Why Waive?

December 13, 2011 8:04 AM

What is the point of waiving a preliminary hearing?

Why did Sandusky waive his right to a preliminary hearing? Is there a legal strategy to this, or does it (as it seemed through NPR's reporting) just help the victims by only requiring them to testify once?

posted by glaucon to Law & Government (15 answers total)

Best answer: A preliminary hearing is used to determine whether there is enough evidence to secure an indictment. For most criminal defendants, this is really important, because defense counsel may not actually know what the prosecution is going to be bringing to the table, let alone whether there's actually enough evidence to sustain the indictment.

But this is an unusual case, in that it's very high profile and a lot of what will probably wind up being testimony has already been published in the media. So the defense has a decent idea of what the prosecution is up to, and there certainly seems to be enough evidence out there to at least produce an indictment. The DA can produce at least two or three victims. That'll do it.

I'm betting his defense counsel just decided there wasn't much point in adding to the circus. There's no way Sandusky doesn't get indicted, so everyone is better served by focusing on those parts of the case which will be important.
posted by valkyryn at 8:13 AM on December 13, 2011 [2 favorites]

Best answer: I'm betting his defense counsel just decided there wasn't much point in adding to the circus.

Yeah, I think the last think they want is the victims rehashing their stories from the grand jury testimony that everyone has already heard anyway. The less exposure the victims get, the better for the defense, I suspect.
posted by Rock Steady at 8:37 AM on December 13, 2011

Best answer: This article does a better job than others I have seen of explaining the situation, including the defense attorney's reasoning for the waiver.
posted by The Deej at 9:31 AM on December 13, 2011 [1 favorite]

It is my understanding that one, of the probably many, reasons for waiving a prelim is to preserve the bond upon indictment. I work in the lovely world of criminal defense (not as an attorney), and have seen prelims get waived primarily for this reason, but The Deej's link gives a lot of detail.
posted by allnamesaretaken at 9:54 AM on December 13, 2011

It probably means a deal is in the works. If not, it could be a huge mistake. (Especially if this is the same lawyer that let Sandusky be interviewed by the media... what a fucking disaster that was.)

But it isn't as if the prosecution would fail to make its case -- that almost never happens at a prelim because the standard (basically probable cause) is so low. Rather, the big advantage of a prelim for the defendant is the ability to nail somebody down to a certain position. That lets you exploit inconsistencies in the evidence and impeach the witness at trial if/when they try to deviate to cure the inconsistency.

Now, here you have their grand jury testimony, so they've already taken a position, but it's not nearly as fixed as you can get it through cross examination.

As for adding to the media circus, if you can establish inconsistencies, that wouldn't necessarily be a bad thing. And there are always inconsistencies when you have more than a couple witnesses.

So unless he's cutting a deal, I think it's a mistake. But admittedly that's just a guess -- I haven't seen all the evidence, and I haven't talked to the client.
posted by mikeand1 at 10:26 AM on December 13, 2011 [1 favorite]

I'm guessing they don't want to "corrupt" the jury pool with more ugly information, which would emerge from the hearing.
posted by fivesavagepalms at 12:05 PM on December 13, 2011

I agree with Mikeand1. The waiver of the prelim in this case looks like a concession of the strength of the state's case. If you think your client has a strong defense, you're planning to go to trial, or witnesses lack credibility, you definitely want a preliminary hearing because it gives you testimony, under oath, which you can use as the basis for a motion to dismiss, a basis for a suppression motion, and a basis for impeachment of witnesses by prior inconsistent statement. (If witnesses are lying, they may not remember what they said at the prelim when it goes to trial a couple of years later.) Keep in mind that there is not nearly as much pre-trial discovery in criminal law as there is in civil law, so a preliminary hearing functions much like a deposition in a civil lawsuit.

If Sandusky's attorney thought this case was going to trial, he likely wouldn't have waived the preliminary hearing.
posted by jayder at 1:12 PM on December 13, 2011

Former US Attorney Andrew McCarthy writes about it here.
posted by Chocolate Pickle at 2:23 PM on December 13, 2011

McCarthy is wrong about a number of things (not unusual for him). For one thing, it is not "routine" to waive preliminary hearings. I've never waived a preliminary hearing. Yes, it happens, but more often than not, defense attorneys would much prefer to get the witnesses on record. (It's more likely to happen in states where there's no real witness because the rules of evidence let the cops put on a hearsay case; I'm not sure if Pennsylvania has that rule though.)

McCarthy is a former federal prosecutor, now a conservative commentator. I'll bet he never practiced criminal defense in state court.
posted by mikeand1 at 2:51 PM on December 13, 2011

It could well be strictly a media management ploy. He and his team probably woke up to the same thing I did, which was all the morning news programs spending a LOT of time on the case. That got shut down pretty quickly once the waived it.

I also wouldn't want to give the prosecution any more practice at presenting their case than was absolutely necessary.
posted by gjc at 5:48 PM on December 13, 2011

McCarthy is wrong about a number of things (not unusual for him). For one thing, it is not "routine" to waive preliminary hearings. I've never waived a preliminary hearing.

This is one of those things that depends on your locality.

Where I practice, it is absolutely routine to waive a preliminary hearing in state court. And you can't put on a hearsay case where I practice.

It's less common to waive the prelim on serious cases, but it still happens, a lot.
posted by jayder at 8:29 PM on December 13, 2011

mikeand1 -- surely you've had a case where your client was out of custody on bond, the state's witnesses failed to show at the prelim, the state would not be able to meet their burden of proof, but the state intended to present the case for indictment even if you got a dismissal for lack of prosecution. In that scenario did you not waive the prelim to preserve your client's bond pending indictment?
posted by jayder at 8:31 PM on December 13, 2011

^^^Nope. Here, the prosecution would just put on a hearsay case through the cop. There are times where we want to preserve the client's bond though -- you just ask the judge not to exonerate it.
posted by mikeand1 at 8:31 AM on December 14, 2011

In the jurisdiction I worked in, often the deal that was put on the table by the DAs was contingent on the waiver of a preliminary hearing. Waiving didn't necessarily mean that the defendant was going to plea, but if they didn't waive, then the DAs would not extend any more offers, and would take the case to trial. They implimented the strategy to cut down on the number of PHs they had to do, and it worked.
posted by craven_morhead at 11:42 AM on December 15, 2011

craven morhead, we cut the same deals where I practice. The mechanism for waiving the prelim and striking a deal in that situation is an "information," which bypasses the grand jury for an expedited resolution by guilty plea. If the defendant then declines to take the agreed-upon offer, the case is then sent back to the grand jury because there's a state constitutional right to prosecution only upon indictment by the grand jury.
posted by jayder at 1:12 PM on December 20, 2011