The impact of Paterno’s death on the Penn State sex scandal and cover-up

The death of Joe Paterno has had an enormous effect on the Penn State family. His death will also have an impact on the Penn State sex scandal and cover-up. Paterno’s testimony was vital in the prosecution of Penn State Athletics Director Tim Curley and former Senior Vice President for Finance and Business Gary Schultz.

Paterno testified under oath before the grand jury that Mike McQueary came to his home on a Saturday morning in March 2002 to tell him he had observed former assistant football coach Jerry Sandusky having inappropriate sexual contact with a young boy in the locker room showers at the Penn State football facilities. Paterno testified that the next day he reported the information to his direct superior, Tim Curley.

The Sixth Amendment provides that a defendant has the right, pursuant to the Confrontation Clause, to see and cross examine witnesses against them. The U.S. Supreme Court has held that “the right to confrontation is a trial right” and “[n]ormally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses.”

"The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination."

Paterno will be “unavailable to testify” and was not subject to cross-examination in front of the grand jury.

Crawford v. Washington, 541 U.S. 36 (2004) is a landmark Confrontation Clause case holding that "testimonial" statements of an unavailable witness violated the Confrontation Clause unless there was a prior opportunity for cross-examination.

Leaving open the definition of "testimonial" evidence but noting "testimonial" statements at minimum includes statements made to law enforcement officials engaged "in the production of testimony with an eye toward trial" such as "affidavits, custodial examinations, . . . affidavits, depositions, prior testimony, or confessions."

The lack of testimony from Paterno could be both good and bad for the defense. If it is admitted without cross-examination defense counsel will not to be able to explore any additional information known to Paterno or explore any weaknesses in his testimony.

It may be helpful to the defense in that “it is what it is.” Any shortcomings in the testimony will not be able to be rehabilitated by the prosecution. For instance, if the grand jury testimony is not clear as to what exactly Paterno conveyed to Curley and Schultz in terms of the nature of the contact between Jerry Sandusky and the child—there may be some doubt about their responsibility. All they need is a reasonable doubt.