The Colorado Supreme Court signaled last week that it may intervene in an ongoing prosecution out of Boulder County in which a trial judge has prohibited prosecutors from using an alleged sex assault victim’s childhood journal at trial, containing evidence of her abuse.

One week before Mark Allan Hochwender was scheduled to face trial on two counts of sexual assault on a child, a judge issued an order that the prosecution characterized as unsupported by the law and overly invasive of victims’ privacy rights.

As alleged, Hochwender was the therapist for two high school-age sisters between 1999 and 2000. Prosecutors have accused Hochwender of engaging in grooming behaviors, culminating in physical touching and sex. Police learned of the alleged assaults in 2021 from the younger sister.

In September 2022, in response to law enforcement questioning, the older sister mentioned she kept “dream journals” — 30 to 50 volumes total — some of which contained memories of her interactions with Hochwender. With the victim’s permission, a detective photographed the relevant entries and disclosed them to the defense.

The following year, the victim informed the prosecution she discovered another journal she kept during a high school visit to Argentina. There were descriptions of Hochwender’s alleged grooming behavior throughout the notebook. Once again, law enforcement photographed certain pages from the journal and submitted them to the defense.

Shortly before Hochwender’s December 2024 trial, the prosecution announced it intended to use the photographs as evidence.

“Notably, not once during this one-year period did Defendant request additional journal entries, ask why additional pages had not been provided, attempt to interview witnesses about the Journals, or attempt to subpoena the journals,” Senior Deputy District Attorney Ryan P. Day wrote to the Supreme Court.

The defense objected to the photographs’ use, arguing the prosecution had an obligation to collect the victim’s full statements — meaning the entirety of the journals — and disclose them to the defense.

Stephen A. Groome, a retired district court judge assigned to the case, agreed a rules violation occurred and ordered the journals should either be fully disclosed or excluded entirely from trial. In response, the prosecution shared the entire Argentina journal with the defense.

On Dec. 2, Groome issued another order barring the use of any journal entries. He believed the prosecution did not intentionally withhold materials, but “the defense has been prejudiced by not being allowed to examine all of (the victim’s dream) journal entries” for evidence that might exonerate Hochwender.

With trial set for Dec. 9, the Boulder County District Attorney’s Office immediately sought the Supreme Court’s intervention, calling the journal entries critical.

“Judge Groome lacked authority to order access to a third-party’s private journals,” wrote Day. “It is hard to imagine anything more invasive or abusive than requiring a sexual assault victim to give her dreams, thoughts, and feelings to her abuser so that he can peruse them for impeachment evidence that may not even exist.”

He added that Groome’s logic meant that if a rape victim had text messages in which her assailant admitted to the crime, police would need to download the contents of the phone and provide everything to the defendant.

“Sex assault victims might not report crimes for fear they will be required to turn over their most private and intimate possessions — journals, phones, computers, photographs — and have their abusers pore over those possessions for embarrassing impeachment material,” concluded Day.

On Dec. 6, the Supreme Court ordered a response to the prosecution’s petition.

The case is People v. Hochwender.