Russell Hebets Nov. 15, 2011

On Nov. 14, Jerry Sandusky, the former Penn State defensive coordinator accused of molesting 8 young boys, sat for a phone interview with NBC’s Bob Costas to discuss the allegations. He did this with the blessing of his attorney, who also sat for the interview. During the interview, Sandusky denied the substantive allegations of rape and unlawful sexual contact, but he did acknowledge that he showered with young boys, and while doing so, would “horse around” with the boys, whatever that means. He also admitted that he would hug the boys and touch their legs while showering. He specifically claimed that one of the principal allegations- that he sodomized a 10 year old boy in a shower and was seen doing so by a graduate assistant- was patently false.

This interview intrigued us as criminal defense attorneys, because Sandusky effectively waived his Fifth Amendment right to remain silent in talking to the media. He made admissions in the interview that are clearly incriminating and those statements can be used against him. The prosecution will be able to play the interview to the jury at his trial.

Even though Sandusky didn’t necessarily confess to his charged crimes, he certainly admitted to doing things that are at a minimum inappropriate, if not illegal. He also admitted to being in situations where he was alone and naked with young boys in a shower, which is now something that the prosecution doesn’t need to prove. Remember that the burden of proof in any criminal case is 100% on the prosecution, and that Sandusky doesn’t have to prove his innocence; in fact he doesn’t have to present any evidence of any kind. He can simply attack the credibility of the state’s case and argue that it hasn’t been proven beyond a reasonable doubt.

In this case, the state’s burden of proving these allegations could be more difficult than people think. These allegations are several years old, and it is quite possible that many of Sandusky’s alleged victims may not be located by the authorities, or may express reluctance to cooperate with the investigation. These types of cases also typically lack eyewitnesses and forensic evidence, so often the case will turn on the credibility and availability of the victim. In short, he should not have made any statements at all. In 99.9% of all criminal investigations, the safest course of action you can take is to keep your mouth shut, and while we don’t have the benefit of being privy to all of the details of the case, we see no exception here.

It’s quite possible that Sandusky and his attorney felt that they needed to say something- anything. After all it is pretty clear that the court of public opinion has already convicted him of his alleged crimes. The defense team may have felt they needed to push back and remind the public that Sandusky is presumed innocent until proven guilty at trial. This case will probably conclude with one of the most high profile trials we have seen in years. However, Sandusky could have continued to maintain his innocence through his attorney, rather than agree to a potentially incriminating interview with the media. We shall see what, if any, ramifications come out of his decision to speak out, but at the moment it appears to have been a bad idea.