To listen to Joe Amendola, the attorney for embattled former Penn State coach Jerry Sandusky, in the weeks leading up to his Tuesday preliminary hearing, this was to be the first stages of the battle. Reportedly, his client was looking forward to exercising his right to confront his accusers in a public forum. Shockingly, the hearing did not go forward. Citing tactical considerations Sandusky’s lawyer waived the hearing and the matter is scheduled next for pre-trial discussions.
Pennsylvania follows a practice that had prevailed in Connecticut until the late ’70′s. When I first began to practice law in 1975 no felony prosecution could proceed to trial without a finding of probable cause by a judge, after an evidentiary hearing. Hearings in Probable Cause (HPC’s) were commonplace. Experienced lawyers differed in their approaches to such hearings. A defendant could elect to waive his right to a hearing. He remained clothed with the presumption of innocence and the matter moved toward trial. The growing crush of criminal business was a prime factor in the revisions to our practice that eliminated HPC’s in all but Class A felonies.
The necessity for the HPC derived from the Fourth Amendment’s requirement of a judicial determination of probable cause before a defendant could be held to answer at trial. In the instances where hearings went forward a finding of probable cause was almost a foregone conclusion. The state’s burden at this stage was to establish that reasonable grounds existed to believe that a crime had occurred and that the accused was responsible. That burden was met by the production of a scintilla of evidence. That standard differed significantly from proof beyond a reasonable doubt, the standard needed to convict.
In 1975 the U.S. Supreme Court decided Gerstein v. Pugh, ruling that the judicial determination of probable cause for a warrantless arrest did not require an adversarial hearing. Following that ruling sworn affidavits were appended to an arresting officer’s report. An in camera judicial review and a finding of probable cause was all that was needed. The HPC became superfluous.
HPC’s are still required for crimes punishable by life imprisonment or death. Before the practice changed an HPC was looked upon as a discovery bonanza. At that time Connecticut did not favor open, early discovery of the particulars of the state’s case. Witness statements could not be obtained prior to the completion of that witness’ testimony at trial. Having the opportunity to cross-examine a witness in advance of trial was a tactical bonus. Today defense lawyers are provided early access to the prosecutor’s file, eliminating the need for a dry run-through of the state’s case at a preliminary hearing.
Many lawyers will opt to waive the HPC, particularly in street crime situations. If a critical witness testifies at the HPC he is subject to full cross-examination. There are two important considerations for the lawyer. First, the witness’ testimony has been preserved and since he was subjected to cross the defendant’s Sixth Amendment confrontation rights are satisfied. If that witness fails to appear at trial the recorded testimony is admissible in his stead. Second, exposing the witness to the theories of a defense lawyer’s cross only allows the cunning, street-wise witness to better prepare to field the examination at trial. Given that probable cause is so easily established, little is often gained from conducting the hearing.
Amendola claimed the waiver was based on tactical reasons. He then spoke for an hour outside the court, castigating some of the victims, claiming they are motivated by the chance at big dollars in lawsuits against the University. If there is such a point to be made it could have been done effectively through an aggressive cross of the alleged victims. Amendola chose a press conference instead. His client would be well served if Amendola read the Rules of Professional Conduct in his state: “Rule 3.6. Trial Publicity. (a) A lawyer who is participating . . . in the . . . litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
Taking on the complainants in a press conference is like only playing a football game in the locker room.
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