@Stacey48 From what was in the article, I think they never had and haven't found a photo yet, which just seems odd to me. I mean, with no photo, what made them think to bring charges in the first place?

@Stacey48 if someone observed the photo their affidavit would give you PC to charge the offense. Then you’d have to try to uncover the photo through further investigation.

@bingst Someone could have told them the photo existed and that would give them probable cause to charge but certainly not convict. Then they would have been hoping the photo showed up. I had a case where I knew the stolen gun existed and had been in the defendant’s possession because I had a picture of it in the defendant’s room and it had unique markings but I didn’t have the gun. I charged and was working with a couple other confidential informants desperately trying to get the gun—I never did find it but the defendant ended up pleading guilty to the case because I had DNA on him in a different case. Sometimes you have to hope that investigations will lead you to the evidence to get a conviction and it is ethical as long as you have enough evidence to rise to the level of probable cause to believe the defendant committed the crime to support your charges. But you are supposed to dismiss if it becomes clear that you won’t be able to meet your burden of proof (beyond a reasonable doubt) at trial.

@Akfishlady Very shady indeed.

Exactly. I've never heard of anything like this either. @Lilie is a lawyer maybe she could give us some insight.

Judges would not allow this in a normal case, I think.

You can’t call a witness unless the testimony would be relevant to the case. I take extra ordinary steps to avoid becoming a witness in my own case. When I interviewed my witnesses I always have a third party present so I can call that third party to the stand if my witness changes his or her story. However, here the attorney was called by the defense!! The judge has to determine whether the relevancy of the prosecutor’s likely testimony was substily outweighed by unfair harm to the case. It must have been very relevant.

@Lilie And is there a standard resolution when the prosecutor is placed on the defense's witness list?

@bingst It is clearly an ethical violation to continue to prosecute once the judge allowed him to be called as a witness. So he had no choice but to dismiss the case. But the case was dismissed WITHOUT prejudice which means IF they can find a different prosecutor the case could be recharged.

@Lilie Thanks for the insight!

@kmdskit3 thanks for tagging me! The discussion was fascinating. I hope I never find myself in a position like that.

@Lilie I'm very glad you responded. This situation was so bizarre it was obvious none of us knew what to make of it. Your expertise was incredibly helpful.

@RonHunt I can only go with my familiarity with ND law. Here another prosecutor could charge but it would be difficult to find one willing. Usually the state’s AG office is the best bet. Every state has different statutes of limitation.