Another Penn State employee, a janitor named James Calhoun, claimed that he saw Sandusky performing oral sex on a boy in the same locker room showers in the fall of 2000, just months before the McQueary incident. Calhoun, who now suffers from dementia, will not be able to testify about what he saw. Instead, prosecutors have named the boy in the incident "Victim 8" and filled in his account of alleged abuse with details from other janitors, whom Calhoun allegedly told about the incident. That boy also has never been identified.
"You don't need a victim in court, legally. Otherwise we would have no homicide trials. What you need, though, is credible testimony as to what happened," Epstein said.
The prosecution will have to prove what the janitor saw without his testimony, which they can do through statements he made prior to his dementia, Epstein said, noting that certain hearsay evidence is admissible in court, and certain hearsay is not.
"My concern here is not victim versus no victim, but credible witness versus not credible witness," Epstein said. "Is there trustworthy, believable stuff?"
If the prosecution cannot adequately support the charges stemming from Victims 1 and 8, in which there will be no tangible victims in court, the judge could dismiss them at the end of the trial, Epstein noted.
Each count of sexual abuse carries a maximum penalty of 10 to 20 years, Epstein said, though judges can choose to impose shorter penalties if found guilty.