The problem, of course, is the collateral damage. Sure, when some crazy prosecutor actually does bring charges against an MD for conducting an exam or a parent for changing a diaper (and it will happen), we can hope the jury will acquit or, if not, that some appellate court will vacate a conviction. Same with an unexpected and bizarre prosecution for some unimaginable white-collar, regulatory offense. But maybe there won’t be relief. And if there is, at what cost to the victim of the prosecution – and the victim’s family and friends? John Roberts (and I’m no fan) got it exactly right when he said in Stevens v. U.S. “But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” The same rule should be applied across the board. Yeah, prosecutors should have discretion. But the statutes and rules should constrain that discretion before, not after the fact.