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JOE PATERNO DEAD: How it Effects the Criminal Case

Joe Paterno is dead at 85. Penn State sex scandal coach died this morning after succumbing to lung cancer. According to news reports, Joe Paterno was diagnosed with lung cancer in mid-November. The diagnosis came after a follow-up visit to his doctor’s office for a bronchial illness.

There is no doubt in my mind that the stress imposed by the Penn State sex scandal played a significant role in Joe Paterno’s death.

Obviously I don’t say this directly. Rather, I am sure his immune system took a major dip while under the mental and emotional stress of the sex scandal. At his age, it is no surprise that an underlying illness, likely on the brink of explosion, broke the surface following a major emotionally stressful event.


From a criminal law perspective, this means that Joe Paterno will not be able to testify in any trials. At this early stage in the case, it is unlikely that he has even given a sworn statement in the form of a discovery deposition.

While I am not a Pennsylvania lawyer, the Florida Rules of Evidence do permit the perpetuation of a deceased witness’s sworn statement under very limited circumstances.

If this case were to go to trial and those circumstances were met, a transcript or a video (if one was made) of the statement would simply be admitted into evidence and presented to the jury.

However, one major issue this creates is the right to confrontation.

Because Joe Paterno is dead, he cannot be cross-examined by lawyers for the other side. This is why his recorded statements, such as those made to the media, will most likely never be used in trial.

If any recorded statement is ever admitted, it would likely only be in the form of a discovery deposition where he was subjected to cross-examination by the other side’s attorneys.

Given the relatively early stage of this case, it is unlikely that such depositions ever took place. Moreover, it is even less likely that if one did take place, he was cross-examined because discovery depositions are usually conducted by one party.

In my estimation, the only way Joe Paterno’s recorded statements will ever be admitted as evidence in court is if both sides motioned the judge for a statement to perpetuate testimony. When this occurs, the party calling the witness would do a direct examination and the opposing party would do a cross examination.

However, given the rapid onset and seeming secrecy of his illness, I would bet this was not done. I especially doubt prosecutors, who are known for weak legal skills, had the foresight to deal with Joe Paterno’s aging health.

From a defense lawyer’s perspective, this is why you let cases age when one of the star witness for the prosecution is an 85 year old man.

In any event, it will be interesting to see how this plays out in court.

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