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Sandusky lawyer flummoxed by witness' memory lapse

Mike McQueary's father failed to recall his own earlier testimony that was intended to corroborate his son's testimony at Jerry Sandusky's trial. NBC's Michael Isikoff reports.

ANALYSIS

It was an odd moment in court Wednesday when Jerry Sandusky's lawyer was shut down while cross-examining Mike McQueary's father.

Wes OliverWes Oliver is a professor at Widener University who teaches criminal law and procedure. This fall he will join the faculty of the Duquesne University School of Law as a professor and director of the school's criminal justice program.

Defense counsel Karl Rominger started by asking John McQueary whether he remembered his testimony during a preliminary hearing in the criminal case involving perjury charges against former Penn State Athletic Director Tim Curley and former senior vice president Gary Schultz. John McQueary didn't recall that testimony.

This isn't a terribly rare occurrence. Witnesses who have testified frequently forget appearances. Those new to litigation don't always remember the names the legal system assigns to the proceedings in which they testified.


When John McQueary testified that he didn't recall the preliminary hearing, Karl Rominger showed him the transcript of his testimony.

Read the full transcript of the December 2011 hearing (.pdf)

This is a common tactic, and it usually works quite well. But McQueary still didn't recall the proceeding.

Lawyers on cross-examination are accustomed to such eventualities. One easy response is to restate the question, vaguely describing the earlier proceeding: "Did you recall testifying in December that ..."

Rominger, however, seemed like a deer in the headlights. He consulted his co-counsel, Joe Amendola. He then tried to ask McQueary again about the preliminary hearing, specifically referring to the proceeding McQueary said he couldn't remember.

It didn't help that Rominger might have confused McQueary by mischaracterizing the hearing when he first asked about it, calling it "this other grand jury in Dauphin County." The December hearing wasn't, in fact, a grand jury session — it was a preliminary hearing before a judge in a separate but related case.

Alleged victim testifies Sandusky threatened him unless he kept quiet

Full coverage of the Jerry Sandusky trial

Judge John Cleland was clearly frustrated with Rominger, who seemed lost as how to proceed. On Tuesday, he had demonstrated similar frustration with Rominger, whose cross-examination seemed to go nowhere.

On Wednesday, Cleland pointedly instructed Rominger that the witness didn't remember this hearing and to move on.

Judges often give counsel some latitude when witnesses are confused, but they have extraordinary discretion to limit the scope of cross-examination. They have not only to ensure that each side gets a fair shake but also to manage the case, to keep the case moving. Lawyers who appear to ask meaningful questions and appear not to waste the court's time are given more leeway when they get caught in a tough spot.

Rominger's performance Tuesday may have come back to haunt him Wednesday.

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