During the Sandusky trial, MaleSurvivor Communications Committee Chair Thomas Hodson (who is himself a former attorney, trial judge, and is now a journalist) will be sharing with us some helpful explanations of the stages of a criminal trial. Our hope is that sharing this information here will help people better understand what is going on behind the scenes, and eliminate some of the confusion and uncertainty that will inevitably come up. Please follow our Twitter (@malesurvivorORG) and Facebook pages for more information and reactions as well.


Sandusky Trial – Burden of Proof and Trial Strategy

In every criminal case, the state has the burden of proof and that fact, alone, can help mold the trial strategy of the prosecution and the defense.

Throughout the trial, legally, the defendant is presumed to be “not guilty” unless or until the state proves the defendant guilty by a unanimous jury. This is called the “presumption of innocence” and it is the foundation of our criminal justice system under the Constitution.

In a criminal matter… to obtain a conviction, the state must prove the defendant guilty beyond a reasonable doubt. Because in a criminal case a convicted defendant may lose his or her liberty, this standard of proof is the highest required by law in any legal matter. Later in the trial, we will examine the exact definition of proof beyond a reasonable doubt…but suffice it to say for now, it is a monumental burden.

This is further complicated by the fact that a verdict of guilty must be agreed upon by a unanimous jury. In short, all 12 members of the jury must find the defendant guilty before he is convicted of anything.

During the trial, this high burden of proof means that the state can hold nothing back. The prosecution must present the strongest case possible with the most convincing witnesses. That is why in the early stages of testimony in this trial that the state is presenting its victims to provide persuasive testimony from the outset of the trial.

It also is why the state has not spared any emotion. Some of the young men testifying have had highly emotional presentations – even to the point that some jurors were crying. That is designed by the prosecution to have the greatest impact.

It is a common rule-of-thumb in trial work that juries remember the first witnesses in a case and the last ones and have a tendency to forget those in the middle…so strong witnesses usually lead off the state’s case and conclude it.

While the state must prove every element of each offense beyond a reasonable doubt, the defense is not required to prove anything. The primary strategy of every criminal defense is to raise reasonable doubt in the state’s case. The defense may be able to do that by attacking the credibility of the state’s witnesses through cross-examination buttressed by presenting its own witnesses to counter the state’s assertions.

The defendant is NOT required to testify and the judge will instruct the jury that they may not draw any conclusion from the fact that a defendant remains silent…Again, the defense need not prove anything.

Since that is the case, the defense, in a case such as this, is implementing three strategies simultaneously: 1) to convince all 12 jurors that the defendant is “not guilty,” 2) to create enough doubt in the state’s case that a unanimous verdict cannot be reached, 3) to create “reversible error” in the record so that the defendant can win his case on appeal.

We will discuss each of these strategies separately in future explanations. But, for now, please know that the defense is trying desperately to raise doubt in the state’s case. If it does, then the jury would not be able to convict.

For convictions, it is up to the prosecution to figuratively slam that door on the defense by presenting overwhelming evidence – laced with true emotion and holding nothing back.