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When appealing a verdict after a jury trial, a criminal defendant must have specific reasons for the appeal. In Sandusky’s case, his lawyers no doubt will appeal on multiple grounds.

Even if successful, a Pennsylvania appellate court would not reverse his conviction and allow him to walk free. Rather, Sandusky would be granted a new trial.

Here are the top two grounds for appeal in the Sandusky case:

1. Denial of the defense motions for a continuance

Likelihood of success on appeal: slim.

Sandusky’s lawyers requested multiple continuances of the trial, citing reasons such as volume of documents and a scheduling conflict. In fact, during jury selection, Sandusky’s lawyers attempted to withdraw from the case, claiming that they were ill-prepared.

A seven month time frame from arrest to trial is certainly a quick and speedy resolution to any case. Criminal cases can take over a year from time of arrest to trial, and most criminal cases do not involve allegations of multiple victims over a lengthy period of time. Nonetheless, Sandusky’s lawyers were privately retained as opposed to being public defenders. Judges are more inclined to grant continuances to public defenders who have high case loads and decreased access to resources such as investigators or experts. In addition, Sandusky had two lawyers, not one. On appeal, it is highly unlikely that Sandusky will be given a new trial based on the fact that the trial judge denied his lawyers’ requests for continuances.

However, Sandusky’s lawyers openly admitted that they were unprepared for trial. This may give Sandusky grounds to file a Post Conviction Relief Act (PCRA) claim, citing ineffective assistance of counsel. This claim is made in cases where a lawyer is so ineffective that no reliable finding of guilt or innocence could have taken place. PCRA claims, however, may only be filed after the direct appeal is denied. In other words, it would be many years before Sandusky’s PCRA claim would be filed. In addition, PCRA claims are hardly ever successful. The classic successful PCRA claim is a situation in which a defense attorney shows up drunk to trial or falls asleep during key portions of the trial.

2. Allowing hearsay testimony of a janitor who testified as to what another janitor said about seeing Sandusky abusing a boy

Likelihood of success on appeal: none.

Sandusky’s defense team sought to exclude evidence from a janitor who testified about what a now senile janitor told him in 2000. In 2000, a janitor reported seeing Sandusky engaging in oral sex with a child in the Penn State showers. The trial judge allowed another janitor to testify as to what the now senile janitor said about having seen that abuse. The defense team objected on grounds that the testimony was hearsay.

judge reviewing statute bookUnder Pennsylvania Rules of Evidence, hearsay is often admitted into evidence where that hearsay is deemed to be either (1) a Present Sense Impression or (2) an Excited Utterance. These are two common exceptions applied to the rule that hearsay evidence is inadmissible, or not allowed at trial.

The Present Sense Impression exception allows hearsay testimony so long as the statements of the declarant, here the senile janitor, were made contemporaneously with the declarant witnessing some thing or event. So, in Sandusky’s case, as long as the janitor made the statements immediately after having witnessed the abuse, the statements would be allowed under the Present Sense Impression exception.

In the alternative and more likely scenario, the appellate court would find that the janitor’s statements would be considered Excited Utterances. This exception requires a startling event and showing that the declarant made the statements while under the stress of the excitement. In Sandusky’s case, the janitor testified that the janitor who witnessed the abuse was shaking and upset. This clearly qualifies the statements as Excited Utterances under Pennsylvania Rules of Evidence. On appeal, Sandusky will not be granted a new trial as a result of inclusion of the janitor’s hearsay testimony.

Related Article: Civil Liability in School Sex Abuse Cases – What Claims are Usually Made

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Published: June 24, 2012