There are dozens of critical moments during a criminal proceeding in which prosecutors across states have complete control over a defendant’s life. From setting bail to shaping plea deals, prosecutors exercise power over millions of people based on their individual notions of justice. But there are smaller moments in the life of a criminal case that are seldom discussed, where prosecutors have power, and public defenders few resources to react or resist. One of these is the ability of prosecutors to change theories of a case, which raises serious due process violations, particularly in the face of overworked and underfunded local public defenders’ offices.

There is no systemic or legal mechanism through which prosecutors are held accountable to one particular theory of a case, which has been most often challenged in the context of co-defendants being tried under different theories of how particular events transpired. This flexibility is also available to a prosecutor within a single defendant’s case, though. For example, a prosecutor charging an individual with assault with a dangerous weapon can start by claiming that she had a gun and then claim that it was, in fact, a knife if the evidence does not reinforce the first theory. This can happen at any point in time, including after indictment, or even before trial. The question then becomes whether the system is designed to seek the truth, or instead unleash an inevitable and unstoppable series of events that aims at, and generally achieves, conviction after an arrest, whatever the means necessary.

In a context in which public defender offices can barely even staff cases, it is hard to imagine that an attorney will be able to prepare an adequate defense for her client if the theory of a case changes from one moment to the next. Because the right to counsel in the U.S. has traditionally been defined as the right to effective assistance of counsel, we may be infringing on this right by limiting the extent to which public defenders can do their job competently. Considering that in states like Louisiana, prosecutors have over 120 days to file an indictment (a time period in which the defense attorney is not entitled to any discovery), the incentives for public defenders to research their clients’ cases or file motions before that time elapses significantly diminish.

Because if theories change, charges can too, a prosecutor can indict a defendant for a completely different crime than the one she was arrested for without issue or notice. This means we could in effect be sending individuals to jail for extended periods of time for committing crimes no one believes were actually committed, raising serious issues of due process.

For instance, if an individual is charged with first degree rape, bail would be set accordingly high, and the defendant could be forced to remain incarcerated. During the 120 days before indictment in a place like Louisiana, the prosecutor could decide that the crime committed was, in fact, battery, and that no sexual crime had ever been committed. As such, bail would be lowered and therefore become affordable to this individual, only after having spent four senseless months in jail. But even if the time between arrest and indictment were shorter, changing the theory of a case later in a proceeding could theoretically render all prior efforts by the public defender useless. By consenting to this flexibility, we allow defendants to undergo the trauma of the criminal legal system without the benefit of an attorney working towards an informed and effective defense.

If we intend to remain faithful to the principle that everyone deserves effective representation, we cannot allow prosecutors this kind of flexibility. Limiting the extent to which the legal system enables due process violations is crucial. When prosecutorial action has the added effect of increasing the workload of public defenders (who may be struggling to prepare a zealous and effective defense for each client to begin with), we must be especially vigilant. The legal process demands zealous advocacy on either side in revealing the truth, not a conviction at any price.