Jerry Sandusky and his legal team waived his right to a preliminary hearing last Tuesday. I was a little confused to hear that Mr. Sandusky was even afforded the right to a preliminary hearing, as he was charged by an indictment from a grand jury. In Illinois, and the federal system, if an individual is charged with a felony by a document called an information, a criminal complaint written by the police or the state's attorney, the defendant has the right to have a judge determine if probable cause exists for that individual to be charged. This is done through a process called a preliminary hearing, or prelim for short.
However, if that same individual is charged by indictment from a grand jury, a group of citizens who say that probable cause does exist, that individual does not have the right to have a judge determine if probable cause exists and no preliminary hearing will be held. This intuitively makes sense. If there has been some sort of neutral body determining if probable cause exists for the charging of the crime, then the constitutional rights of the defendant have been satisfied. What I don't understand is why any individual would be entitled to a preliminary hearing after he has been charged by indictment from a grand jury.
A preliminary hearing is usually the defendant's first chance to hear the evidence that the state will present against him. The state will call witnesses, usually just one as hearsay can be relied upon at a prelim, to lay out the state's case in a very bare bones form. Despite the fact that I don't understand why Pennsylvania grants a right to a preliminary hearing after a grand jury indictment, I really don't understand Mr. Sandusky's attorneys waiving his right to a preliminary hearing. Any statements made by the witnesses that testify at the preliminary hearing can be used later to impeach the witnesses should they offer any inconsistent testimony. This would seem to be a very important thing for Mr. Sandusky, as the statements made by his accusers will constitute most if not all of the evidence in this case.
If Mr. Sandusky is honestly going to mount a defense beyond statements in the media that "he didn't do it." I think his lawyers should have exercised his right to a preliminary hearing. There was certainly no chance the judge would find a lack of probable cause in this case, as the evidence appears very strong and the burden the state must meet, probable cause, is so low, but to mount a real defense in a case based upon statements by alleged victim's it is an absolute necessity to build a record of any statements made by those individuals to possibly impeach them in the future.
It seems that Mr. Sandusky's lawyers are determined to try this case in the media, as they keep offering statements about what he was really doing in the shower with those boys. Give it up, guys. This case cannot be won in the media. Mr. Sandusky's lawyers must realize that the best possible outcome for their client is for him to become an OJ Simpson-like figure. A man who much of the public believes committed the murders he was accused of, but that the state was not able to convict. There will be no shining moment where Mr. Sandusky walks out of the courthouse a free man that the public believes was the victim of some sinister plot. His lawyers would do well to keep their mouths shut, give deference to the legal process running its course, and save their statements for the courtroom.
As always, nothing in this post should be considered legal advice. For legal advice, contact a criminal defense attorney in your area immediately.