Jerry Sandusky, the former assistant football coach at Penn State waived his preliminary examination on charges of child molestation. His lawyer, Joseph Amendola said that the primary reason for waiving a preliminary examination was that the district attorney planned to ask for an increase in Sandusky’s $250,000 bail at the end of the preliminary examination. Certainly a judge may raise the bail at the preliminary examination. But most jurisdictions allow defendants, or their friends on behalf of defendants to put up property in lieu of bail. I suspect that Sandusky has friends or relatives that would be willing to pledge their property on his behalf. However, if Sandusky could not raise the bail he would have to sit in jail until the trial. Jail inmates are notorious for the treatment they give to suspected child molesters. It would be a very difficult incarceration for Sandusky.

While, in my experience waiving a preliminary examination is very rare, ¹ there may be good reasons to waive a preliminary examination in this case. First, Pennsylvania strictly limits cross examination at the preliminary examination. It does not allow the defense attorney to challenge the credibility of witnesses.

Sandusky has been indicted by the grand jury. The transcript of the grand jury proceeding will be available to the defense. Therefore Sandusky’s team is unlikely to get much in the way of discovery from the preliminary examination that they do not already have from the grand jury transcript.

Finally some of the victims were going to testify. While this may have given the defense a good look at them and what they are likely to say at trial, the enormous press coverage of the preliminary examination would no doubt sympathetically portray the victims. This would allow many people to judge the case prior to trial. As a result it would be hard to find a unbiased jury.

Thus the only people left in the dark is those of us in the public and we will just have to wait until the trial

Lindsay Lohan is in a difficult position. She is facing both a hearing on whether she violated her probation and a felony trial for grand theft. She is on misdemeanor probation for a third DUI. She could get up to a year on the probation violation since it is a third DUI with credit for the time she has done on prior violations and she could get up to three years in prison for the felony. More likely she will be placed on felony probation but she could do up to a year in jail as a condition of the probation.

As to the felony she is entitled to a trial where in order to convict her twelve jurors will have to find that beyond a reasonable doubt she is guilty of the grand theft. But on the probation hearing she is not entitled to a trial. She gets a hearing before a judge who can send her to jail if he/she finds by a preponderance of the evidence that she violated her probation.

Lohan has been offered a plea bargain which presumably ¹ will cover both the probation violation and the grand theft charge.

If she does not accept the plea bargain she is facing a hearing. The hearing will serve as both a preliminary examination in the felony case and a probation violation in the DUI. During the hearing the judge will be put to the difficult task of applying two different standards of proof. As to the probation hearing he/she will use a preponderance of the evidence standard. That means that to find her in violation of her probation the judge must find that there is more evidence that she violated her probation than there is evidence that she did not. But as to the felony the judge need only find that there is probable cause that she committed the felony to hold her for trial. ² Probable cause means that there is reason to believe that a crime was committed and that the defendant is the one that committed the crime. It is a much lower standard than preponderance of the evidence.

Furthermore the probation violation hearing and the preliminary examination have different evidentiary rules. Hearsay is admissible in the preliminary examination but not in the probation violation hearing. Thus a judge must keep track of what evidence comes in for what purpose.

The better practice according to the California Supreme Court is to have separate hearings for the two cases but at least according to the Associated Press article a single hearing will be held.

To make matters worse for Lohan, she could be sentenced immediately after the hearing to a jail term on the probation violation but the felony trial, even if she does not waive time could be ten weeks later. ³Thus she could be in jail prior to her trial and if she is found guilty at trial she could be sentenced to a jail period consecutive to the time she is doing on the probation violation. Of course by accepting a plea bargain she will be sentenced to only one period in jail for both the violation and the felony. She will not have to worry about a consecutive sentence. However she will lose her right to a trial.

Dr. Conrad Murray’s preliminary examination started yesterday in Los Angeles. He is charged with involuntary manslaughter in the death of Michael Jackson.

The preliminary examination is held to to determine whether there is sufficient evidence to to try Murray for Jackson’s death. In state courts in California it is a normal procedure in felony cases. ¹ It is expected to last over a week.

The District Attorney will try to put on sufficient evidence to convince the judge that there is probable cause to hold Murray for trial. ² Because the standard of proof is so low at a preliminary examination defense counsel rarely risk showing their hand at this stage by putting witnesses on the stand.

Murray is charged with involuntary manslaughter. Involuntary manslaughter is defined under California law as “the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” The district attorney is alleging that Dr. Murray “without due caution and circumspection” gave Jackson an excessive dose of the anesthetic propofol to help him sleep and then left him alone in the room, resulting in his death. In order to get a holding order the district attorney must introduce “some evidence” of each element of the offense. In this case they must show that there is evidence that (1) Murray committed an act, (2) which might cause an unlawful death, (3) without due caution and circumspection. But not much evidence is needed of each element and it is a relatively easy standard to meet. While the charges are sometimes changed at a preliminary examination it is rare that a case is dismissed at this stage. Generally district attorneys are able to meet their rather light burden and get a holding order.