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Paterno's Death Causes Key Grand Jury Testimony to Be Inadmissible Under Sixth Amendment

Former Penn State football coach Joe Paterno passed away on Sunday, a victim of lung cancer. Paterno's legacy in the wake of the recent child sexual abuse allegations against one of his long-time assistant coaches, Jerry Sandusky, is still being written, but Paterno's death may have an immediate impact in one area, The New York Times reports: the ongoing prosecution against former Penn State athletic director Tim Curley and former university senior vice president Gary Schultz.

Curley and Schultz have been charged with failing to report to the authorities what they knew about a specific incident of alleged molestation that occurred in the shower of Penn State’s athletic facility in 2002, and also with allegedly lying to the grand jury. To summarize, Mike McQueary, a graduate assistant in 2002, reported to Paterno that he had witnessed a sexual assault involving Sandusky and a boy in the showers. Subsequently, McQueary testified to the grand jury, he also told Curley and Schultz about the sexual nature of what he had witnessed.

In his grand jury testimony -- his only sworn testimony in the case -- Paterno corroborated McQueary, testifying under oath that McQueary told Paterno that he saw Sandusky engaged in fondling or "doing something of a sexual nature" to a boy. Curley and Schultz, however, deny that McQueary told them that the shower incident was sexual in nature, which makes Paterno's testimony potentially important. After all, one former prosecutor told The Times, “[w]hy would he have told it to Paterno and not told them? McQueary becomes more credible when you hear Paterno tell his version of it...."

With Paterno's death, however, his grand jury testimony is no longer admissible. As The Times explains, Paterno was not subject to cross-examination in the grand jury proceeding, and using that testimony would therefore violate the Sixth Amendment, which ensures a criminal defendant's right "to be confronted with the witnesses against him."

Thus, unless prosecutors can introduce some other corroborating evidence, it now looks as though the key question of what McQueary told Curley and Schultz about the shower incident will come down to McQueary's word against theirs.

Posted by Bruce Carton on January 24, 2012 at 05:48 PM | Permalink | Comments (2)

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