A grand jury “presentment” is a document that reflects the results of an investigatory grand jury’s investigation. Abandoned by the federal system in 1946, several states continue to rely on presentments in their grand jury practice. One such state is Pennsylvania.
On November 5, 2011, a Pennsylvania investigating grand jury issued a presentment targeted toward former Penn State assistant football coach, Jerry Sandusky. The twenty-three-page document was released to the public on the same day and, in it, the presentment included a handful of statements relevant to former Penn State head football coach Joe Paterno. Although Paterno was not the subject of the state’s criminal investigation against Sandusky, that did not satisfy the court of public opinion. And, although Paterno was denied the opportunity to legally respond—there existed no venue for him to file any kind of response or seek to strike portions of the Sandusky presentment—Penn State fired him on November 9 and he died just sixty-four days later.
This Article argues that the Pennsylvania grand jury system and its use of the grand jury presentment needlessly and unfairly included Paterno, practically accusing him of a crime. In doing so, the Article relies both on Paterno and Pennsylvania as merely illustrative examples of a broader problem: seemingly any state can name uninvestigated third parties in a grand jury presentment targeted toward someone else. Indeed, any grand jury that names an uninvestigated person in a presentment or report subverts the grand jury’s investigative purpose and abuses the grand jury system.