Russell Hebets Dec. 13, 2011

Jerry Sandusky was back in court this morning for his preliminary hearing. A preliminary hearing is a court proceeding in which the prosecution is required to prove to a judge that they have enough evidence to proceed to trial. Procedurally this means that witnesses to Sandusky’s alleged offense would be required to testify under oath, and those witnesses would be subject to cross-examination from Jerry Sandusky’s attorney, Joe Ameldola. Sandusky and his attorney shocked a crowded courtroom when they elected to waive Sandusky’s right to a preliminary hearing. The million dollar question is: was this a smart move?

Before we get into that answer, let’s get the eventual outcome of the preliminary hearing out of the way. From the defense standpoint, it is a loser. The bar on a preliminary hearing is low, and the prosecution would definitely have been able to present enough evidence to move the case forward to trial. No amount of fancy legal footwork would change that outcome. At the end of the day Jerry Sandusky would still be moving on to trial regardless of the decision on the preliminary hearing.

So, was the waiver a good idea? Let’s start with the pros of going through a preliminary hearing as a defendant. Far and away the most compelling reason to go through a preliminary hearing is that the defense would have an opportunity to cross-examine the prosecution’s witnesses. It’s tough to underestimate the value of this. Joe Ameldola would literally have a free dry run to question all of Sandusky’s principal accusers. Want to know whether any alleged victims are planning to file a civil monetary suit? Just ask. Want to find out if there are inconsistencies with the times or places of the alleged violations? Just ask. Any answers to any relevant questions would be made under oath and on the record, meaning that the witnesses would be held to those answers in a subsequent trial.

OK, so Sandusky screwed up by waiving the preliminary hearing, right? Not so fast. There are some pretty compelling reasons to waive a preliminary hearing in this case. First, the testimony that would be given in a preliminary hearing would create a media circus. The lurid details of child sex assault in this high profile case could easily create a mountain of damaging pre-trial publicity. Remember, the defense doesn’t put on a case at a preliminary hearing, so all of the testimony would be solely from the perspective of the prosecution. There are other small benefits of waiving a preliminary hearing such as keeping the lines of communication open with the prosecutors for a potential plea, and not tipping your hand and revealing your eventual defense at trial. When you add these benefits up, the waiver doesn’t look so silly.

Ultimately an outside legal observer can only speculate as the value to assign each of these factors. At first glance it is pretty tough for a defense attorney to pass up on a free shot at witnesses on a case of this magnitude. Despite that, Joe Ameldola clearly knows more than we do about the case. At the end of the day there is no cut and dry answer. Jerry Sandusky can only hope that his attorney knows what he’s doing.