have a shot at getting rid of the case and avoiding your child from admitting anything, you need to act quickly.

First, you need to contact an attorney who knows what he or she is doing in juvenile court (read more about that here).  There are ways to “walk back” a case so it dos not get filed and is instead handled through an informal diversion program. This usually requires workign with the attorney you hire to put together a presentation for the DA’s office showing who your child is: Report cards, certificates of achievement, letters of support from teachers, community members, family members, and family friends.

Your lawyer will then contact the DA’s office in an attempt to prevent the case from being filed.  Even if this is not successful and the DA’s office does file a case, at least the groundwork is laid for your child’s attorney to make a pitch to the judge to handle the case informally.   Sometimes the DA can even be prevailed upon to recommend diversion even after the case is filed.  It all depends on the facts of each individual case.  Every case is different.

Bottom line:  If you have a good kid who got caught in a bad situation, be proactive, contact a qualified attorney as soon as you possibly can.

Obviously, this is a blog promoting my law firm and this is intended as general information and not specific legal advice.  If you would like to contact me to discuss your child’s specific case. Please call The Law Offices of Jerod Gunsberg for a free consultation at (310) 210-0744.