Prosecutors might not control the world after all

Sometimes, judges will impose rules and deadlines on prosecutors, especially when they get the sense that the prosecutor is pursuing a frivolous case.  For example, “You hid this evidence from the defense lawyer until now, the morning of trial?  I’m excluding it from the trial because you violated the discovery rules and my scheduling order, and the defendant wouldn’t have the necessary time to prepare his case.”  Or, “This case has been pending for three years, and you want to completely change the charges the morning of trial?  No dice; you’re going to trial on the charges that you've filed.”  Granted, this doesn’t happen often, but even when it does, judges quickly learn that it’s the prosecutor, and not the judge, that controls the courtroom.

For example, in the above fact scenarios, prosecutors may respond by moving to dismiss the case without prejudice.  This means that they’ll simply re-file it under a new case number the next day (or even the same day) and they get to start over again from scratch.  But the second time around, they might even get a new judge.  At the very least, they’ll get a fresh kick at the cat and can change or add charges, or do whatever else they failed to do during the months or even years that the first case was pending.  (Depending on the state, a judge may be able, in some cases, to deny the prosecutor's motion to dismiss and force him to go forward with trial.  However, the law on this may come down to a complex, fact-intensive balancing test that typically works in the prosecutor’s favor.)

And if prosecutors don’t like judges running the show, they certainly don’t want alleged victims exerting their influence on things.  Contrary to popular myths, alleged victims (aka "accusers" or "complaining witnesses") can’t make the decision to “press” charges or later “drop” charges.  Once this person makes an allegation to the police and the case is referred to the prosecutor, only the prosecutor as the agent of the plaintiff (the state or federal government) can “press” or “drop” charges.  And prosecutors are typically able to proceed with their cases, even without the benefit of the alleged victim’s cooperation.  (See Chapter 20 of this myth-busting book for more details.)

But one area where the prosecutor might not have total control relates to the alleged victim’s medical records or other confidential records.  In a criminal case in Wisconsin, for example, the law states that if the defendant can make the proper showing that he needs the accuser’s records in order to present his defense—a very high hurdle, actually—and if the accuser refuses to release those confidential records to the court, the judge may bar the accuser from testifying at trial.  In some cases and in some circumstances, this could be fatal to a prosecutor’s case.  In other words, under this very uncommon set of facts, the balance of power to control a criminal case could, to some extent, shift from the prosecutor to the alleged victim.  

This really rankles prosecutors, because it means that the accuser’s right to confidentiality in his or her private medical records could get in the way of the prosecutor’s ability to prosecute who they want, when they want, and for whatever they want.  And because some prosecutors are used to getting their way in the courtroom regardless of what judges and alleged victims want, this seems like an incredible injustice to them.  Therefore, prosecutors are fighting furiously in State v. Johnson to elevate their power to control the courtroom over (a) the alleged victim's right of privacy in their medical records, and/or (b) the defendant's right to present a complete defense.

We'll see what happens next.  If I were a betting man, my money would be on the prosecutors, but I hope our state supreme court proves me wrong.