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The Defense Rests In The Sandusky Case…Leaving Questions About Unusual Defense Strategies

The trial of former Penn State assistant coach Jerry Sandusky has moved quickly … with each day seeming to bring a new question in terms of whether the defense has done the right thing for their client in this complicated case.  Yesterday’s news that Sandusky would not take the stand in his defense capped off a number of hotly-debated defense strategies taken in this case – which, with closing arguments beginning today, has the world watching as to the fate of Jerry Sandusky … and analyzing the strategies of his defense team.

In looking back at how this unusual case has played out (both in the courtroom as well as the media), perhaps the most unusual aspect is the much-talked-about NBC News interview that Sandusky did with Bob Costas.  Millions watched as Sandusky (with his attorney’s permission) did damage to his case by this interview through his questionable (and potentially incriminating) statements.  And, as if the interview itself wasn’t bad enough for Sandusky’s case, there was almost more bad news for Sandusky’s defense team earlier this week – when prosecutors considered seeking to use unaired portions of the interview in their case against Sandusky.  According to an MSNBC report and shown on Monday’s NBC Nightly News, this unaired material included an exchange about Sandusky’s work with young people where Sandusky said, among other things, “I didn’t go around seeking out every young person for sexual needs that I’ve helped.”

Luckily for the defense, this unaired portion of the Bob Costas interview didn’t end up being admitted into evidence this week.  However, the interview itself – and the fact that it could have played a major role in the legal proceedings of this complex case – brings to light a critical issue in criminal law concerning the Fifth Amendment Right against Self-Incrimination.  Many would believe that when someone is interviewed about something that may incriminate them, they must be advised of their “Miranda Rights” (to remain silent, have an attorney, etc.).  However, when speaking to non-law enforcement members such as the media (as in the Sandusky-Costas interview) you are NOT entitled to be advised of your Miranda Rights (nor, for that matter, are you entitled to them during police questioning if you are not in custody).  Statements or admissions to the media can be used against you in the courtroom.  Although it may also be deemed “hearsay,” there is an exception carved out in the law that says when criminal defendants make admissions about their conduct to a third party it can be testified to in court by that third party.

The Sandusky-Costas interview is a perfect example of why it is crucial that criminal attorneys advise their clients not to speak to anyone but their attorney about their case and the facts of their case, because it can potentially be used against them in court.  The mindboggling aspect of this case is that not only did Sandusky’s own lawyer let him do the interview with Costas, but his lawyer was actually present for the interview.  It would have been hard for him to object to the unaired interview portion coming into evidence when he facilitated it being available to the prosecution in the first place.

We now will wait to see what the jury decides – and whether the slightly unorthodox strategies, tactics and actions succeeded in Sandusky’s defense.  We know that the debate over this high profile case will continue and, as it does, we’ll continue to provide updates and our comments on this case here on our blog – as we continue to provide our clients with the experienced defense counsel needed in a wide variety of criminal cases.

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