Legal Blog

Preliminary Hearing Waived in Sandusky Sex Offense Case

December 14, 2011

In a surprise move this morning, Jerry Sandusky's attorneys elected to waive their right to the preliminary hearing that was set to take place just moments later in a Pennsylvania courtroom.

In waiving the hearing, the attorneys have now lost the opportunity to cross-examine the accusers that were prepared to testify.  His attorneys have stated that they did this in exchange for an agreement from the prosecutors not to re-arrest Sandusky in the event that additional accusers come forward.

The opportunity to cross examine an accuser at a preliminary hearing in a sex offense case is so rare that it is unbelievable that the defense would choose to waive this hearing.  Typically, preliminary hearings are not afforded to defendants out on bond so the fact that the hearing was taking place was extraordinary.  Also, hearsay is admissible at these hearings so very rarely does the defense have the ability to question the actual witnesses and alleged victims in the case.  The prosecution will ordinarily just call the investigators to testify as to what these witnesses/victims told them.  However, the prosecutors had decided a week ago to actually call the witnesses and alleged victims to testify at the hearing.  The reason for this decision was not known but I speculate that it was in an effort to prevent the defense from trying to subpoena them and avoid any appearance that the prosecution was trying to hide anything.

I strongly disagree with the defense strategy here.  First, cross examination of the alleged victims here would have enabled the defense to explore the evolution of their disclosures of abuse and learn about any factors or influences that could affect their credibility.  Second, the hearing would have secured for the defense a preview of the testimony at trial and given them an unprecedented amount of time to prepare their defense and cross-examination strategies.  Also, the preliminary hearing testimony would have enabled the defense experts to begin formulating opinions about the reliability of the alleged victims’ statements and theories as to why their accusations are not credible.  Lastly, the alleged benefit that the defense is claiming they received in exchange for the waiver does not appear to be valuable in light of the fact that Sandusky was quickly freed on bond the second time he was arrested.  Thus, there is nothing to suggest that a potential third arrest would have yielded a different result.

After defending over 100 sex offense cases in Georgia, I could not imagine a scenario where I would ever waive such a rare and golden opportunity.

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