Harrisburg/York PA Criminal Defense Attorney Reflections: Prosecutors Change Date of Alleged Sandusky Assault and Open Door for Defense to Attack Credibility of Its Investigation & Witness(es)

When the original grand jury presentment against Jerry Sandusky was released, it referenced an alleged sexual assault of a young boy in a shower that was witnessed by former Penn State assistant football coach Mike McQueary on March 1, 2002, the Friday before Spring Break. However, the prosecution has now filed an amendment changing the date of the alleged assault to February 9, 2001.

This raises questions: Is this the break that the defense has been waiting for and the prosecution’s case will fall like a house of cards? Or, Is it simply the product of mistaken recollection influenced by the passing of time and an immaterial inconsistency at best?

Certainly, the prosecution would argue the latter. However, this revelation impacts key aspects of the prosecution’s criminal case against Sandusky.

First, it has been reported that the prosecution had the ability to proceed with charges against Sandusky on accusations made by one of the alleged victims earlier than what they did. Instead, likely from a strategic standpoint, the prosecution elected to continue their investigation and wait to file charges until multiple victims were identified. It would be argued that 10 victims with similar accusations are more credible than a single, isolated allegation by one victim. Further, it has enabled the prosecution to argue that the number of the alleged victims along with the thoroughness of the investigation makes the accusations more credible than not.

However, by changing the date of an alleged incident to more than a year earlier and a time frame inconsistent with Spring Break, as had been previously purported, the prosecution has admitted they got it wrong and it detracts from the credibility of the investigation as a whole. From the outside looking in, as a juror would be called upon to do, it would be reasonable to ask: “What else did they get wrong?” Once the credibility of the investigation itself is called into question, the inference of credibility based upon the total number of victims can also be called into question because they are a product of that investigation.

Second, it has been reported that the date change relates to allegations involving the purported observation and testimony of Mike McQueary, who could be considered an integral part of the prosecution’s case against Sandusky because he is the only available independent witness without an apparent motive to fabricate his story. Again, it has been reported that he testified that the incident he observed occurred in March of 2002 on the Friday before Spring Break. Now, with the date change, it places the allegations a year and one month earlier at a time inconsistent with Spring Break – key and specific details that have seemingly assisted him in recalling an event that occurred years earlier. If these specific details are wrong, what else did he mistakenly recall? And, was his recollection and that of others impacted by the investigation?

In the end, you have 2 key aspects of the prosecution’s case, the investigation and Mike McQueary, that had positively impacted the credibility of the accusations and now are called into question by changing the date of one of the alleged incidents. Without physical and other direct evidence, this case is won or lost on credibility. With this change, the prosecution’s case just lost a measure of credibility.

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