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Aggravated Assault Charge Added Against Former Penn State Football Player

A former Penn State football player appeared at his preliminary hearing today facing a misdemeanor charge of Simple Assault, and he left facing a felony charge of Aggravated Assault to go along with the Simple Assault. While a person charged with a criminal offense has the right to challenge the charges at a preliminary hearing, prosecutors often issue inducements that cause defense attorneys to recommend that clients waive the preliminary hearing. Sometimes those inducements are positive, meaning tentative plea agreements or  anticipated resolutions are discussed, but in other situations, the prosecutor may use negative inducements, such as a threat to file additional charges or increase bail.

In this particular case, the Centre County District Attorney's Office made it very clear that an Aggravated Assault offense would be added if the defendant proceeded with a preliminary hearing. Holding true to their word, as soon as the case was called for a hearing, the prosecutor requested permission from the judge to add the felony assault charge, and the charge was added over the State College criminal defense attorney's objection. The former player went from facing a worst-case scenario of possibly having a misdemeanor assault on his record and facing a sentence of probation to a relatively short time in the county jail to a felony assault record that could land him in state prison if convicted.

What is the Purpose of a Preliminary Hearing?

The purpose of the preliminary hearing is to make sure that the prosecution has a minimal amount of evidence to justify the charges. While the burden of proof at trial is beyond a reasonable doubt, the burden of proof at a preliminary hearing is prima facie case, which basically means that it is more likely than not that a crime was committed and more likely than not that the defendant committed the crime. The burden is relatively low. It is also important note that this is a hearing and not a trial, so many of the rights that are applicable at trial are not  applicable at a preliminary hearing. The Pennsylvania appellate courts have held that constitutional rights, such as the right to confront witnesses, and evidentiary rules, such as the inadmissibility of hearsay, are relaxed at the hearing. Also, the judge's role is not to rule on credibility, meaning which witnesses are telling the truth. Instead, the judge is basically required to believe the prosecution witnesses and determine whether or not the prosecution has presented sufficient evidence to justify the charges. Because of the low burden of proof, lack of credibility determinations, and relaxed evidentiary standards, it is very difficult for the defense to obtain a dismissal of the charges at the preliminary hearing.

While a defense lawyer may not be able to have all the charges or the case dismissed at the preliminary hearing, the hearing does give the criminal defense attorney an opportunity to question witnesses and gauge the strengths and weaknesses of a case. If a witness is lying, the preliminary hearing gives the lawyer the ability to get that person's under-oath testimony and compare it with statements that the person may have written or given to the police in the past. The more inconsistencies between statements that are given by the witness, the better the case for the defense.

Should I Waive My Preliminary Hearing?

A lawyer can gain valuable information at the preliminary hearing, but that information can come with a cost, and there are situations in which a client should waive the hearing to avoid those costs. For example, in many routine  misdemeanor cases, such as State College DUIs, college students charged with Furnishing Alcohol to Minors for underage drinking parties, or Penn State students caught smoking marijuana in a campus dorm, preliminary hearings are waived so the client remains eligible to participate in the first-time offender program called ARD. If the client chose to have a hearing, the Centre County District Attorney would deny an application for admission into the ARD program. In such cases, the costs outweigh the benefits of having a hearing, so those clients waive the hearing.

In this particular case, the defense lawyer or his client must have felt that the benefits outweighed the substantial costs of having the hearing. At the hearing, the prosecution called one witness, and that witness testified that the former player was involved in an initial altercation with the victim, but that fight was broken up. The witness went on to testify that the player came back for a second round, and the victim was knocked to the ground and repeatedly kicked to the head. Based upon the testimony, the player could be convicted of Aggravated Assault. Repeated kicks to the head of a victim that is lying on the ground, and having those kicks come from a former Penn State offensive lineman, is clearly enough evidence from which a jury could find that the person had the intent to cause a serious bodily injury. Only time will tell whether the client was given good advice to have the preliminary hearing and thereby increase the exposure of the client from a misdemeanor to a felony case.

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