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Buckley, Imbler and stare decisis: the present predicament of prosecutorial immunity and an end to its absolute means.


A. Imbler v. Pachtman

1. Facts

2. Holding

3. Justice White's Concurrence

B. Post-Imbler Developments

C. Burns v. Reed

1. Facts

2. Holding

3. Scalia's Opinion

D. Buckley v. Fitzsimmons

1. Facts

2. Holding

3. Scalia's Concurrence


A. Stare Decisis

B. Grounds for Dispensing with Stare Decisis

C. The "Prudential and Pragmatic Considerations" IV. OVERRULING IMBLER

A. The Unworkable Standard

1. Divining Prosecutorial Function

2. The Bad Incentives of Absolute Prosecutorial


3. The Bad Results of Absolute Prosecutorial


4. Determining When a Prosecutor Determines

Probable Cause

B. The Historical-Functional Approach and Imbler

as "Abandoned Remnant"

1. Legal Developments and the "True Anomaly"

2. The New Approach to Immunities: No More

"Freewheeling Policy Choices"

C. Changes Eroding Imbler's Policy Judgments

1. Beating and Barring Vexatious Suits

a. Changes With Respect to Qualified Immunity

b. Shrinking and Scaring the Plaintiff Pool

2. Suing the Municipality in Place of the


3. The Recognition of Absolute Witness


4. Post-Conviction Review and Changes in

Res Judicata

5. The Unfulfilled Promise of Alternative


D. The Absence of Valid Reliance Interests

E. How Imbler Would Be Decided Today:


A. Fabrication of Evidence as a Section 1983 Cause

of Action

B. Malicious Prosecution as a Section 1983 Cause



A right without a remedy is as if it were not. For every

beneficial purpose it may be said not to exist.(1)

We presently possess rights that defy this pronouncement. Enforcement of our civil rights, permitted through suit via Title 42 United States Code section 1983, may be blocked by immunity defenses. Immunity can be absolute or qualified. If an immunity is qualified, it may be overcome by a showing of malicious or unreasonable conduct. Whether an immunity is available depends upon the violator's role or function at the time of the alleged misconduct. Historically, absolute immunity was only available to judges, witnesses, legislators, and the chief executive. However, in Imbler v. Pachtman,(2) the Supreme Court extended absolute immunity to criminal prosecutors in section 1983 cases.

This Article scrutinizes Imbler and its progeny, which shield from suit prosecutors who knowingly deny persons a fair trial. These cases created an intricate standard for immunity that disservices the criminal justice system and confounds the civil one. Although, in its current form, absolute prosecutorial immunity discourages prosecutors from engaging in pre-trial investigation, it encourages them to indict early and often. It also insulates prosecutors who deliberately suppress exculpatory evidence. These shortcomings are compounded by the absence of oversight and discipline by bar associations and other criminal prosecutors. Finally, the reasons for extending prosecutors absolute immunity no longer exist. Changes in the law, especially the greater availability of qualified immunity, make absolute immunity unnecessary.

Part I of this Article examines the origins of section 1983 immunity and the types of immunity available in those actions.(3) Part II analyzes Imbler and the Supreme Court's recent prosecutorial immunity decisions.(4) Part III addresses stare decisis and the Court's methodology for overruling precedent.(5) Part IV specifically focuses on Imbler's stare decisis implications and finds it ripe for reconsideration.(6) Finally, this Article examines unresolved issues concerning section 1983 claims against prosecutors.(7)

This Article does not advocate abandonment of the functional approach used for deciding section 1983 immunity defenses. Instead, it suggests abandoning Imbler, which misapplied the approach. Moreover, this Article does not seek to undermine prosecutors who perform the difficult and vital work necessary for a safe society. Although prosecutors need some protection from suit, absolute immunity is too much. Developments over the last twenty years make qualified immunity adequate protection. Discarding absolute prosecutorial immunity will only leave incompetent or malevolent prosecutors subject to civil liability for their misdeeds.


Section 1983, which was passed on the heels of the Fourteenth Amendment, provides a neutral forum for adjudicating deprivations of federal rights by state and local officials.(8) Under section 1983, a plaintiff must allege that a state or local official, while acting "under color of state authority",(9) violated rights secured to the plaintiff either by the United States Constitution or a federal statute.(10) In relevant part, section 1983 states:

Every person who, under color of [law] . . . causes to be subjected,

any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding

for redress.(11)

Although this broad statutory language does not refer to exceptions or immunities, the Supreme Court, in Tenney v. Brandhove,(12) interpreted this silence to mean that Congress accepted the immunities contemporary to section 1983's passage in 1871.(13) Tenney involved the immunity available to state legislators, which was explicitly conferred to federal legislators in the Constitution,(14) and granted by English and American common law to prevent nuisance suits from deterring legislative decision-making.(15) The Tenney Court concluded that if the forty-second Congress wished to abrogate immunities "well grounded in history and reason" it would have specifically so provided.(16)

Two levels of official immunity exist--absolute and qualified. Absolute immunity precludes suit even if the offending official knew that his or her conduct was unlawful, malicious, or otherwise without justification. Absolute immunity rests on a notion that the conduct of certain officials is so important that it is better to shield them entirely from tort actions rather than allow a few appropriate recoveries.(17) Because absolutely immune officials have no obligation to justify their actions, suits against them are ordinarily dismissed on pretrial motions.(18) The defendant has the burden of establishing any higher level of immunity beyond the qualified level.(19)

Qualified immunity insulates officials who unknowingly cause a constitutional injury. Qualified immunity may preclude suit or be asserted as an affirmative defense at trial.(20) The defendant must show that he or she did not violate clearly established laws that a reasonable official would have known under the circumstances.(21) If, based on undisputed facts, the trial judge finds that reasonable minds could differ as to whether an official broke the law, the defendant is immune and entitled to summary judgment.(22) If the facts are disputed, the trial judge may limit discovery to the issue of whether the defendant official committed the unreasonable act.(23)


A. Imbler v. Pachtman

In Imbler v. Pachtman,(24) the Supreme Court first addressed the immunity of prosecutors in section 1983 claims. This case, which came early in the Court's formulation of its approach to section 1983 immunities, set forth a broad rule of absolute prosecutorial immunity.

1. Facts

In 1961, the owner of a Los Angeles market was killed during a robbery.(25) Shortly thereafter, a robbery occurred at a different market, during which one of the thieves was killed.(26) Paul Imbler turned himself into the police and confessed to his involvement in the second robbery.(27) Based on the confession and the fact that a passerby identified Imbler as having fled the scene of the first robbery, the police concluded that Imbler was also involved in the first robbery-murder.(28) Imbler claimed that he was at a bar during the first robbery.(29) Despite the alibi, a jury convicted Imbler of murder and sentenced him to death.(30)

While Imbler waited on death-row, the prosecuting attorney, Richard Pachtman, discovered new evidence suggesting that Imbler was innocent.(31) Accordingly, Pachtman informed the Governor of the new findings.(32) After his sentence was commuted, Imbler filed a habeas corpus action in state court.(33) At the state hearing, the eyewitness recanted his identification.(34) In addition, evidence emerged which suggested that Pachtman may have known about the eyewitness' criminal record and other inaccuracies before Imbler's initial trial.(35) Despite the additional evidence, the California courts uniformly rejected any relief.(36)

Imbler fared somewhat better in federal court. The District Court found several instances of misconduct and prejudice, and vacated the conviction.(37) Once released, Imbler sued Pachtman and several police officers alleging a conspiracy to violate his civil rights.(38) Nonetheless, the suit was dismissed under the Ninth Circuit's prosecutorial immunity case law.(39)

2. Holding

On appeal, the Supreme Court held that immunity should be granted to a prosecutor who initiates and prosecutes a case. However, the Court did not give prosecutors absolute immunity for all actions taken. The Court explained Tenney's(40) functional law approach and promised officials the same protections of "the general principles of tort immunities and defenses."(41) The Court recognized the onerous requirements on an official seeking qualified immunity in stating:

The procedural difference between the absolute and the

qualified immunities is important. An absolute immunity

defeats a suit at the outset, so long as the official's actions

were within the scope of the immunity. The fate of an official

with qualified immunity depends upon the circumstances and

motivations of his actions, as established by the evidence at


Observing that prosecutorial immunity under section 1983 was an issue of first impression, the Court pledged a "considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it."(43) The Court recognized that Griffith v. Slinkard,(44) which became the majority view among the states in the early twentieth century,(45) was the first published case recognizing absolute prosecutorial immunity.(46) Turning to policy, the Court articulated several justifications for absolute rather than qualified prosecutorial immunity. First, if prosecutors could be sued, they would have to divert important time away from their public duties to defend against the often frivolous suits of disgruntled defendants.(47) Second, suits which survived the pleadings would pose a distinct evidentiary challenge to prosecutors since they would have to prove that they acted in good faith often years after the criminal trial.(48) Third, fear of liability would stifle prosecutors during trials and discourage them from calling witnesses with dubious pasts.(49) The Court also feared that reviewing judges might refrain from reversing convictions for constitutional abuses if prosecutors might face liability as a result.(50)

Balancing between providing a remedy against bad prosecutors or no remedy at all, the Court adopted Judge Hand's conclusion that the needs of prosecutors outweigh those they occasionally injure.(51) The Court defended this harsh outcome by noting that alternative checks existed to deter mischievous prosecutors.(52) Bar associations and other prosecutors would supposedly substitute for civil liability and insure that prosecutors would consider the constitutional rights of accused persons.(53)

After endorsing absolute prosecutorial immunity, the Court returned to the functional approach to determine what prosecutorial acts were covered. The Court held that absolute immunity applied when a prosecutor acted as an advocate for the state by initiating or presenting the state's case or by otherwise performing acts "intimately associated with the judicial phase of the criminal process."(54) Although the Court did not indicate what immunity applied to prosecutors engaged in administrative or investigative work, the Court observed that some pretrial work was an implicit part of advocacy.(55) However, the Court admitted that "drawing a proper line between these functions may present difficult questions" in the future.(56)

3. Justice White's Concurrence

Justice White agreed that absolute immunity was proper for decisions to initiate proceedings or unknowingly present perjured testimony.(57) However, unlike judicial or legislative immunity, Justice White determined that prosecutorial immunity "was not so firmly entrenched."(58) He also doubted the majority's policy argument that a reviewing judge would be reluctant to reverse convictions absent absolute immunity.(59) Police officers also face suit if a court finds that a constitutional deprivation on their part denied a plaintiff a fair trial.(60) However, the Court did not hold that this justified granting them absolute immunity.(61) Moreover, White presumed that common law defamation immunity already protected prosecutors who elicited false statements from witnesses.(62)

Justice White was particularly disturbed by extending absolute immunity to Brady violations.(63) He found neither common law decisions nor good policy reasons to immunize the suppression of exculpatory evidence. A prosecutor fearing subsequent suit for failing to disclose information would only be induced to disclose more, which is hardly ruinous of the judicial process.(64) Immunity for deliberate suppression of evidence "discourage[s] precisely the disclosure of evidence sought to be encouraged by the rule granting prosecutors immunity from defamation suits."(65) Moreover, a judge cannot rectify what he or she does not know, which prevents the judicial process from realistically replacing civil liability as a check on prosecutorial misconduct.(66)

B. Post-Imbler Developments

After Imbler, the Sixth Circuit reversed its decision denying a prosecutor absolute immunity in Hilliard v. Williams.(67) In Hilliard, the prosecutor in a murder case withheld a Federal Bureau of Investigation report revealing that the red blotches on the defendant's jacket, which the prosecution argued were blood, were really paint.(68) Moreover, the prosecutor coached an investigator to testify without revealing this information.(69) Justice White had mentioned the facts of this case in his plea for a more narrow absolute immunity rule.(70)

Between 1976 and 1991, appellate courts applied Imbler to a broad range of prosecutorial conduct. Such conduct included decisions about whether to prosecute,(71) acts done during plea bargaining,(72) the preparation of testimony,(73) subpoenaing witnesses,(74) freezing a suspect's assets,(75) and, again, the suppression of exculpatory evidence.(76) Meanwhile, these courts considered prosecutors to be investigators and, therefore, only qualifiedly immune, when they organized police raids(77) or ordered arrests.(78) Often the dividing line between whether conduct received absolute or qualified immunity was the courtroom door.(79) As splits emerged among the circuit-courts, the Supreme Court again addressed absolute prosecutorial immunity in 1991.

C. Burns v. Reed

1. Facts

On September 2, 1982, Cathy Burns' two sons were shot while sleeping at home.(80) Indiana police suspected that Burns committed the crime while in a schizophrenic state.(81) Although she told police that she neither shot her children nor suffered from schizophrenia, the police asked prosecutor Richard Reed whether they could question her under hypnosis.(82) Although this would not produce admissible evidence, Reed instructed them to proceed.(83) When she was hypnotized, Burns referred to herself and the assailant as "Katie."(84)

Based on these "admissions," Reed told the officers that they likely had probable cause to arrest Burns.(85) The police then arrested Burns and she was confined to a psychiatric ward.(86) At a probable cause hearing, Reed characterized Burns' statements as a confession without telling the court about the hypnosis or her prior assertions of innocence.(87) The court issued a search warrant and Burns was charged with attempted murder.(88)

Later, after Burns successfully moved the court to suppress these statements,(89) the prosecution dismissed the charges.(90) Burns then sued Reed for various constitutional violations stemming from her arrest and incarceration.(91) After Burns presented her case, the district court granted Reed a directed verdict and the Seventh Circuit affirmed, reasoning that Reed's actions were protected by absolute immunity.(92)

2. Holding

The Supreme Court noted a circuit-split on the question of prosecutorial immunity for giving the police legal advice.(93) After reciting Imbler's justifications for immunity, the Court listed subsequent immunity decisions that followed the "functional approach."(94) These cases created the presumption that qualified immunity was sufficient to protect executive officials discharging their duties and that absolute immunity should only be granted sparingly.(95)

The Court restricted Burns' first cause of action to the probable cause hearing and found Reed's testimony absolutely immunized from suit.(96) The Court analogized Reed's testimony to that of a witness at trial, who possessed common law immunity before the passage of section 1983.(97) The Court stated that "pretrial court appearances by the prosecutor [associated with a] criminal action against a suspect present[ed] a substantial likelihood of vexatious litigation" and deserved absolute protection.(98)

However, the Court reached a different conclusion concerning Reed's advice to arrest Burns. The Court held that the common law did not absolutely immunize this activity.(99) Noting the policy reasons set forth by the Seventh Circuit and the United States as amicus curiae to protect such advisement, the Court nevertheless rested its conclusion on the lack of historical support.(100) The Court downplayed concerns over the adequacy of qualified immunity by recognizing that "the qualified immunity standard is today more protective of officials than it was that the time that Imbler was decided."(101)

3. Scalia's Concurrence

Along with Justices Marshall and Blackmun, Justice Scalia agreed that a "prosecutor has absolute immunity for eliciting false statements in a judicial hearing,"(102) based upon the common law history of absolute defamation immunity prior to section 1983. However, Scalia determined that Burns had a separate cause of action for malicious prosecution based on the search warrant proceeding.(103) Scalia noted that the presence of common law immunity analogous to present prosecutorial activity was merely a necessary, but not a sufficient, factor.(104) The policy justifications of immunity preceding section 1983 could still wilt under the history and intent of the civil rights laws.(105)

Investigating common law immunities in 1870, Scalia discovered three categories. First, statements made during "a court proceeding were absolutely privileged against ... defamation."(106) Judicial immunity, which was also absolute, existed when a judge resolved disputes between parties or adjudicated private rights.(107) A variant of this was "quasi-judicial immunity" which protected government servants performing discretionary "quasi-judicial acts."(108) However, aquasi-judicial immunity" was not absolute and could be overcome by proving malice.(109) Scalia concluded that prosecutors fell in this category.(110) Under these limited immunity rules, Scalia reasoned that Burns had a cause of action against Reed for knowingly securing a warrant without probable cause.(111)

D. Buckley v. Fitzsimmons

1. Facts

The Court's most recent prosecutorial immunity decision is Buckley u. Fitzsimmons.(112) In Buckley, Stephen Buckley sued Fitzsimmons, the district attorney, for fabricating evidence that led to his three-year incarceration for the alleged rape and murder of a young girl.(113) Buckley alleged that after Fitzsimmons suspected him, he took a bootprint found at the murder scene to three experts until one expert, who had questionable credentials,(114) agreed to falsely testify that the print came from Buckley's boot.(115) The expert s testimony was secured after a year long investigation and a special grand jury was convened just for the case.(116)

This testimony led to an indictment and a trial, which subsequently ended in a hung jury.(117) Buckley remained in prison for two additional years awaiting retrial.(118) However, in that time, the expert died and a third party confessed to the crime.(119) After the charges were dropped, Buckley sued the prosecutors and police for wrongful imprisonment and for defamatory comments Fitzsimmons made to the media.(120)

The district court granted absolute immunity to Fitzsimmons for all claims, except those concerning press conferences.(121) On appeal, the Seventh Circuit extended absolute immunity to the public statements as well.(122) The circuit court reasoned that whatever harm the statements caused was only related to the progression of the case and that the conduct associated with such activity (i.e., indictment and trial) was covered by absolute immunity.(123)

2. Holding

The Supreme Court rejected the Seventh Circuit's "location of injury" theory for immunity rulings.(124) Instead, the Court reiterated that it is the judiciary's duty to effectuate Congress' intent with respect to section 1983, rather than make a "`freewheeling policy choice.'"(125)

Under the Tenney functional approach, neither the harm nor the lawfulness of conduct at issue affects immunity determinations.(126) The Court reiterated that prosecutors receive absolute immunity for acts done in preparing for a judicial proceeding, which includes the evaluation of evidence and "appropriate preparation for its presentation at trial or before a grand jury."(127) However, the Court distinguished such functions from that of an officer looking for clues or corroboration to support probable cause.(128) When undertaking this investigatory conduct, a prosecutor would only receive qualified immunity.(129)

Under the above paradigm, five members of the Court found Fitzsimmons to be an investigator and not an advocate when he secured the dubious expert testimony.(130) The majority concluded that a prosecutor could not assume the function of an advocate before possessing probable cause to arrest.(131) Before securing the expert testimony, Fitzsimmons publicly stated he was unable to make an arrest and only after his "bootprint shopping" did he feel able to arrest Buckley.(132) The majority noted that the "determination of probable cause" does not thereafter render all of a prosecutor's subsequent conduct absolutely immune.(133) The majority foresaw instances when a prosecutor might do further investigative work during a trial, which would also merit only qualified immunity.(134)

The Court unanimously held that the absence of a common law analogue weighed against extending absolute immunity to Fitzsimmons' out-of-court statements about Buckley's guilt.(135) Again, the Court brushed aside policy arguments in the absence of historical support contemporaneous to the passage of section 1983.(136) The Court reasoned that "[e]ven if policy considerations allowed us to carve out new absolute immunities," no such reasons existed to create such immunity for a prosecutor's public statements, "which have no functional tie to the judicial process."(137) The Court noted that it would be odd, after Burns, to find qualified immunity sufficient to protect prosecutors when they advised the police, but not when they informed the press.(138)

3. Scalia's Concurrence

Justice Scalia re-emphasized that 1871 common law controlled the level of permissible immunity.(139) While he did not urge reconsideration of Imbler, his date restriction would produce a similar effect, since his Burns concurrence noted that absolute immunity did not exist for any prosecutorial conduct in 1871.(140) Prosecutors could not achieve immunity for acts beyond what Imbler had already allowed.

A second intriguing aspect of Scalia's concurrence was his conclusion that claimants like Buckley probably lack a federal cause of action in the first place.(141) He believed a "due process" claim against Fitzsimmons for using fabricated evidence at trial would be barred by "traditional defamation immunity."(142) Furthermore, "the mere preparation of false evidence, as opposed to its use in a fashion that deprives someone of a fair trial or otherwise harms him, [would not alone] violate[] the Constitution."(143)

4. The Dissent

The dissent concluded that Fitzsimmons' search for a sympathetic bootprint expert constituted trial preparation.(144) The dissent launched three notable arguments against the probable cause line drawn by the majority to discern functions of prosecutorial immunity. First, it made probable cause an element of any future suit against a prosecutor, and thereby threatened the continued protection of absolute immunity from malicious prosecution actions bestowed in Imbler.(145) Second, the probable cause line could perversely encourage prosecutors to present perjured or fabricated evidence to a neutral third party in order to secure immunity for subsequent acts.(146) Finally, prosecutors would now be encouraged to avoid pre-trial investigations.(147) The dissent asserted that the majority's probable cause standard stemmed from the fundamental misconception that before probable cause a prosecutor functions solely as a police officer, and therefore deserves no greater immunity.(148)

The Court's decision in Buckley was perceived by some as gutting Imbler, a result that Scalia intimated and the dissent discouraged.(149) Despite this conflict, Imbler still extends absolute immunity to prosecutors who deliberately withhold exculpatory evidence.(150) Undoubtedly, confusion over Buckley's meaning or mechanics flows from Imbler's greater flaws. As a result, the Court should go back to the drawing board and start with a clean slate. The manner in which the Court should clean the slate will become clearer after a brief discussion of stare decisis.


A. Stare Decisis

A staple of Anglo-American jurisprudence, stare decisis serves several valuable purposes. First, adherence to precedent ensures that the law is applied evenhandedly.(151) In addition, stare decisis promotes certainty and efficiency by persuading parties to not relitigate matters already decided without a good reason for doing so. Most important, the doctrine reinforces the legitimacy of the judicial system by ensuring unbiased decision-making in lasting concepts of justice, rather than outcomes tied to beliefs peculiar or personal to a judge.(152)

B. Grounds for Dispensing with Stare Decisis

Though valuable, the Supreme Court does not treat stare decisis as an "inexorable command."(153) When reviewing a statutory interpretation, the Court has repeatedly averred a greater unwillingness to dispense with stare decisis. Some assert that Congress can readily correct the Court's mistaken interpretation of a statute, while overruling a constitutional interpretation requires the citizenry to employ the arcane machinery of constitutional amendment.(154) In Monroe v. Pape,(155) Justice Harlan suggested that only a finding that the Court misinterpreted congressional intent "beyond doubt" should upset a previous statutory decision.(156) However, in practice the Court has found it unwise to view congressional silence on a decision as congressional acceptance of an interpretation.(157) The difficulty of passing legislation in a bicameral legislature, beset by hierarchical committees and other deliberative bodies, makes it "`impossible to assert with any degree of assurance that congressional failure to act represents' affirmative congressional approval of the Court's statutory interpretation."(158) Hence, the Court does not expect the Congress to correct the Court's errors.(159)

Fidelity to stare decisis means that a prior decision must be more than simply "wrong" to justify discarding it.(160) The Court has examined a multitude of factors in evaluating the viability of a statutory precedent. When parties reasonably rely upon a previous decision, regardless of whether or not the decision was correct, it may be unfair to abruptly overrule it. Thus, in Monell, the Court found that municipalities could not claim that reliance on Monroe excepted them as potentially liable parties in a section 1983 suit, since such entities were already mandated to uphold the Constitution.(161)

Occasionally, a statutory interpretation falls out of step with later decisions. When this "frustrates" a federal policy, the Court will not wait for Congress to reconcile case law.(162) Inconsistency invites bad results, like the type of forum-shopping that resulted from lower federal courts crafting a "general federal common law"(163) or rulings that encouraged defense attorneys to "sandbag" constitutional claims in order to preserve them for federal habeas corpus review.(164)

Subsequent developments in law and society may erode the factual basis of a decision. For instance, new economic theory has changed the Court's view of vertical non-price restraints under the Sherman Act.(165) Similarly, the increasingly cluttered federal docket, along with the increased expertise and procedures of review for arbitration, has altered the Court's response to arbitration clauses.(166)

Sometimes, as seen in Hubbard v. United States,(167) a subsequent legal development becomes a rival doctrine, which the Court cannot reconcile with the old interpretation. In Hubbard, the Court overruled United States v. Bramblett,(168) which held that courts and legislative committees were a "department or agency" under the false statement statute.(169) Dissatisfied with this interpretation, lower courts created a "judicial or adjudicative function exception," which contradicted Bramblett by ruling that misstatements to courts were outside the statute.(170) In Hubbard, the Court rejected Bramblett not only for its questionable reasoning,(171) but also to promote legal stability by removing the need for exceptions.(172)

Experience demonstrates that a court's interpretation may be impossible to apply. For example, in Swift & Co. v. Wickham,(173) the Court reconsidered its holding in Kesler u. Department of Public Safety.(174) Kesler required federal judges to initially determine whether a plaintiff had a straight preemption claim, which was ripe for hearing by a panel, or a claim requiring full statutory interpretation, which was beyond the panel's jurisdiction.(175) Finding this standard to be too subjective and a waste of resources, the Court rejected it.(176)

C. The "Prudential and Pragmatic Considerations"

The Court recently reiterated the grounds for overruling precedents in Patterson v. McLean Credit Union(177) and Planned Parenthood v. Casey.(178) In Patterson, the respondent urged the Court to overrule Runyon v. McCrary,(179) which held that Title 42 United States Code section 1981, prohibited racial discrimination in private contracts.(180) The Court did not overrule Runyon for three reasons. First, there was no "intervening development of the law" that "removed or weakened the conceptual underpinnings" of Runyon.(181) Second, Runyon did not upset the "coherence and consistency" in section 1981 law(182) and, similarly, Runyon did not interfere with Title VII's proscription on employment discrimination.(183) Third, Runyon was not "outdated" or "inconsistent with the sense of justice or with the social welfare."(184)

In Planned Parenthood v. Casey,(185) the Court reconsidered the highly divisive rule set down in Roe v. Wade.(186) The Court explained that a "wrongly decided" decision should not be reversed without some special justification.(187) The Court then set forth the following considerations to determine if reversal is justified: (1) the workability of the standard;(188) (2) whether changes in the law, as developed, make the old rule an aberration;(189) (3) whether premises of fact "have so [far] changed" that the precedent can no longer handle the issues involved;(190) and (4) the reliance interests and the consequences of overruling.(191)

In light of these considerations, the Court did not overrule Roe.(192) First, although Roe's holding was controversial, it was not an unworkable rule.(193) Second, the twenty years after Roe sired considerable reliance interests among women who "ordered their thinking around their ability to control their reproductive lives."(194) Third, Roe remained consistent with subsequent abortion cases,(195) as well as cases which further extended individual freedom in intimate relationships(196) and the right of privacy.(197) Finally, while medical advances altered some of Roe's "factual assumptions," they only affected the time limits on "viability" and not the central holding.(198) Therefore, on balance, the "precedential inquiry" favored reaffirming Roe rather than overruling it.(199)


The cases collected in Casey provide a blueprint for reevaluating precedent. Under this regimen, Imbler should be reversed for the following reasons: (1) the standard for applying absolute immunity, as set forth in Imbler and its progeny, is unworkable and produces undesirable incentives; (2) intervening developments in section 1983 immunity doctrine leave Imbler inconsistent with the Court's current approach; (3) other legal advances have undermined the "premises of fact" given in Imbler for absolute prosecutorial immunity; and (4) no legitimate reliance interests exist to excuse prosecutors from their civil rights violations.

A. The Unworkable Standard

1. Divining Prosecutorial Function

From the start, the Court understood that the Imbler rule was not user-friendly.(200) In Buckley v. Fitzsimmons, the Court attempted to simplify this problem by placing pre-probable cause actions outside absolute immunity.(201) However, probable cause is only a necessary, and not a sufficient, condition for absolute immunity. After a determination of probable cause, apparently by the prosecutor,(202) subsequent conduct could still fall within the administrative or investigative categories.

Therefore, a court still faces the awkward task of labelling a prosecutor's function. Imbler requires a trial court to determine when a prosecutor is acting as a prosecutor. This type of open-ended standard is reminiscent of the one rejected in Swift, under which a court has to determine the appropriate level of statutory interpretation before deciding if so much construction was required to give it, and not a three judge panel, jurisdiction.(203) Although it is fairly easy to identify the clearly administrative actions,(204) and even though some courts have found certain conduct so egregious that it falls outside the prosecutorial function,(205) there are many areas that defy easy classification. For example, it is unclear how a court should classify the following situations: a general policy to indict in sex offense cases merely on the basis of a complainant's allegations;(206) using a press-conference to draw in witnesses;(207) deliberately violating a state victim-impact law to prevent the victim's family from disputing a plea bargain;(208) or, distinguishing coercing witnesses from suborning perjury.(209) There is no simple answer to these situations. Still, the broad language of Imbler promises support for whatever label a judge wishes to slap on a prosecutor's "function."

Undoubtedly, reasonable minds disagree about what label to put on a prosecutor's functions. The polarized dispute in Buckley as to the classification of Fitzsimmons' conduct in retaining a pro-prosecution expert undercuts Justice Kennedy's optimistic prediction that federal courts can accurately distinguish between investigative conduct and conduct "preparatory" to prosecution.(210) Unable to precisely establish the outer bounds of absolute prosecutorial immunity and given the choice of possibly permanently immunizing numerous or no prosecutorial acts, "the restrictive view . . . is more consistent with a discriminating reading of the statute itself than is the first more embracing interpretation."(211)

2. The Bad Incentives of Absolute Prosecutorial Immunity

The Court has postulated that the absolute immunity granted by Imbler encourages undesirable behavior by litigants. In Buckley, the majority opined that immunizing the fabrication of evidence, which was later used at trial, would encourage prosecutors to try a case simply to maintain absolute immunity.(212) Meanwhile, the dissent in Buckley lamented that the majority's probable cause line invited prosecutors to get a probable cause determination as quickly as possible, even if it meant fabricating evidence and perjuring themselves before a magistrate, so as to start their immunity running.(213) At the other end, prosecutors might forego investigations they are ethically required to do.(214) Additionally, the dissent in Buckley claimed that the majority's view invited plaintiffs to circumvent Imbler by artful pleading.(215)

The upshot of the Supreme Court's predictions say little about its faith in the prosecutorial bar. Apparently, the Court believes that prosecutorial decision-making will be affected by the possibility for immunity in the same way that it was once believed that the potential for liability would affect choices. In Erie Railroad v. Tompkins,(216) the Court rejected nearly 100 years of case law upholding general federal common law because it encouraged litigants to manufacture diversity to indirectly obtain what they could not get directly.(217) Given the stakes involved in the criminal justice system, the incentives deriving from Imbler and Buckley prove even less tolerable.

3. The Bad Results of Absolute Prosecutorial Immunity

As Justice White asserted, absolute prosecutorial immunity should not cover all acts done as an advocate.(218) Most notably, no historical or policy argument supports immunizing the withholding of exculpatory evidence. Clearly, prosecutors are constitutionally and ethically required to turn over such evidence.(219) Moreover, police officers face liability for withholding exculpatory evidence from prosecutors.(220) Immunizing the deliberate suppression of exculpatory evidence contradicts why prosecutors may invoke defamation immunity when a witness turns out to be a liar or if the witness' past is suspect. A prosecutor does not aid a post-acquittal civil suit by providing the material showing bias or a lack of credibility as Brady requires.(221) In addition, unlike bringing an action lacking probable cause, suppressing evidence evades judicial correction.(222) Consequently, after Buckley, the strange situation exists where a prosecutor may lack absolute immunity for initiating a prosecution (quasi-judicial acts), but possess it while presenting a case and doing merely "lawyerly" acts.

A recently added wrinkle concerns post-conviction suppression. In Houston v. Partee,(223) the plaintiff claimed that the lead-prosecutor lied to his attorney about the existence of a third-party confession to the crime for which he had been convicted and imprisoned.(224) Despite the second confession and new eye-witnesses, the state maintained Houston's guilt throughout his post-conviction proceedings.(225) The court of appeals found that once the lead-prosecutor left the case, he could not have been acting as an advocate when he withheld the information from others in his office or Houston's counsel.(226) The court also took the extraordinary step of directing the clerk of the court to send a copy of its opinion to the Illinois Attorney Registration and Disciplinary Commission for further investigation.(227)

In Carter v. Burch,(228) an officer told investigator Beamer and prosecutor Burch about information that undermined the credibility of their complaining witness in an attempted murder case.(229) The alleged victim had told the officer, while brandishing a revolver, that she would be willing to shoot herself to frame her ex-husband.(230) Carter, her ax-husband, was tried and convicted for the superficial wounding of the complainant with the same type of gun.(231) Burch did not tell the defense about the victim's threat, either before or after Carter's trial. Three years later, the officer informed Burch's counsel of the complainant's statements, and in a new trial he was acquitted.(232) Carter sued, but the district court dismissed the suit against Burch.(233)

Applying the Imbler standard, the court of appeals found it immaterial when Burch learned of the complainant's statements since he was "clearly protected by absolute immunity."(234) The court figured that Burch's determination of the exculpatory nature of the evidence fell under his duties as advocate.(235) The court distinguished this case from Houston by noting that Burch was personally handling Carter's post-conviction proceedings.(236)

It is alarming, but the different results in Houston and Burch may be only a product of staff size and not staff conduct.(237) The separation of appellate from trial work now may affect a prosecutor personally. To stay absolutely immune, a prosecutor should divert attention from his or her courtroom activities while remaining, at least, nominally involved in subsequent post-conviction proceedings. Again, maintaining absolute immunity may "interfere with [a prosecutor's] exercise of independent judgment at every phase of his work, since the prosecutor might come to see later decisions in terms of their effect on his potential liability."(238)

4. Determining When a Prosecutor Determines Probable Cause

The Court's latest attempt to create a simpler standard for determining a prosecutor's function in Buckley actually complicated immunity determinations.(239) In Hill v. City of New York,(240) the Second Circuit faced an especially chilling case of prosecutorial misconduct. In Hill, the plaintiff, Ms. Hill, called the police after suspecting her son had been physically abused by his foster family.(241) The five-year old boy told his mother, his doctor, and the police that "Big Jesse" and "Little Jesse" inserted a piece of wood into his rectum.(242) However, despite the child's testimony, the assistant district attorney believed that Hill was the culprit.(243) In fact, he filed a report which alleged that Hill had used a stick to sexually assault the boy and his younger brother.(244) Subsequently, the assistant district attorney removed the younger boy from Hill's custody.(245)

The district attorney next videotaped an interview with the child in the presence of a social worker.(246) When questioned, the child reiterated that his foster-brother was the one who had hurt him.(247) Hearing this, Mr. Adago, the prosecutor, immediately stopped the interview.(248) Two days later, and after subsequent interviewing, Adago again taped an interview with the child.(249) This time the boy implicated his mother.(250)

Adago used the second tape to secure a warrant and an indictment against Hill.(251) The grand jury did not see the first tape and Adago filed two court documents stating that no exculpatory material existed.(252) Unable to post bail, Hill remained in jail for nine months. Hill only learned about the first tape after Adago "accidentally" sent it to her attorney.(253) A dismissal of the charges later followed on speedy trial grounds.(254)

Hill initiated a section 1983 suit against Adago and others for violations of her Fourth and Fourteenth Amendment rights.(255) Adago moved to dismiss on grounds of absolute immunity.(256) Concluding that it could not tell from the pleadings alone whether Adago was entitled to absolute immunity, the district court denied his motion.(257)

On appeal, the Second Circuit summarized Hill's causes of action against Adago as follows: "(1) unjustifiably directing that her children be removed from her home; (2) directing the police to arrest her without probable cause; (3) maliciously prosecuting her; (4) conspiring to present falsified evidence to, and to withhold exculpatory evidence from, a grand jury; (5) deliberately suppressing Brady material; and (6) fabricating evidence."(258) The court found that removal of a child from parental custody during a child abuse investigation was an act not entitled to absolute immunity.(259) Second, the court held that there was no absolute immunity for the false arrest claim.(260) Under Imbler, the court then dismissed Hill's claims regarding the initiation of the prosecution, the prosecutor's grand jury conduct, and his failure to turn over the first tape.(261)

The court then struggled with the fabrication of evidence claim.(262) The court held that "if before obtaining [the] second videotaped statement [the prosecutor] lacked probable cause to arrest Hill, and the results of that interview contributed to his finding probable cause, the interview would then be held to be an investigatory function."(263) Finding the pleadings insufficient to resolve this question, the court dismissed the appeal as it related to the district court's denial of Adago's dismissal motion.(264) Since it was beyond its jurisdiction, the court declined to address whether Hill had stated a cognizable claim.(265)

The Hill case demonstrates how Buckley added another layer of inquiry onto absolute immunity determinations. A court now has to resolve whether the alleged misconduct preceded and/or contributed to the prosecutor's determination of probable cause. This requires a court to examine the prosecutor's thoughts and intentions when he or she acted. This is the same factual investigation of a defendant-prosecutor's subjective judgments which Imbler found too burdensome to leave qualified immunity as a prosecutor's only defense.(266) This extra analytical step diverts the court's and a prosecutor's resources.(267) Meanwhile, the unresolved question in Buckley (i.e. whether fabrication of evidence itself creates a cause of action and not its presentation in some proceeding where immunity purportedly adheres) is sidestepped and may not be resolved until after a lengthy trial.

Imbler gave absolute immunity to a prosecutor when he or she acts as an advocate, but not an administrator or investigator.(268) Buckley sought to clarify Imbler by indicating that a prosecutor is an advocate only after probable cause is established.(269) However, both opinions muddied the standard by conceding that pretrial preparation is part of good advocacy.(270) Justice Kennedy's criticism of the Buckley majority for failing to recognize that a prosecutor may be an advocate, even before probable cause arises,(271) illustrates how foolish it is to try to separate the investigative element of proper lawyering from formal advocacy. While the existing rule affords some flexibility, it sacrifices the certainty and even-handedness that a legal standard ought to possess.(272)

In addition to its amorphousness, the Imbler rule creates bad incentives.(273) Moreover, as demonstrated by Carter v. Burch(274) and Houston v. Partee,(275) the standard leads to irrational results where the level of immunity depends on an office's division of appellate and trial work. Finally, as Hill displayed, decisions as to a prosecutor's function now involve a new inquiry about if, when, and how, the prosecutor determined probable cause. Determining if a prosecutor acted as a prosecutor/investigator or prosecutor/lawyer does not resemble a "simple limitation" every court can apply,(276) but a versatile description that differs with every court.

B. The Historical-Functional Approach and Imbler as "Abandoned Remnant"

1. Legal Developments and the "True Anomaly"

In Imbler, the Court equated a section 1983 action against a prosecutor with a malicious prosecution action.(277) To establish malicious prosecution, a plaintiff must ordinarily show the following elements: (1) a criminal proceeding against her attributable to the defendant; (2) termination of the action in the plaintiff's favor; (3) lack of probable cause for the action; (4) the defendant maliciously brought the action; and (5) the action caused the plaintiff harm.(278)

Buckley changed immunity in malicious prosecution actions by maintaining that prosecutors lack absolute immunity before probable cause exists.(279) Therefore, as a by-product of proving malicious prosecution, a plaintiff will establish lack of probable cause, which defeats absolute immunity. Thus, the latest attempt at implementing Imbler created a "true anomaly" that leaves Imbler's preclusion of malicious prosecution claims outside the new brightline.(280)

2. The New Approach to Immunities: No More "Freewheeling Policy Choices"

Imbler is not only at odds with its progeny, but also with the entire approach the Court uses for section 1983 immunity determinations. The Court in Imbler interpreted Tenney(281) as holding that "`immunities well grounded in history and reason'" were silently retained in the general language of section 1983.(282) However, the first case cited by the Court granting a prosecutor absolute immunity from malicious prosecution actions came eighteen years after Congress passed section 1983.(283) Moreover, this did not become the majority position until the early 1920s.(284) The well-established nature of legislative immunity prior to section 1983 was the linchpin of the Tenney Court's decision to find such immunity despite the statute's text:

Did Congress by the general language of its 1871 statute

mean to overturn the tradition of legislative freedom achieved

in England by Civil War and carefully preserved in the

formation of State and National Governments here? Did it

mean to subject legislators to civil liability for acts done

within the sphere of legislative activity? Let us assume,

merely for the moment, that Congress has constitutional

power to limit the freedom of State legislators acting within

their traditional sphere. That would be a big assumption.

But we would have to make an even rasher assumption to

find that Congress thought it had exercised that power. . . .

We cannot believe that Congress -- itself a staunch advocate

of legislative freedom -- would impinge on a tradition so well

grounded in history and reason by covert inclusion in the

general language before us.(285)

Considering the insignificant number of nineteenth century cases recognizing absolute prosecutorial immunity, the Imbler Court's interpretation is ridiculous.(286)

Not only is Imbler inconsistent with Tenney, it also contradicts the modern method of making immunity determinations, which can be called the historical-functional approach. According to this approach, a court must do the following: (1) identify the function the official engaged in while performing the alleged injurious act;(287) (2) identify the level of immunity, if any, an official performing such a function received at common law, prior to section 1983;(288) and (3) balance the policy interests of common law immunity and the purposes of section 1983, and if necessary, preclude or diminish the defense.(289)

The historical-functional approach developed in the late 1970s and early 1980s. In Butz v. Economou,(290) the Court articulated that the function, and not the status, of an official is dispositive for immunity purposes. In Butz, the Court held that administrative law judges performing "quasijudicial acts" deserved the same absolute protection from suit that traditional judges enjoyed at common law.(291) In Stump v. Sparkman,(292) the Court gave absolute immunity to a judge who ordered the forced sterilization of a young girl. The Court found that the order came within the defendant's role as judge.(293) The Cour reasoned that a long history of absolute judicial immunity antedated section 1983, and(294) that the nature of judicial decision-making -- choosing between competing parties -- required insulation from the inevitably dissatisfied losers.(295)

By 1982, the Court's approach still resembled a loose combination of historical reference and policy assessment. In Nixon v. Fitzgerald,(296) the President was given absolute immunity from suit for actions taken while in office. Although the Court drew upon the long history of "sovereign immunity" for the chief executive, the Court rested its decision on the "special functions" of the office, including the President's Constitutional responsibilities and the likelihood his decisions would invite suit.(297) In a companion case, the Court found that sound policy did not support absolute immunity for the President's close aides.(298)

In 1984, the Court reestablished the preeminence of history in immunity determinations. In Tower v. Glover,(299) a dissatisfied client sued the public defender claiming that the public defender had conspired with the prosecutor to convict the client.(300) The defense argued that the Court should extend public defenders the same absolute immunity afforded prosecutors for the same policy reasons.(301) The Court began by describing its two-tiered approach to immunity cases. The first tier required a "considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it."(302) If some immunity existed, the Court would move to the second tier and consider if the history or purposes of section 1983 countermanded its modern recognition.(303) Applying this framework, the Court examined the immunity accorded defense attorneys at 1871 common law and determined that those lawyers could face suit for intentional misconduct.(304) This ended the Court's inquiry. It declined to investigate how the policy concerns offered in Imbler applied to public defenders:

Petitioners' concerns may be well founded, but the remedy

petitioners urge [absolute immunity] is not for us to adopt. We do

not have a license to establish immunities from [sections] 1983 actions

in the interests of what we judge to be sound public policy. It is

for Congress to determine whether [sections] 1983 litigation has become

too burdensome to state or federal institutions and, if so, what

remedial action is appropriate.(305)

The primacy of historical support over policy judgments continued through the late 1980s. In Malley v. Briggs,(306) the Court found that police officers, who lied to secure an arrest warrant, were similar to complaining witnesses, who had no absolute immunity under common law in 1871.(307) The Court reiterated what was implicit in the Tenney decision, that absent evidence proving that an immunity was well-settled in 1871, separation of powers and rudimentary rules of statutory interpretation prevented the carving new unmentioned and unforeseen immunities out of section 1983 today.(308) The Court has clearly indicated that the judiciary cannot make a "freewheeling policy choice" concerning the level of immunity.(309) This mantra of history before policy can be found throughout the Court's recent immunity decisions.(310) As one long-time follower of the Court in this area explains:

Recently, the Court seems to be using every available opportunity to

reiterate that it confers immunities primarily on the basis of the

common law of 1871, and not because of its own views of policy....

Buckley's signal to those claiming absolute immunity is this: be sure

that the common law of 1871 is on your side. Policy alone will not


The Court has also taken a narrower view of absolutely immune "quasi-judicial" conduct. At common law some acts were considered so judge-like that they were qualifiedly immune from suit.(312) In modern parlance, the Court has treated "quasi-judicial" acts as deserving of the absolute immunity judges received at common law.(313) In Cleavinger v. Saxner,(314) the Court listed the following factors warranting absolute quasi-judicial immunity:

(a) the need to assure that the individual can perform his functions

without harassment or intimidation; (b) the presence of safeguards

that reduce the need for private damages actions [to deter abuses];

(c) insulation from political influence; (d) the importance of

preceden[ce] [in the official's decisions]; (e) the adversarial nature of

the process [the official is involved in]; and (f) the correctability of

error on appeal.(315)

In Cleavinger, the Court found that a prison disciplinary committee was not insulated and independent because it consisted of subordinate prison officials deciding disputes between their co-workers and prisoners. The committee argued the Butz factors should not control since prosecutors secured absolute immunity in Imbler despite exercising "broad and generally unreviewable" discretion.(316) The Court never addressed this contention and instead distinguished the committee from a classic adjudicatory body.(317)

Today, prosecutors would rarely meet the requirements for absolute immunity as "quasi-judicial" officials, especially when evaluating evidence for Brady purposes. As extensively detailed below, no "safeguards" currently serve as an adequate substitute for civil liability to deter abuses.(318) Moreover, prosecutors are not "politically insulated" as the Court obscured in Buckley.(319) In addition, prosecutors often have great leeway in their handling of cases, and are not bound by office precedence. Obviously criminal prosecutors function in an adversary setting, where the stakes often increase the combativeness. Finally, what a prosecutor does outside the court's eyes may escape judicial scrutiny.(320)

The post-Imbler decisions, making 1871 immunity the upper bound to the immunity an official may receive, comprise an "intervening development of the law."(321) The Court's vigilant application of the historical-functional approach in a "virtually unbroken line of cases"(322) from Tower through Buckley means that doctrine "can lay a legitimate claim to respect as a settled body of law."(323) However, this doctrine is at odds with the policy-driven decision in Imbler. Justice Scalia recognized in Burns the flaws of Imbler, but considered stare decisis a barrier to reversal.(324) However, as detailed above, Buckley deeply eroded any stability and certainty Imbler possibly provided in 1991.

C. Changes Eroding Imbler's Policy Judgments

If Buckley signals the demise of absolute prosecutorial immunity, prosecutors should not be too concerned. The coalescence of disparate changes in the law makes the immunity afforded prosecutors at 1871 common law, which is akin to qualified immunity, sufficient insulation for their good-faith discretionary acts. In short, Imbler's "premises of fact" have lost their validity,(325) undermining that Court's conclusion of the necessity of absolute immunity.

The Imbler Court recited the following policy reasons to support its decision: (1) prosecutors protected only by qualified immunity would be paralyzed and distracted by the prospect (or reality) of angry defendants routinely retaliating with civil suits; (2) suits surviving pleadings would require a retrial of the criminal case, thus placing a greater burden upon prosecutors who have to defend these cases years afterwards; (3) prosecutors fearing suit would be less likely to present the seemingly honest but nefarious witness, and thereby decrease trial accuracy; (4) post-trial reviewers would slant their decisions against defendants to avoid suits against prosecutors; and (5) other avenues of deterrence exist to punish the bad prosecutor, including disbarment and criminal prosecution.(326)

1. Beating and Barring Vexatious Suits

a. Changes With Respect to Qualified Immunity

When the Imbler Court asserted that prosecutors would have a harder time attaining qualified immunity than other executive officials, they had a now antiquated rule in mind. In 1976, a defendant wishing to assert qualified immunity had to prove a reasonable good-faith belief that he acted lawfully.(327) The subjective element often became an issue for the jury to decide along with its determination liability.(328) Six years later, in Harlow v. Fitzgerald,(329) the Court removed the subjective element of the qualified immunity defense because deciphering "subjective intent" often forced expensive trials.(330) The Court held that "government officials performing discretionary functions [would receive civil immunity] insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."(331) Under this new rule, the official would plead her immunity defense on a summary judgment motion. No further discovery would begin "[u]ntil this threshold immunity question [was] resolved."(332)

Another change in qualified immunity decisions came in 1985. Prior to 1986, only the denial of absolute immunity by a trial judge was immediately reviewable. In Mitchell v. Forsyth,(333) the Court held that because qualified immunity is not a defense, but rather a right not to stand trial (effectively lost if a case proceeds to trial), it was a "collateral order" amenable to interlocutory appeal.(334) In reaching this conclusion the Court relied heavily on Harlow.(335) In addition, appellate review is de novo, as qualified immunity is now a question of law and not fact.(336)

In Anderson v. Creighton,(337) the Court fine-tuned Harlow by permitting limited discovery of issues necessary for establishing the defense, thus increasing the likelihood of a summary judgment disposition.(338) While the movant must show that no genuine issue of material fact exists,(339) the plaintiff must have some sufficient factual support for his or her claim.(340) For those who laud Buckley as permitting flexibility, the "insufficiency/sufficiency" standard for summary judgment offers even more room for trial courts to sort the worthwhile from the worthless claims, while capping the amount of protection the wrong-doing prosecutor may obtain. In any event, district courts still have the right to control discovery and thereby to deny plaintiffs indiscriminate requests for all files held by an official.(341)

"Heightened pleading" rules also increase a defendant's chances of successfully asserting qualified immunity. After an official asserts the defense, "the plaintiff must put forward specific, nonconclusory factual allegations which establish malice, or face dismissal."(342) The Supreme Court has recently rejected "heightened pleading requirements" for section 1983 suits against municipalities as inconsistent with notice pleading under Federal Rule of Civil Procedure 8.(343) However, heightened pleading rules for immunity cases have persisted.(344)

The revolution in qualified immunity/summary judgment determinations has frequently been acknowledged by the Court as effectively protecting officials from "vexatious or retaliatory" suits.(345) In Burns, the Court stated:

Harlow . . . "completely reformulated qualified immunity" . .

[it] was "specifically designed to avoid excessive disruption of

government and permit the resolution of many insubstantial

claims on summary judgment," and we believe it sufficiently

serves [that] goal. . . . Accordingly, it satisfie[d] . . . principal

concerns underlying our recognition of absolute immunity.(346)

Thus it is preaching to the converted to point out the demise of the first policy concern of Imbler, namely that asserting qualified immunity would entail distractive litigation. Meanwhile, Buckley's factual inquiry as to probable cause has made the assertion of absolute immunity more difficult, as exemplified in Hill.(347) This added step is not only inefficient but unnecessary now that qualified immunity amply protects "all but the plainly incompetent or those who knowingly violate the law."(348)

b. Shrinking and Scaring the Plaintiff Pool

The Imbler Court worried that defendants would turn their resentments against prosecutors in civil courts if allowed to do so.(349) However, vengeful ax-defendants face greater obstacles today than in 1976. First, the Supreme Court has limited the availability of a section 1983 action for ax-defendants. In Heck v. Humphrey,(350) the Court held that to recover damages, a section 1983 plaintiff must first show that his or her "conviction or sentence has been reversed on direct appeal, expunged . . . declared invalid by [the appropriate state] tribunal . . . or called into question by a federal court's . . . writ of habeas corpus."(351) The Court again equated a convict's section 1983 action addressing his or her trial with that for malicious prosecution, which requires a plaintiff to show that he or she prevailed at the prior criminal proceeding. Absent this showing, a convict would not yet have a cause of action.(352)

Tougher habeas corpus rules have also added to the burdens which the pertinent class of section 1983 plaintiffs must overcome. Shortly after Imbler, the Court ruled Fourth Amendment issues heard below could not be the subject of a federal habeas corpus petition.(353) Next, the Court modified the holding of Fay v. Noia,(354) by preventing the "deliberate bypass" of state courts to get to federal court, and thus reducing the ability of prisoners to get a reversal.(355) Also, in 1977, a Congressional amendment allowed district courts to apply a quasi res judicata rule to reject successive redundant petitions.(356) These and other changes in the habeas corpus laws have contributed to the very small success rate.(357) So long as ax-defendants remain in prison, prosecutors need not worry about any vindictive civil actions they may wish to take.

Vengeful ax-defendants advancing meritless claims risk greater civil penalties today than in 1976. The 1983 amendments to the Federal Rules of Civil Procedure increased the likelihood that vexatious and frivolous litigation would result in sanctions against a plaintiff instead of an extorted settlement award. Lawyers are required to investigate such claims and assure "good ground to support" the pleadings.(358) This rule change was so significant that it led to an avalanche of motions for its imposition, and then to Congressional reform to decrease the incentives to file for sanction by directing penalty monies to the trial court.(359)

2. Suing the Municipality in Place of the Prosecutor

The Imbler Court found that without absolute immunity, a case surviving the pleadings would often force a retrial of a claim years after the disputed conduct occurred.(360) The Court believed this would disadvantage the prosecutor/defendant.(361) However, the plaintiff, as always, must prove a constitutional deprivation.(362) In addition, Harlow lessened the burden on defendants claiming qualified immunity; they need not face a retrial if they establish the objective reasonableness of their conduct.(363) Changes in the law may permit these "retrials" anyway--against the prosecutor's supervisor.

Two years after Imbler, the Court overturned a portion of Monroe v. Pape,(364) by recognizing local governmental entities as potentially liable "persons" in section 1983 suits.(365) Municipalities do not enjoy any immunity, having possessed none at common law.(366) While the Monell Court ruled respondeat superior an improper basis for suit against a municipality, the Court paved a route to sue grossly negligent supervisors in City of Canton v. Harris.(367) Today, a district attorney who is "deliberately indifferent" to the constitutional abuses of her assistants may be forced to defend their past conduct.(368) In states like New York where the district attorney ranks as a "final policymaker" for the county or city, those entities also may end up as defendants.(369)

Walker v. City of New York(370) illustrates how plaintiffs may use municipal liability to circumvent the blameworthy prosecutor's absolute immunity. Walker won reversal of his murder and armed robbery convictions after decades of wrongful incarceration.(371) The Assistant District Attorney, J. Paul Zsuffa, suppressed parts of an alleged eye-witness statement claiming Walker committed the robbery with a second person, one whom Zsuffa learned was imprisoned at that time.(372) Zsuffa had the witness testify before a grand jury and leave out the inconsistency.(373) In addition, Zsuffa did not inform the defense that the victim failed to identify Walker in a lineup.(374) Walker sued New York City alleging it failed to train its police and assistant district attorneys not to suborn perjury or suppress exculpatory evidence.(375) The Second Circuit found Walker had a triable claim.(376)

The evolution of municipal liability serves to undermine Imbler in two ways. First and more generally, its emergence indicates Imbler no longer reflects societal notions of what is just.(377) Society now places greater emphasis on accountability, and especially on compensating those deprived of their civil rights.(378) Second, the immunity extended in Imbler no longer rescues a prosecutor's office from spending time and resources defending against civil rights actions long after the injurious acts occurred. Instead, absolute prosecutorial immunity may only deprive courts and litigants of the truly guilty party.

3. The Recognition of Absolute Witness Immunity

The Imbler Court worried that prosecutors sheltered only by qualified immunity would refrain from putting a shady, yet sincere, witnesses on the stand.(379) In 1976, the presentation of a disreputable witness could have resulted in a civil jury trial to determine: (a) the witness' veracity; and (b) whether and when the prosecutor knew of any falsehoods.(380) By 1983, however, the Court extended the defamation immunity present at common law to testifying witnesses.(381) So important was the need for unrestrained witness testimony that the common law barred defamation actions based on any statements made during a court proceeding. An ordinary witness could not be sued at all, while a complaining witness could be sued only for malicious prosecution.(382) This immunity against defamation suits also extended to attorneys who elicited false testimony.(383) Thus, Briscoe protects prosecutors who present uncoached, untruthful witnesses, and thereby satisfies the Imbler Court's fourth policy concern without the overkill of absolute immunity.(384)

4. Post-Conviction Review and Changes in Res Judicata

The fourth justification offered in Imbler for absolute immunity was that appellate review would be tainted by the looming prospect of prosecutorial liability if constitutional defects were uncovered.(385) This fear may also have been rooted in the then unproductive rules for qualified immunity.(386) In any event, subsequent changes in res judicata rules allowed states to reduce this risk if it ever existed. In 1976, the Court found Imbler could not rest the merits of his claim on the habeas court's findings of error because Pachtman was not a party to that action.(387) Subsequently, the Court held that state law governs the preclusive effect of a state court decision upon a subsequent section 1983 action.(388) Thus, states can create rules preventing issue or claim preclusion from accompanying appellate or habeas corpus decisions.(389) Reversal of a conviction need not equate to a civil judgment against a prosecutor. Indeed, an appellate or habeas corpus reversal may not even be admissible evidence in the subsequent civil suit.(390)

It is true that Heck's requirement that a conviction be set aside before an action arises seemingly increases the pressure on reviewers sympathetic to prosecutors not to find constitutional flaws.(391) However, this concern may deserve nothing more than a sincere "so what?" The Court tolerates whatever impact the looming civil liability of police officers has on reviewing judges.(392) There is no valid reason to skew determinations in favor of wayward lawyers who are better acquainted with civil rights than police officers. Some judges may be unduly protective of prosecutors, as the next section sadly describes. But to temper suit against all bad prosecutors on the expectation that some bad judges will be so moved out of concern for a prosecutor's pocketbook that they will deny a prisoner her freedom, wrongly panders to an unacceptable, if not imaginary, bias.(393)

5. The Unfulfilled Promise of Alternative Deterrence

The Imbler Court assured that whatever wrongs absolute civil immunity shielded, professional or other prosecutorial bodies would uncover and discipline.(394) Twenty years after Imbler, the results of letting these foxes guard the hen house is unquestionably far below the standard that the Court, or even an ardent cynic, must have anticipated. Researchers have repeatedly found that prosecutorial misconduct gets published in case reporters, but not punished by bar associations.(395)

In his exhaustive piece on prosecutorial discipline, Professor Richard A. Rosen searched all public filings and contacted every state bar association for disciplinary cases involving the suppression of exculpatory evidence.(396) While finding numerous opinions where courts condemned prosecutorial misconduct, Professor Rosen found few instances where a bar association followed up with sanctions.(397) Rosen found only nine cases where a Brady violation precipitated disciplinary action.(398) Of these, three resulted in no action, four resulted in minor sanctions such as a reprimand, caution or censure, and only two cases ended in a recommendation for disbarment.(399)

In the first case, Price v. State Bar of California,(400) Deputy District Attorney Price had altered evidence at a murder trial to secure a conviction.(401) Fearing his acts would be discovered, he offered the defendant a favorable sentence recommendation in exchange for him forgoing an appeal.(402) The state bar found him guilty of acts of moral turpitude, violating his attorney's oath, suppressing evidence, and misleading the judge, jury and/or other party.(403) While the state bar recommended disbarment, the state supreme court took pity on Price, and reduced the penalty to a suspension.(404)

The second case where disbarment was recommended for acts commensurate with a civil rights violation was Virginia State Bar ex rel Sixth District Committee v. Read.(405) The Read case began when, amid an arson and murder trial, prosecutor Read's chief eyewitness recanted having seen defendant Mesner at the crime scene. Read asked the witness, Sils, if he could testify that the man he saw looked like Mesner.(406) However, Sils not only had come to doubt his identification, but after seeing Mesner in court, became convinced they were prosecuting the wrong man.(407) Read decided not to call Sils and to not tell the defense about Sils' change of heart.(408) A few days later, a concerned Sils contacted Mesner's attorney.(409) After Read rested, the defense called Sils to testify.(410) Only then did Read attempt to inform defense counsel of Sils' retraction.(411) The charges were dismissed by the state.(412)

The Virginia State Bar Disciplinary Board moved to disbar Read.(413) It noted the trial court had issued a discovery order for any exculpatory information, including information as to identification witnesses.(414) The Board found that Read intentionally violated a disciplinary rule by failing to disclose to a defendant all information required by law, and that he "`would have knowingly permitted Mesner to be convicted of arson and murder' without letting a jury consider Sils'" negative identification.(415)

On appeal, the Virginia Supreme Court reversed.(416) The court found that because Mesner's counsel knew of Sils' testimony in sufficient time to make use of it at trial, no Brady violation occurred.(417) The court cited four cases in support; however, all dealt with post-conviction claims centering on the lack of prejudice and not whether the prosecutor properly disclosed material.(418) These cases were completely beside the point.(419) It is beyond doubt that Brady requires prosecutors to turn over statements affirmatively declaring the defendant was not the person likely to have committed the crime.(420) Once it is clear that Sils' testimony was Brady material, Read was obliged by the judge's order, and by ethical cannons, to turn over the information.(421) That Sils was diligent enough to come forward for Mesner's sake should not have spared Read from punishment. The remarkable interpretation of the Virginia Supreme Court hardly encourages reluctant bar associations to investigate prosecutorial misconduct.(422)

Criminal action against prosecutors who violate civil rights is also more myth than truth. Only one such case has been located, United States v. Brophy.(423) Brophy "willfully deprived an individual of his constitutional rights [by] `suborn[ing] perjury; fabricat[ing] evidence and materials and introduc[ing] at state proceedings knowingly false, misleading and perjured testimony and suppress[ing] favorable and exculpatory evidence, materials and testimony.'"(424) All this got him a $500 fine.(425) Brophy was automatically suspended because of the conviction, but the New York Supreme Court, Appellate Division, reduced the sanction to censure, finding that Brophy already "`had suffered the stigma of a criminal conviction.'"(426)

Whatever the lapses (or motives) of the judiciary, bar associations, or criminal prosecutors, they have failed to provide the deterrence that excused absolute prosecutorial immunity. One judge has stated that "in the justice delivery system, these alternatives are seldom if ever actually applied. It is an unacceptable fraud on the public since prosecutors seldom prosecute prosecutors and bar associations infrequently take punitive action to correct prosecutorial suborned perjury."(427)

As a postscript, no adverse action befell the cast of prosecutors discussed in this Article. Larry Wharrie, whose deliberate suppression of a third-party confession moved the Seventh Circuit to order its opinion be sent to the state bar committee, moved to Grundy County, Illinois, and hung out a shingle.(428) Fifty-percent of his practice includes criminal defense.(429) The Illinois Attorney Registration and Disciplinary Commission reported no public action resulted from any possible investigation.(430)

William T. Burch, who never turned over statements by an alleged victim that suggested a hoax,(431) never left the Loudon County District Attorney's Office.(432) In reviewing Burch's case, the Virginia Courts again rebuffed the only state bar to show any real interest in disciplining prosecutorial abuse.(433) Beverly Read, benefactor of the Virginia Supreme Court's curious interpretation of Brady and ethical rules,(434) did eventually leave practice, voluntarily surrendering his license because of a "disability."(435) Richard Adago, who allegedly coaxed a four-year old child to blame his mother for abuse and then suppressed a videotape where the boy said otherwise,(436) left the Manhattan District Attorney's Office for a private law firm.(437) His specialty is family law.(438)

D. The Absence of Valid Reliance Interests

In Monell, the Court found municipalities could not have reasonably relied on the earlier rejection of respondeat superior liability as a green light to disobey civil rights laws.(439) Correspondingly, with the multitude of rules and laws aspirationally cited by the Imbler Court, no tears ought to be shed for the prosecutor who cries he would not have violated a person's civil rights if he knew he would actually be held responsible for his misconduct. The reliance interests of prosecutors are even less than that of the municipality in Monell. There, it could at least be argued that city managers relied on Monroe when obtaining indemnification insurance.(440) Neither prosecutors nor their indemnifiers can claim such reliance, as Imbler never provided prosecutors total immunity and Buckley further eroded any assumption that prosecutors are untouchable.

E. How Imbler Would Be Decided Today: An Illustration

It is 1996, not 1976, and District Attorney Robert Pachtman has just written the governor about newly discovered evidence in the Imbler murder case. Pachtman asks the governor to stay the scheduled execution. How does Imbler express his gratitude? He sues Pachtman for all that he is worth alleging that Pachtman knew of this evidence before probable cause existed.

Recall that Imbler sued claiming the following: (1) Pachtman knew or should have known Costello was lying;(441) (2) Pachtman suppressed exculpatory evidence denying him a fair trial;(442) and (3) based upon these and other acts, Pachtman maliciously prosecuted a man he knew to be innocent.(443)

Today, Imbler could only make his claim after securing reversal of his conviction,(444) and that ruling would have no preclusive effect on his civil complaint.(445) Under the rule of Briscoe, defamation immunity would preclude the first cause of action.(446) Under Buckley, the second and most alarming claim -- that Pachtman buried exculpatory evidence -- would be thwarted.(447) Most telling is how the third claim would fare. The malicious prosecution claim would continue identically under either qualified or absolute immunity. In either case, if Pachtman knew that his witness was lying -- and thus knew that he lacked probable cause to charge Imbler -- the claim could progress.(448) Because of Buckley, the issue of probable cause would be examined regardless of whether Pachtman claimed qualified or absolute immunity. Under a qualified immunity standard, the issue of malice would require little additional investigation as it appears intertwined with the absolute immunity issue of whether one could reasonably find that Costello's testimony lent probable cause to the action.

Assuming Robert Pachtman's post-conviction investigations were, in the words of Imbler's attorney, "`[i]n the highest tradition of law enforcement and justice,'"(449) it would seem just that armed only with qualified immunity, the Pachtmans of the world need not fear suit. But the larger point is that after Burns and Buckley, the Pachtmans of the world may face suit anyway. Since absolute immunity cannot prevent the "good" prosecutors from facing some occasional litigation, why continue the rule when it may shield the "bad" ones who wait until the trial to misbehave? Moreover, under a qualified-only immunity standard, there is no time wasted with the nebulous issue of the prosecutor's role; the focus is immediately on the wrongdoing. It is foreseeable that with culpability at the forefront, the "bad" prosecutors would settle their cases quickly to avoid the unwanted precedent.

Furthermore, prosecutors may also reap a benefit from a qualified only immunity standard. Plaintiff's pleadings must be accepted as true under an absolute immunity inquiry.(450) Therefore, many good prosecutors (who ultimately prevail on a dismissal motion) have still had their name besmirched through published decisions repeating the plaintiff's accounts of prosecutorial misconduct. These prosecutors appear merely to win by a technicality, not because the plaintiff's charges lack evidence, but because the prosecutor acted in an immunized role. If the same prosecutor prevailed by way of a qualified immunity summary judgment, it would be because the plaintiff failed to show a genuine issue of fact indicating misconduct. Therefore, under present qualified immunity rules, the honest prosecutor may face suit but, in all likelihood, will not face a trial or long discovery process. Thus, she can expect her indemnifiers to fully defend her honor, without unnecessarily diverting her energies.

The justifications for stare decisis include certainty, reliance, equality, consistency, efficiency, and the appearance of justice.(451) The Imbler approach instituted three functional "roles" of the prosecutor, with only the advocacy function insulated from federal suit.(452) No statutory language exists to concede this immunity, nor to confine it. Furthermore, it was inconsistently applied throughout the 1980s. The "probable cause" standard of the 1990s suggests that all post-arrest activity may be protected, regardless of its illegality, while pre-arrest actions are heretofore considered with respect to their reasonableness. Municipalities may pay in suits in place of the immune prosecutor, something they usually do anyway under modern indemnification plans,(453) but in more complex and inefficient actions. Meanwhile, the newer rules for qualified immunity provide trial judges a broad and flexible standard that lets them weed out frivolous suits without closing out meaningful claims. Finally, absolute prosecutorial immunity is unfair. Prosecutors enjoy absolute immunity in their role as an advocate, while subsequent interpretations of section 1983 have denied such broad protection to public defenders, prison boards, and a host of other officials representing one side in an adversarial process. In sum, the justifications for stare decisis are nowhere present or furthered by Imbler, and the decision should be overruled.


A. Fabrication of Evidence as a Section 1983 Cause of Action

Presenting altered or fabricated evidence to a grand jury or a court is illegal. When false evidence impedes a fair trial, the defendant's constitutionally protected civil rights are violated.(454) However, Justice Scalia and the Seventh Circuit suggested that defamation immunity could immunize prosecutors presenting fabricated evidence before a judicial proceeding.(455) No cause of action would exist because the "harm" occurred at an immunized setting.(456) This interpretation would mean that prosecutors could begin illegal or unethical conduct outside a courtroom, and then cloak their actions with immunity upon entering its doors. The unlawful presentation of fabricated evidence before a judicial proceeding would become an "intervening act" breaking the causal chain of a fabricated evidence claim.

It is presently unclear whether immunity may reach back to cover misconduct engaged in before formal presentation of a case. In Malley v. Briggs, the Court held that a judicial officer's issuance of an arrest warrant based on the officer's patently false affidavit did not break the chain of causation.(457) Similarly, the funnelling of fabricated evidence through a witness with absolute defamation immunity should not filter out liability for causing the continued incarceration of an innocent person. The Buckley majority implicitly affirmed this when they forbade the subsequent calling of a grand jury to "retroactively transform" the district attorney's investigative misconduct into absolutely immune trial conduct.(458) However, the dissent asserted that prosecutors can now lie to grand juries or magistrates to obtain probable cause and start their immunity running.(459) Thus the Court harbors conflicting understandings of how the common law immunities ought to function today.

At common law, immunities were cropped to prevent their misuse. A complaining witness who testified falsely to advance her illegitimate suit could not rely on defamation immunity to escape a malicious prosecution action.(460) Recognizing this, the Second Circuit, prior to Buckley, permitted suits against an immunized witness who conspired with a prosecutor to suborn perjury and, thereby deprive an individual of her constitutional rights.(461)

B. Malicious Prosecution as a Section 1983 Cause of Action

A considerable question remains as to whether malicious prosecution even constitutes a section 1983 cause of action. The Second, Fourth, Fifth, and Ninth Circuits accept malicious prosecution as a permissible section 1983 claim.(462) The First and the Tenth Circuits do not.(463) In 1994, a plurality of the Supreme Court suggested an arrest and prosecution deliberately done without probable cause may permit a section 1983 action grounded in the Fourth Amendment, while other members of the Court found suit may lie as a matter of substantive due process.(464) Of the five different opinions in that case, none commanded a majority.(465) Deciding immunity before resolving the question of a cause of action defies Court precedent as well as common sense.(466) Nevertheless, while the status of malicious prosecution and fabricated evidence remain unclear, jurists quibble over what hat the prosecutor wore when committing misconduct.(467)


A case will come before the Supreme Court where a plaintiff has suffered because of a prosecutor's deliberate suppression of exculpatory evidence. The neglect of bar associations to discipline unethical prosecutors invites it. Though no common law immunity insulated such acts, a lower court will dismiss it solely because of Imbler. In anticipation of this case, the above arguments are marshalled to demonstrate something the Court probably already knows; that Imbler was a misstep along the way of the historical-functional approach, and remains out-of-step with its current practice. Rather than removing Imbler piecemeal, as in Buckley, the Court should now rectify its mistake. If the policy arguments for absolute immunity propounded in 1976 are still salient, Congress can carry the onus of rewriting the law -- and explaining to constituents why prosecutors can violate their civil rights with near impunity.

For now, some ameliorative steps may be taken. First, legislatures may enact laws providing an alternative forum for compensating the wrongly convicted. Several states already offer some minimal compensation to those wrongly incarcerated.(468) Second, state bar associations can and must pledge greater time and effort into the investigation and rectification of prosecutorial misconduct. Courts may help by installing contempt and reporting mechanisms. For instance, the Second Circuit stated that when faced with prosecutorial misconduct it may: (1) reprimand the offending prosecutor by name in a publicized opinion; (2) direct the trial court to initiate appropriate disciplinary action; or (3) impose sanctions such as suspension from all courts in the circuit.(469) Finally, Congress could create a new remedial civil rights law that had no immunity defenses.(470)

All of these actions could take place without any stare decisis implications. Indeed, compensation and deterrence may be best achieved via this route rather than through our lottery-esque civil legal system. The aforementioned changes could supplement or supplant civil liability. Nevertheless, they have not come over the last twenty years of absolute immunity. Perhaps if the burden of inertia for legal change rested upon the prosecutorial bar and not with dispersed and aggrieved citizens, such beneficial proposals would stream out of bar associations, courthouses, and legislatures.

The Imbler Court adopted Judge Hand's conclusion that it is "better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."(471) However, now that the legal system has aggressively acted to allay the "dread," it is irresponsible and intolerable to overlook foreseeable and redressable wrongs. The Court should act before another deprivation of rights at the hands of a prosecutor goes without a remedy. (1) Von Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535, 554 (1866).

(2) 424 U.S. 409 (1976).

(3) See infra notes 8-23 accompanying text.

(4) See infra notes 24-150 accompanying text.

(5) See infra notes 151-99 and accompanying text.

(6) See infra notes 200-453 and accompanying text.

(7) See infra notes 454-67 and accompanying text.

(8) 42 U.S.C. [sections] 1983 (1994); See Sheldon H. Nahmod, Civil Rights & Civil Liberties Litigation [sections] 1.03 (2d ed. 1986) (indicating that section 1983 was modeled after section two of the Civil Rights Act of 1866 and that a civil remedy was afforded after the Civil Rights Act of 1871).

(9) Monroe v. Pape, 365 U.S. 167, 172 (1961).

(10) 42 U.S.C [sections] 1983 (1994).

(11) 42 U.S.C. [sections] 1983 (1994).

(12) 341 U.S. 367 (1951).

(13) Id. at 376.

(14) Id. at 372. Federal legislators were immunized criminally for acts taken in accordance with the Speech or Debate Clause. Kilbourn v. Thompson, 103 U.S. 168, 201-05 (1880). In addition, the Court observed that 41 of 48 state constitutions contained similar protections for legislators. Tenney, 341 U.S. at 375-76 n.5.

(15) Tenney, 341 U.S. at 377.

(16) Id. at 376.

(17) Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (Hand, J.) (upholding immunity of two attorney generals and mid-level Justice Department officials in wrongful imprisonment action), cert. denied, 339 U.S. 949 (1950).

(18) Paul M. Bator Et Al., Hart & Wechsler's The Federal Courts And The Federal System 1294-95 (3d ed. 1988); see Fed. R. Civ. P. 12(b)(6).

(19) Burns v. Reed, 500 U.S. 478, 486 (1991). The scant number of actors absolutely immunized at common law has created a presumption for qualified immunity. Id. at 486. As a result of this presumption, the Court has been "quite sparing" in granting absolute immunity. Id. at 487 (citing Forrester v. White, 484 U.S. 219, 224 (1988)).

(20) Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

(21) Anderson v. Creighton, 483 U.S. 635, 646 (1987).

(22) See, e.g., Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam) (holding that secret service agents were entitled to qualified immunity despite a mistake, since they had a reasonable belief that plaintiff had sent threatening letters); Mitchell, 472 U.S. at 535 n.12 (noting that qualified immunity applied when there was a "legitimate question" as to whether the conduct was unlawful).

(23) Anderson, 483 U.S. at 646-47 n.6. Currently, many circuit courts have different rules for treating the qualified immunity defense. Some circuit courts are less plaintiff-friendly than others. See generally Kathryn R. Urbonia, Qualified Immunity from Damages, in 2 Section 1983 Civil Rights Litigation & Attorneys' Fees 1994 7 (PLI Litig and Admin. Practice Course Handbook Series No. H-512, 1994) (overviewing qualified immunity defense).

(24) 424 U.S. 409 (1976).

(26) Id. at 411.

(27) Id.

(28) Id.

(29) Id. at 412. An accomplice in the second crime corroborated Imbler's alibi. Id.

(30) Id. (31) Id. Pachtman discovered other witnesses who also corroborated Imbler's alibi. Id. Moreover, the passerby's credibility was undermined when Pachtman found that he had lied about his criminal record and certain observations. Id.

(32) Id. The Court repeated the comments of Imbler's counsel that described Pachtman's post-trial detective work as "`[i]n the highest tradition of law enforcement and justice,'" and as "a premier example of devotion to duty." Id. at 413 (quotations omitted).

(33) Id. at 413.

(34) Id.

(35) Id. at 416.

(36) Id.

(37) Without holding a new hearing, and only upon the state court records, the district court found eight instances of prejudicial misconduct, including the prosecution's use of false or misleading testimony from the passerby and the suppression of fingerprint evidence. Imbler v. Pachtman, 500 F.2d 1301, 1302 (9th Cir. 1974). The California courts had rejected these grounds. Id.; Imbler v. Pachtman, 424 U.S. 409, 416 (1976).

(38) Imbler, 424 U.S. at 415. Imbler's civil complaint tracked the district court's findings of error in the habeas corpus proceeding.

(39) Imbler, 500 F.2d at 1302. See, e.g., Marlowe v. Coakley, 404 F.2d 70 (9th Cir. 1968) (holding that prosecutors are "immune from civil suit for acts committed in the performance (of duties constituting an integral part of the judicial process"), cert. denied, 395 U.S. 947 (1969).

(40) Tenney v. Brandhove, 341 U.S. 367 (1951).

(41) Imbler, 424 U.S. at 418.

(42) Id. at 419 n.13 (emphasis added).

(43) Id. at 421.

(44) 44 N.E. 1001 (Inc. 1896).

(45) Imbler, 424 U.S. at 422.

(46) Id. at 421.

(47) Id. at 424.

(48) Id. at 425. The Court asserted:

The prosecutors possible knowledge of a witness' falsehoods, the

materiality of evidence not revealed to the defense, the propriety of a

closing argument, and ultimately in every case -- the likelihood that

prosecutorial misconduct so infected a trial as to deny due process, are

typical of issues with which judges struggle in actions for post-trial

relief, . . . [t]he presentation of such issues . . . often would require a

virtual retrial of the criminal offense in a new forum, and the resolution

of some technical issues by the lay jury. It is fair to say, we think, that

the honest prosecutor would face greater difficulty in meeting the standards

of qualified immunity than other executive or administrative officials.


(49) Id. at 426.

(50) Id. at 427.

(51) Id. at 428 (citing Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950)). In Gregoire, Judge Hand indicated:

There must indeed be means of punishing public officers who have been

truant to their duties; but that is quite another matter from exposing such

as have been honestly mistaken to suit by anyone who has suffered from

their errors. As is so often the case, the answer must be found in a

balance between the evils inevitable in either alternative. In this

instance it has been thought in the end better to leave unredressed the

wrongs done by dishonest officers than to subject those who try to do their

duty to the constant dread of retaliation.

Gregoire, 177 F.2d at 581.

(52) Imbler, 424 U.S. at 429 n.30 (citing Model Code of Professional Responsibility EC 7-13 (1980)). As a result of these disciplinary considerations, prosecutors purportedly stood "unique, among officials whose acts could deprive persons of constitutional rights, in [their] amenability to professional discipline by an association of [their] peers." Id. (citation omitted).

(53) Id.

(54) Id. at 430.

(55) Id. at 430-31.

(56) Id. at 431 n.33.

(57) Id. at 438, 440 (White, J., concurring, joined by Brennan, J., & Marshall, J.).

(58) Id. at 437 (citing cases dating back to only the early twentieth century).

(59) Id.

(60) Id.

(61) Id. at 436.

(62) Id. at 439.

(63) Id. at 441. In Brady v. Maryland, the Supreme Court held the prosecutor's withholding of exculpatory evidence violated the defendant's right to a fair trial. 373 U.S. 83, 86 (1963).

(64) Imbler, 424 U.S. at 444-45. Justice White indicated:

More to the point and quite apart from the relative difficulty of

pleading a violation of Brady v. Maryland . . . a rule permitting suits

based on withholding of specific facts unlike suits based on the

prosecutor's disbelief of a witness' testimony will have no detrimental

effect on the process. Risk of being sued for suppression will impel the

prosecutor to err if at all on the side of overdisclosure . . . [while the]

[r]isk of being sued for disbelieving a witness will impel the prosecutor to

err on the side of withholding questionable evidence. The majority does not

appear to respond to this point. Any suggestion that the distinction between

suits based on suppression of facts helpful to the defense and suits based on

other kinds of constitutional violations cannot be understood by district

judges who would have to apply the rule is mystifying. The distinction is

a simple one.

Id. at 446-47 n.9.

(65) Id. at 443 (emphasis in original).

(66) Id.

(67) 540 F.2d 220 (6th Cir. 1976).

(68) Hilliard v. Williams, 616 F.2d 1344, 1345-46 (6th Cir. 1975), vacated, 424 U.S. 961 (1976).

(69) Id.

(70) Imbler, 424 U.S. at 444-45 (White, J., concurring) (contending that "[w]here the reason for the rule extending absolute immunity to prosecutors disappears, it would truly be `monstrous to deny recovery'" (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949))).

(71) Newcomb v. Ingle, 944 F.2d 1534 (10th Cir. 1991), cert. denied, 502 U.S. 1044 (1992); Fields v. Soloff, 920 F.2d 1114 (2d Cir. 1990); see Powers v. Coe, 728 F.2d 97, 103-04 (2d Cir. 1984) (holding prosecutor absolutely immune for presentment of case in breach of an agreement not to prosecute); Gray v. Bell, 712 F.2d 490, 502 (D.C. Cir. 1983) (holding prosecutors absolutely immune in presenting evidence to a grand jury), cert. derived, 465 U.S. 1100 (1984).

(72) Taylor v. Kavanagh, 640 F.2d 450 (2d Cir. 1981); see McGruder v. Necaise, 733 F.2d 1146, 1148 (5th Cir. 1984) (holding prosecutor absolutely immune when offering to drop charges in return for defendant's dropping of civil suit).

(73) Buckley v. Fitzsimmons, 919 F.2d 1230, 1243-45 (7th Cir. 1990) (holding that a prosecutor, who took bootprint evidence to various experts before he could find a favorable opinion, was absolutely immune from suit), rev'd, 113 S. Ct. 2606 (1993).

(74) Betts v. Richard, 726 F.2d 79, 81 (2d Cir. 1984) (concluding that a prosecutor was immune from section 1983 liability for procuring a writ to secure plaintiff as state's main witness in a criminal trial).

(75) Ehrlich v. Giuliani, 910 F.2d 1220, 1223-24 (4th Cir. 1990) (holding that the prosecutor's "preserv[ation of] the defendant's asset for forfeiture proceedings" surpassed his investigative function and entered the realm of judicial advocacy).

(76) Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986) (holding prosecutor absolutely immune for failing to disclose exculpatory witness statement specifically requested by plaintiff during his murder trial), cert. denied, 481 U.S. 1048 (1987); accord Fullman v. Graddick, 739 F.2d 553 (11th Cir. 1984).

(77) Hampton v. Hanrahan, 600 F.2d 600, 632 (7th Cir. 1979) (analogizing the prosecutors' "`planning and execution of a raid'" to the "`activities of police officers allegedly acting under [their] direction'" end thus affording them only qualifies immunity (quoting Hampton v. City of Chicago, 484 F.2d 602, 609 (7th Cir. 1973) (alteration in original))).

(78) Day v. Morgenthau, 909 F.2d 75, 77-78 (2d Cir. 1990) (holding that "[a]rests and searches . . . `are normally police functions, and they do not become prosecutorial functions merely because a prosecutor has chosen to participate"' (quoting Robinson v. Via, 821 F.2d 913, 918 (2d Cir. 1987))).

(79) See, e.g, Buckley v. Fitzsimmons, 919 F.2d 1230 (7th Cir. 1990) (declining to find absolute immunity for prosecutor conducting a coercive interrogation), rev'd on other grounds, 113 S. Ct. 2606 (1993); Coleman v. Turpen, 697 F.2d 1341 (10th Cir. 1982) (finding that a prosecutor was only qualifiedly immune for alleged mismanagement of seized property); Price v. Moody, 677 F.2d 676 (8th Cir. 1982) (declining to find absolute immunity for order to mistreat prisoner); Kaylor v. Fields, 661 F.2d 1177 (8th Cir. 1981) (finding qualified immunity for prosecutor's press release); Henderson v. Fisher, 631 F.2d 1115 (3rd Cir. 1980) (holding that a prosecutor is not entitled to absolute immunity when he destroys evidence).

(80) Burns v. Reed, 500 U.S. 478, 481 (1991).

(81) Id. at 481-82.

(82) Id. at 482.

(83) Id. (84) Id.

(85) Id.

(86) Id. at 482 & n.1. Burns' children were taken by the state. After a four month period, the hospital concluded that Burns did not suffer from multiple personalities. Id. at 482 n.1.

(87) Id. at 482-83.

(88) Id. at 483.

(89) Id.

(90) Id.

(91) Id.

(92) Id.

(93) Id. at 483 & n.2 (citing Wolfenbarger v. Williams, 826 F.2d 930, 937 (10th Cir. 1987) (finding no absolute immunity for "legal advice given to police officers")), Marx v. Gumbinner 855 F.2d 783, 790 (11th Cir. 1988) (holding a prosecutor absolutely immune for the "rendering [of] legal advice to police officers"); Myers v. Morris, 810 F.2d 1437, 1449-51 (8th Cir.) (finding a prosecutor absolutely immune in "her role in the interviewing of children"), cert. denied, 484 U.S. 828 (1987)).

(94) Burns 500 U.S. at 485-86.

(95) Id. at 486-87 (citing Forrester v. White, 484 U.S. 219, 224 (1988)).

(96) Id. at 489-92.

(97) Id. at 489-90. This immunity was recognized as absolute for section 1983 suits in Briscoe u. LaHue. 460 U.S. 325 (1983); see infra notes 381-82 and accompanying text.

(98) Burns, 500 U.S. at 492. The Court also observed that subsequent judicial review of a prosecutor's conduct at a hearing or proceeding decreased the likelihood of abuse. Id.

(99) Id. at 493.

(100) Id. The Court reasoned:

We do not believe, however, that advising the police in the investigative

phase of a criminal case is so "`intimately associated with the judicial

phase of the criminal process,'" that it qualifies for absolute immunity.

Absent a tradition of immunity comparable to the common-law immunity from

malicious prosecution, which formed the basis for the decision in Imbler,

we have not been inclined to extend absolute immunity from liability under

[sections] 1983.

Id. (citations omitted) (emphasis added).

(101) Id. at 494 (citing Harlow v. Fitzgerald, 457 U.S. 800 (1982)).

(102) Id. at 496-97 (Scalia, J., concurring in part and dissenting in part).

(103) Id. at 497.

(104) Id. at 497-98 (citing Malley v. Briggs, 475 U.S. 335, 339-40 (1986)).

(105) Id. at 498.

(106) Id. at 501. The Court's recognition of "defamation immunity" supported the finding of absolute witness immunity in Briscoe v. LaHue. 460 U.S 325, 330-34 (1983).

(107) Burns, 500 U.S. at 500 (citing Wall v. Trumbull, 16 Mich. 228, 235-37 (1867), Barhyte v. Shepherd, 35 N.Y. 238, 241-42 (1866), Steele v. Dunham, 26 Wis. 393, 396-97 (1870)).

(108) Id. at 500.

(109) Id. (citing Billings v. Lafferty, 31 Ill. 318, 322 (1863); Reed v. Conway, 20 Mo. 22, 44-52 (1854)).

(110) Id. at 500 (citing Wight v. Rindskopf, 43 Wis. 344, 354 (1877)).

(111) Id. at 504.

(112) 113 S. Ct. 2606 (1993)

(113) Id. at 2608.

(114) Id. at 2610. The expert was "well known for her willingness to fabricate unreliable expert testimony." Id.

(115) Id.

(116) Id. All of this occurred just before an election for the district attorney's office. Id.

(117) Id. at 2610-11.

(118) Id. at 2611.

(119) Id.

(120) Id.

(121) Id.

(122) Buckley v. Fitzsimmons, 919 F.2d 1230, 1245 (7th Cir. 1990).

(123) Id. at 1240-42. The dissent determined that while judicial procedures may reduce the impact of some prosecutorial impropriety (e.g., voir dire might prevent a prosecutor from tainting a jury by bad publicity), these procedures only mitigate damages, and do not afford a basis for immunity. Id at 1246 (Fairchild, J., dissenting).

(124) Buckley, 113 S. Ct. at 2615.

(125) Id. at 2613 (quoting Malley v. Briggs, 475 U.S. 335, 342 (1986)).

(126) Id. at 2615.

(127) Id. The Court also let the lower court's ruling that Fitzsimmons' conduct before the grand jury was absolutely immune stand. Buckley did not include this issue in his petition for certiorari. Id. at 2612 n.3.

(128) Id. at 2616.

(129) Id.

(130) Id.

(131) Id; accord Day v. Morgenthau, 909 F.2d 75, 77-78 (2d Cir. 1990).

(132) Buckley, 113 S. Ct. at 2610-11 ("It was well after the alleged fabrication of false evidence concerning the bootprint that a special grand jury was impaneled. And when it finally was convened, its immediate purpose was to conduct a more thorough investigation of the crime--not to return an indictment against [Buckley].").

(133) Id. at 2616 n.5.

(134) Id.

(135) Id. at 2618.

(136) Id. (citing Tower v. Glover, 467 U.S. 914, 922-23 (1984)).

(137) Id.

(138) Id.

(139) Id. at 2619 (Scalia, J., concurring).

(140) Burns v. Reed, 500 U.S. 478, 500-01 (Scalia, J., concurring in part and dissenting in part); see supra notes 102-10 and accompanying text. The Petitioner in Buckley seemed to make a similar argument, and then, apparently apprehensive about asking that Imbler be overruled, only asked that it be limited "to the thrust of the conduct challenged there--the presentation of evidence in court." Petitioner's Brief at 45, Buckley v. Fitzeimmons, 113 S. Ct. 2606 (1993) (No. 91-7849).

(141) Buckley, 113 S. Ct. at 2620 (Scalia, J., concurring).

(142) Id.

(143) Id. Scalia did not explain why Buckley's arrest and detention secured by fabricated evidence and resulting in three years of incarceration would not suffice as conduct that "otherwise harms" someone. Id. (144) Id. at 2621 (Kennedy, J., concurring in part and dissenting in part).

(145) Id. at 2623. Kennedy contended:

If the Court means to withhold absolute immunity whenever it is alleged

that the injurious actions of a prosecutor occurred before he had probable

cause . . . then no longer is a claim for malicious prosecution subject to

ready dismissal on absolute immunity grounds, at least where the claimant is

clever enough to include some actions taken by the prosecutor prior to the

initiation of prosecution. I find it rather strange that the classic case for

the invocation of absolute immunity falls on the unprotected side of the

Court's new dividing line.

(146) Id.

(147) Id.

(148) Id. at 2624. Kennedy declared:

Two actors can take part in similar conduct and similar inquiries while

doing so for different reasons and to advance different functions. It may

be that a prosecutor and a police officer are examining the same evidence

at the same time, but the prosecutor is examining the evidence to determine

whether it will be persuasive at trial and of assistance to the trier of

fact, while the police officer examines the evidence to decide whether it

provides a basis for arresting a suspect. The conduct is the same but the

functions distinct.


(149) See, e.g, Brian P. Barrow, Buckley v. Fitzsimmons: Tradition Pays a Price for the Reduction of Prosecutorial Misconduct, 16 Whittier L. Rev. 301 (1995); James P. Kenner, Prosecutorial Immunity: Removal of the Shield Destroys the Effectiveness of the Sword, 33 Washburn L.J. 402, 426-27 (1994); Deborah S. Platz, Buckley v. Fitzsimmons: The Beginning of the End for Absolute Prosecutorial Immunity, 18 Nova L. Rev. 1919, 1937 (1994).

(150) Reid v. New Hampshire, 56 F.3d 332, 337 (1st Cir. 1995). "Imbler thus implicitly acknowledged that prosecutors retain discretion to determine what evidence is to be disclosed under Brady and that absolute immunity attaches to their exercise of discretion. . . . Nor was absolute immunity forfeited because the prosecutors continued to withhold the exculpatory evidence." Id. at 337-38 (emphasis in original).

(151) William O. Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949).

(152) Cf. Monell v. Department of Social Servs., 436 U.S. 658, 709 n.6 (1978) ("The doctrine of stare decisis advances two important values of a rational system of law: (i) the certainty of legal principles and (ii) the wisdom of the conservative vision that existing rules should be presumed rational and not subject to modification `at any time a new thought seems appealing.'" (quotation omitted)).

(153) Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., dissenting); see Helvering v. Hallock, 309 U.S. 106, 119 (1940) (stating that "stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience").

(154) Hubbard v. United States, 115 S. Ct. 1754, 1763 (1995); Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989).

(155) 365 U.S. 167 (1961), overruled by Monell v. Department of Social Servs., 436 U.S. 658 (1978).

(156) Id. at 192 (Harlan, J., concurring); accord Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 257-58 (1970) (Black, J. dissenting).

(157) Boys Markets, 398 U.S. at 241 (citation omitted); see Hubbard, 115 S. Ct. at 1768 (Rehnquist, C.J., dissenting) ("We have often noted the danger in relying on congressional inaction in construing a statute" (citing Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 306 (1988))).

(158) Patterson, 491 U.S. at 175 n.1 (quoting Johnson v. Transportation Agency, 480 U.S. 616, 671-72 (1987) (Scalia, J., dissenting)).

(159) Monell, 436 U.S. at 695 (citing Girouard v. United States, 328 U.S. 61, 70 (1946)).

(160) Hubbard v. United States, 115 S. Ct. 1754, 1765 (1995) (Scalia, J., concurring) ("Who ignores [stare decisis] must give reasons, and reasons that go beyond mere demonstration that the overruled opinion was wrong (otherwise the doctrine would be no doctrine at all)." (parenthetical in original)).

(161) Monell, 436 U.S. at 700.

(162) See, e.g., Lodge 76, Int'l Ass'n of Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 151-54 (1976), overruling United Auto Workers v. Wisconsin Employment Relations Bd., 336 U.S. 245 (1949) (holding that the earlier UAW decision that states may regulate partial strike activities frustrated the federal labor regulatory scheme).

(163) Black & White Taxicab v. Brown & Yellow Taxicab, 276 U.S. 518, 530 (1928) (permitting taxicab company to reincorporate out of state and to use a federal court with its own "general federal common law" to exact a decision it would not have obtained had its case been decided in the state court system); see Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 247-48 (1970) (observing that the rule providing that anti-strike agreements are not enforceable in federal court discouraged collective-bargaining by encouraging unions to remove cases to federal court to escape state-court injunctions).

(164) Wainwright v. Sykes, 433 U.S. 72, 77 (1977) (overruling, for all intents and purposes, Fay v. Noia, which established the bad rule. 372 U.S. 391 (1963)).

(165) Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 58 (1977), overruling United States v. Arnold, Schwinn & Co., 388 U.S. 365 (1967).

(166) Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989), overruling Wilko v. Swan, 346 U.S. 427 (1953).

(167) 115 S. Ct. 1754 (1995)

(168) 348 U.S. 503 (1955).

(169) Id. at 502. In Bramblett, the Court interpreted Title 18 of the United States Code section 1001, which established penalties for making or using false or fraudulent statements within the jurisdiction of any department or agency of the United States. Id.; 18 U.S.C. [sections] 1001 (1994). The Court held the statute "clearly covers the presentation of false claims against any component of the Government to any officer of the Government." Bramblett, 348 U.S. at 505. However, the wording of the statute indicated that words like "department" and "agency" were to be given their natural meaning. Id. at 508.

(170) See, e.g., United States v. Masterpol, 940 F.2d 760, 766 (2d Cir. 1991) (stating that "[n]o court . . . has ever sustained a [Title 18 United States Code] section 1001 conviction for false statements made . . . to a court acting in its judicial capacity"); United States v. Mayer, 775 F.2d 1387, 1390 (9th Cir. 1985) (holding that section 1001 should only be applied in a judicial proceeding relating to administrative or housekeeping functions as opposed to adjudicative functions); Morgan v. United States, 309 F.2d 234, 237 (D.C. Cir. 1962) (summarizing the problems with Bramblett and stating: "Does a defendant `cover up . . . a material fact' when he pleads not guilty? Does an attorney `cover up' when he moves to exclude hearsay testimony he knows to be true, or when he makes a summation on behalf of a client he knows to be guilty?"), cert. denied, 373 U.S. 917 (1963).

(171) Hubbard, 115 S. Ct. at 1761. The Court indicated: Putting Bramblett's historical misapprehension to one side, however, we believe the Bramblett Court committed a far more basic error in its underlying approach to statutory construction. Courts should not rely on inconclusive statutory history as a basis for refusing to give effect to the plain language of an Act of Congress. Id.

(172) Id. at 1764. Given that other statutes punish misrepresentations to courts, the Court also cited an absence of significant reliance interests in rejecting Bramblett. Id.

(173) 382 U.S. 111 (1965).

(174) 369 U.S. 153 (1962).

(175) Swift, 382 U.S. at 115-16.

(176) Id. at 124-25. The Court noticed that under Kesler, in order to ascertain the correct forum for a claim, a trial judge would have to determine the claim's merits to decide if such adjudication caused her to "engage[ ] in so much more construction" that he or she, and not a panel, had jurisdiction. Id. at 125 (citing Swift & Co. v. Wickham, 230 F. Supp. 398, 410 (S.D.N.Y. 1964)).

(177) 491 U.S. 164 (1989).

(178) 505 U.S. 833 (1992).

(179) 427 U.S. 160 (1976).

(180) Patterson, 491 U.S. at 171.

(181) Id. at 173 (citing Rodriguez de Quijas v. Shearson/Am. Express, 490 U.S. 477 (1989)).

(182) Id. (citing Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36 (1977)).

(183) Id. (citing Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235 (1970)).

(184) Id. at 174 (quotation omitted). In fact, Runyon exemplified the country's commitment against discrimination reflected in contemporary Congressional acts and court decisions. Id.

(185) 505 U.S. 833, 853 (1992)

(186) 410 U.S. 113 (1973)

(187) Casey, 505 U.S. at 854.

(188) Id. (citing Swift & Co. v. Wickham, 382 U.S. 111 (1965)).

(189) Id. at 855 (citing Patterson v. McLean Credit Union, 491 U.S. 164 (1989)).

(190) Id. (citing Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1992)).

(191) Id. at 854 (citing United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924) (holding reliance interests in land distributed under the Court's interpretation of Mexican cession treaty would make a reversal unfair and costly)).

(192) Id. at 869

(193) Id. at 855. Because Roe simply prohibits states from banning all abortions, it is not too difficult to determine laws that run afoul of such a rule.

(194) Id. at 856. (195) Id. The Court observed through the 20 years of subsequent abortion cases, the main holding of Roe was always expressly affirmed. Id.

(196) Id. at 857 (citing Moore v. East Cleveland, 431 U.S. 494 (1977) (striking down ordinance restricting occupancy in a zoned area to nuclear family members only)).

(197) Id. (citing Cruzan v. Department of Health, 497 U.S. 261 (1990) (recognizing in broad terms a right to bodily integrity and a right to die)).

(198) Id. at 860.

(199) Id.

(200) Imbler v. Pachtman, 424 U.S. 409, 431 n.33 (1976) ("Drawing a proper line between these functions [prosecutive, administrative, or investigative! may present difficult questions but this case does not require us to anticipate them.").

(201) Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2615 (1993).

(202) Cf. id. at 2615-17; see Hill v. City of New York, 45 F.3d 653, 662 (2d Cir. 1995).

(203) Swift & Co. v. Wickham, 382 U.S. 111, 124-25 (1965); see supra notes 173-76 and accompanying text.

(204) See, e.g., Lemmons v. Morris & Morris, 39 F.3d 264, 266 (10th Cir. 1994) (finding that when a prosecutor blocked inmate testimony he acted in an administrative function and was not entitled to absolute immunity); Giuffre v. Bissell, 31 F.3d 1241, 1254 (3d Cir. 1994) (holding that a prosecutor acts in an administrative role while advising officers who benefitted from property forfeiture when no charges are pending and no judicial oversight is available).

(205) See, e.g., Rodrigues v. City of New York, 602 N.Y.S.2d 337, 341 (App. Div. 1993) (holding that attempts at extortion by entrapment, the issuance of numerous grand jury subpoenas when one was not convened, and press-leaks to media of false information to compel plaintiff to cooperate fell outside prosecutor's authority and is not protected by absolute immunity).

(206) See, e.g., Eisenberg v. District Attorney, 847 F. Supp. 1029, 1037 (E.D.N.Y. 1994) (finding such a policy is prosecutorial and not administrative).

(207) See, e.g., Field v. Kitron, 856 F. Supp. 88, 95 (D. Conn. 1994) (holding that attorney general's communications about consumer fraud case was an attempt to reach potential witnesses and therefore an act preparatory to a judicial proceeding and protected by absolute immunity).

(208) See, e.g., Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir. 1993) (holding prosecutor's decision not to tell murder-victim's family he was reducing suspect's charges was within his function as advocate), cert. dewed, 114 S. Ct. 2742 (1994).

(209) Moore v. Valder, 65 F.3d 189, 194 (6th Cir. 1995) (holding that coercing or intimidating witness into changing testimony was not advocacy and, therefore, not absolutely immunized conduct).

(210) Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2624 (1993) (Kennedy, J., concurring in part and dissenting in part). Justice Kennedy indicated:

the primary question, one which I have confidence the federal courts are

able to answer with some accuracy, is whether a prosecutor was acting as

an advocate, an investigator, or an administrator when he took the actions

called into question in a subsequent [sections] 1983 action. As long as

federal courts center their attention on this question, a concern that

prosecutors can disguise their investigative and administrative actions

as early forms of advocacy seems to be unfounded.

Id. Compare id. at 2625 ("In recognizing a distinction between advocacy and investigation, the functional approach requires the drawing of difficult and subtle distinctions, and I understand the necessity for a workable standard in this area.").

(211) Swift & Co. v. Wickham, 382 U.S. 111, 126 (1965) (discussing whether the court should correct the Kesler problem by permitting all suits to enjoin enforcement of a state statute to go before a three-judge panel, or precluding the "supremacy clause" as a sole basis for invoking panel review).

(212) Buckley, 113 S. Ct. at 2617.

(213) Id. at 2623 (Kennedy, J., concurring in part and dissenting in part).

(214) See Model Code of Professional Responsibility EC 7-13 (1980). The rules of Professional Responsibility urge prosecutors to be both investigator and advocate at all times. Id. The Model Code indicates that "a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecutor's case or aid the accused." Id.

(215) Buckley, 113 S. Ct. at 2623 (Kennedy, J., concurring in part and dissenting in part).

(216) 304 U.S. 64 (1938), overruling Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842).

(217) Id.

(218) Imbler v. Pachtman, 424 U.S. 409, 432-33 (1976) (White, J., concurring).

(219) See, e.g., Model Rules of Professional Conduct Rule 3.8 (1983).

(220) Sanders v. English, 950 F.2d 1152, 1162 (5th Cir. 1992) (holding a police lieutenant liable for arrestee's detention for knowingly and willfully withholding from a prosecutor overwhelming exculpatory evidence that would have led to dismissal of the charges); Walker v. Tyler County Comm'n, 886 F.Supp. 540 (N.D. W. Va. 1995) (holding that medical examiner, who withheld exculpatory materials from defense despite state laws requiring disclosure of such evidence, could not claim either absolute or qualified immunity)

(221) See Imbler, 424 U.S. at 446 n.9 (White, J., concurring) (citing Brady v. Maryland, 373 U.S. 83 (1963)).

(222) Id. at 443.

(223) 978 F.2d 362 (7th Cir. 1992), cert. denied, 507 U.S. 1005 (1993).

(224) Id. at 363.

(225) Id. at 364.

(226) Id. at 367.

(227) Id. at 369.

(228) 34 F.3d 257 (4th Cir. 1994), cert. denied, 115 S. Ct. 1101 (1995).

(229) Id. at 260.

(230) Id.

(231) Id. at 259. There was a dispute as to when Burch learned of complainant's previous statements. Id. at 260. He claimed he only learned of the evidence after the conviction. Id.

(232) Id. at 259-60.

(223) Id. at 260.

(234) Id. at 262.

(235) Id.

(236) Id. at 263. Carter's luck did not improve in his suit against Beamer. Though the jury found the investigator liable, it awarded Carter only $1.00 in damages. Id. at 259. The court of appeals surmised that the award was consistent with a finding that Burch was ultimately responsible for withholding evidence, and the jury may have therefore been reluctant to punish Beamer. Id. at 264.

(237) The Houston case took place in Cook County, Illinois, where Chicago is located. The State Attorney's Office has 850 attorneys, and distinct trial and appellate divisions. Telephone Interview with [name withheld], (June 15, 1995). Carter was tried by the States' Attorneys Office in Loudon County, Virginia, where six attorneys handle all phases of a criminal proceeding. Telephone Interview with [name withheld] (June 15, 1995).

(238) Malley v. Briggs, 475 U.S. 335, 343 (1986).

(289) See supra notes 200-11 and accompanying text.

(240) 45 F.3d 653 (2d Cir. 1995). The plaintiff's version of the facts were treated as true because of the procedural posture of the case. Id at 657.

(241) Id. at 657. After hearing her son scream in pain from the bathroom, Ms. Hill found wood particles in her son's feces. Id. (242) Id.

(243) Id.

(244) Id. Ms. Hill's second son was living with her at the time. Id. The younger child showed no signs of abuse and was never examined by the assistant district attorney. Id.

(245) Id.

(246) Id. at 65; 7-58.

(247) Id. at 658.

(248) Id. The prosecutor's recorded statement explained that he had stopped the interview because the boy had grown "somewhat unruly and somewhat uncooperative" due to his age and the lateness of the day. Id. at 658 n.1.

(249) Id. at 658.

(250) Id.

(251) Id.

(252) Id.

(253) Id.

(254) Id.

(255) Id.

(256) Id. at 659.

(257) Id. Ms. Hill's suits against others involved in the taping were ultimately dismissed. Id. at 659, 664.

(258) Id. at 661. The Court did not discuss Ms. Hill's claims against New York City for failing to adequately train the prosecutor. Id.

(259) Id. (citing Robison v. Via, 821 F.2d 913, 918-20 (2d Cir. 1987)).

(260) Id. (citing Burns v. Reed, 500 U.S. 478, 493 (1991)).

(261) Id. (citing Imbler v. Pachtman, 424 U.S. 409, 431 (1976)).

(262) Id. at 662.

(263) Id. at 663.

(264) Id. The Second Circuit stated:

It is impossible, as the district court observed, to determine from the

pleadings alone what function Adago was engaged in when he and the other

defendants videotaped the interview of Joseph Hill. Quite plainly, when it

may not be gleaned from the complaint whether the conduct objected to was

performed by the prosecutor in an advocacy or an investigatory role, the

availability of absolute immunity from claims based on such conduct cannot

be decided as a matter of law on a motion to dismiss.

Id. (citation omitted).

(265) Id. at 664. A Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim for which relief can be granted is generally not considered an appealable final order. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

(266) Imbler v. Pachtman, 424 U.S. 409, 425 (1976).

(267) Cf. id. at 425.

(268) Id. at 430-31.

(269) Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2616 (1993).

(270) Id. at 2615; Imbler, 424 U.S. at 431 n.33.

(271) Buckley, 113 S. Ct. at 2624 (Kennedy, J., concurring in part and dissenting in part); see supra note 148 and accompanying text.

(272) Jeffery J. McKenna, Prosecutorial Immunity: Imbler, Burns and Now Buckley v. Fitzsimmons -- The Supreme Court's Attempt to Provide Guidance in a Difficult Area, 1994 B.Y.U. L. Rev. 663, 684-90, 695 (finding the Buckley standard "rational and functional" and concluding that it provides a greater balancing of the needs of both injured citizens and prosecutors).

(273) Buckley, 113 S. Ct. at 2621 (Kennedy, J., concurring in part and dissenting in part); see supra notes 212-17 and accompanying text.

(274) 34 F.3d 257 (4th Cir. 1994); see supra notes 228-36 and accompanying text.

(275) 978 F.2d 362 (7th Cir. 1992); see supra notes 223-27 and accompanying text.

(276) Planned Parenthood v. Casey, 505 U.S. 833, 855 (1992) ("Although Roe has engendered opposition, it has in no sense proven `unworkable,' .. . representing as it does a simple limitation beyond which a state law is unenforceable." (citation omitted)).

(277) Imbler v. Pachtman, 424 U.S. 409, 424 (1976).

(278) See W. Page Keeton et al., Prosser & Keeton on the Law of Torts [sections] 119, at 871 (5th ed. 1984); see also Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2623 (1993) (Kennedy, J., concurring in part and dissenting in part) (observing that "the central component of a malicious prosecution claim is that the prosecutor in question acted maliciously and without probable cause" (citing Wyatt v. Cole, 504 U.S. 158, 172 (1992)).

(279) Buckley, 113 S. Ct. at 2616.

(280) Buckley, 113 S. Ct. at 2623 (Kennedy, J., concurring in part and dissenting in part); Cf. Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992) (observing that Roe's central holding had been expressly affirmed in numerous subsequent abortion cases).

(281) Tenney v. Brandhove, 341 U.S. 367, 376 (1951).

(282) Imbler, 424 U.S. at 418 (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)).

(283) See Griffith v. Slinkard, 44 N.E. 1001 (Inc. 1896).

(284) Imbler, 424 U.S. at 424; see Gregoire v. Biddle, 177 F.2d 579, 580 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950); Cooper v. O'Connor, 99 F.2d 135, 140-41 (D.C. Cir.), cert. denied, 305 U.S. 643 (1938); Anderson v. Rohrer, 3 F. Supp. 367, 367-68 (S.D. Fla. 1933); Pearson v. Reed, 44 P.2d 592, 594-96 (Cal. Dist. Ct. App. 1935); Anderson v. Manley, 43 P.2d 39, 39-40 (Wash. 1935); Restatement of Torts [sections] 656 (1938). Absolute immunity did not become the unanimous rule. See, e.g., Leong Yau v. Carden, 23 Haw. 362, 369 (1916) (immunity for malicious prosecution not available if prosecutors acted with malice and without probable cause); Watts v. Gerking, 228 P. 135, 140-41 (Or. 1924) (holding prosecutor immune for malicious prosecution, but not for subornation of perjury).

(285) Tenney, 341 U.S. at 376.

(286) Cf. Burns v. Reed, 500 U.S. 478, 505 (1991) (Scalia, J., concurring in part and dissenting in part) (recognizing that the absolute immunity extended to prosecutors in Imbler "was not even a logical extrapolation from then-established immunities"). The respondents in Buckley tried to take Justice Scalia to task on this point by unearthing contemporary treatise discussions of the type of immunity that ought to be available for quasijudicial acts. Respondents' Brief at 41-44, Buckley v. Fitzsimmons, 113 S. Ct. 2606 (1993) (No. 91-7849). However, the best face respondent could put on these dialogues was that "[c]learly, there existed divergent views before 1871 on whether quasijudicial officers had absolute or qualified immunity from personal liability in civil actions stemming from their official duties." Id. at 44. But when one considers the rationale of Tenney, this concession (by biased parties who scoured nineteenth-century case law) irrefutably proves Justice Scalia's argument: absolute immunity for quasijudicial actors was not the norm in 1871, instead it was actually controversial. Thus, it is illogical to presume that despite this evolving debate Congress assumed or even imagined absolute immunity would be the rule for prosecutors when it passed section 1983.

(287) Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2613 (1993) (stating that "we have applied a `functional approach' which looks to `the nature of the function performed, not the identity of the actor who performed it'" (quotation omitted)).

(288) See Tower v. Glover, 467 U.S. 914, 920 (1984); see also infra notes 298-304 and accompanying text.

(289) See, e.g., Forrester v. White, 484 U.S. 219, 229-30 (1988) (holding that in employment matters, the historic justification for absolute judicial immunity was not present, and immunizing this misconduct ran afoul of the purposes of section 1983).

(290) 438 U.S. 478, 508 (1978). (291) Id. at 511-13.

(292) 435 U.S. 349 (1978).

(293) Id. at 362.

(294) Id. at 355-56.

(295) Id. at 363.

(296) 457 U.S. 731 (1982).

(297) Id. at 744-50.

(298) Harlow v. Fitzgerald, 457 U.S. 800, 809 (1982). The Court noted that those unelected officials wielded greater power with little formal restraints or checks, which increased the need for the section 1983 remedy. Id. (citing Butz v. Economou, 438 U.S. 478, 506 (1978)).

(299) 467 U.S. 914 (1984).

(300) Id. at 916.

(301) Id. at 922.

(302) Id. at 920 (citing Pulliam v. Allen, 466 U.S. 522, 529 (1984); Imbler v. Pachtman, 424 U.S. 409, 421 (1976)).

(303) Id.

(304) Id. at 921-22 (citing Baker v. Humphrey, 101 U.S. 494 (1879); Hoopes v. Burnett, 26 Miss. 428 (1853)). On the paucity of opinions, the Court noted that "few state appellate courts have addressed the question of public defender immunity." Id. at 922. This undermined any claim that absolute immunity for public defenders was "well-settled" at common law.

(305) Id. at 922-23 (emphasis added).

(306) 475 U.S. 335 (1986).

(307) Id. at 340-41. 308 Id. at 342. Ironically, the Court invoked Imbler as exemplary of its approach:

We reemphasize that our role is to interpret the intent of Congress in

enacting [sections] 1983, not to make a freewheeling policy choice, and that

we are guided in interpreting Congress' intent by the common-law tradition.

In Imbler,... we concluded that at common law `[t]he general rule was, and

is, that a prosecutor is absolutely immune from suit for malicious

prosecution.' ... We do not find a comparable tradition of absolute immunity

for one whose complaint causes a warrant to issue.... While this observation

may seem unresponsive to petitioner's policy argument, it is, we believe, an

important guide to interpreting [sections] 1983. Since the statute on its

face does not provide for any immunities, we would be going far to read

into it an absolute immunity for conduct which was only accorded qualified

immunity in 1871.

Id. (citations omitted) (emphasis in original). (309) Id.

(310) See, e.g., Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2618 (1993) ("Fitzsimmons argues... that policy considerations support extending absolute immunity to press statements ... When as here, the prosecutorial function is not within the advocate's role and there is no historical tradition of immunity on which we can draw, our inquiry is at an end."); Antoine v. Byers & Anderson, Inc., 113 S. Ct. 2167, 2170 (1993) ("Faced with the absence of a common-law tradition involving court reporters themselves, respondents urge us to treat as their historical counterparts common-law judges who made handwritten notes during trials. We find the analogy unpersuasive."); Burns v. Reed, 500 U.S. 478, 498 (1991) (Scalia, J., concurring in part and dissenting in part) ("Where we have found that a tradition of absolute immunity did not exist as of 1871, we have refused to grant such immunity under [sections] 1983.... [B]ecause the presumed legislative intent not to eliminate traditional immunities is our only justification for limiting the categorical language of the statute." (emphasis added)).

(311) Sheldon H. Nahmod, 2 Civil Rights and Civil Liberties Litigation: the Law of Section 1983 [sections] 7.12, at 30 (3d ed. Supp. 1995) (emphasis in original).

(312) Burns, 500 U.S. at 500.

(313) Mitchell v. Forsyth, 472 U.S. 511, 521 (1985). The Court considers quasi-judicial acts those that are both necessary to society but usually leave "a winner [and] at least one loser." Id. This increases the likelihood of a "sour-grapes" lawsuit. The Court in Mitchell found that an attorney general's decision to authorize illegal wiretaps was not a "quasi-judicial act," but dismissed the suit on basis of qualified immunity. Id. at 520, 524.

(314) 474 U.S. 193 (1985)

(315) Id. at 202 (citing Butz v. Economou, 438 U.S. 478, 512 (1978)).

(316) Id.

(317) Id. at 203.

(318) See infra notes 394-438 and accompanying text.

(319) Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2610-11 (1993) ("Although no additional evidence was obtained in the interim, the indictment was returned in March, when Fitzsimmons held the defamatory press conference so shortly before the primary election.").

(320) Cf. Burns v. Reed, 500 U.S. 478, 496 (1991) (noting the availability of appellate review, deemed in Imbler as a significant check on constitutional abuses, will not restrain out-of-court prosecutorial activities where a suspect is never prosecuted).

(321) Hubbard v. United States, 115 S. Ct. 1754, 1764 (1995) (citations omitted), overruling United States v. Bramblett, 348 U.S. 503 (1955).

(322) Id.

(323) Id. (holding the widespread adoption of the "judicial function exception" to the False Statement Act constituted an "intervening development of law" worthy of displacing the Court's own decision to include misrepresentations to judicial and legislative bodies under the act).

(324) Burns, 500 U.S. at 505 (Scalia, J., concurring in part and dissenting in part) ("While I would not, for the reasons stated above, employ that methodology here [post-1871 common law], the holding of Imbler remains on the books, and for reasons of stare decisis I would not abandon it.").

(325) Planned Parenthood v. Casey, 505 U.S. 833, 854-55 (1992).

(326) Imbler v. Pachtman, 424 U.S. 409, 424-28 & nn. 23-25 (1976).

(327) Id. at 419 n.14 (quoting Scheuer v. Rhodes, 416 U.S. 232, 247-48 (1974)).

(328) Id. at 419 n.13 (citing Scheuer, 416 U.S. at 238-39. In Scheuer, the Court found that a governor and high-state officials were only afforded qualified immunity for putting down a campus disturbance). Scheuer, 416 U.S. 232, 250 (1974).

(329) 457 U.S. 800 (1982).

(330) Id. at 815-18.

(331) Id. at 818 (citations omitted).

(332) Id.

(333) 472 U.S. 511 (1985).

(334) Id. at 527; see 28 U.S.C. [sections] 1291 (1994). The Court has recently explained that only decisions related to whether a rule was clearly established are immediately appealable, and not denials of qualified immunity premised upon a court's finding of a genuine issue of material fact. Johnson v. Jones, 115 S. Ct. 2151, 2156-58 (1995).

(335) Mitchell, 472 U.S. at 526 ("[The Harlow Court refashioned the qualified immunity doctrine in such a way as to `permit the resolution of many insubstantial claims on summary judgment' and to avoid `subject[ing] government officials either to the costs of trial or to the burdens of broad-reaching discovery.'" (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982))).

(336) Elder v. Holloway, 114 S. Ct. 1019, 1023 (1994).

(337) 483 U.S. 635 (1987). (338) Id. at 544-45; cf. id. at 647-48 (Stevens, J., dissenting); see Nahmod, supra note 311, [sections] 8.06, at 123.

(339) See Fed. R. Civ. P. 56(c).

(340) See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (reinstating summary judgment against plaintiff who failed to make a sufficient showing of an essential element of her case for which she bore the burden of proof, namely that her husband had come into contact with defendant's asbestos products).

(341) Cf. Jordan v. Jackson, 15 F.3d 333, 340 (4th Cir. 1994).

(342) Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J., concurring).

(343) Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163 (1993).

(344) See, e.g., Kimberlin v. Quinlan, 6 F.3d 789, 794 n.8 (D.C. Cir. 1993) (noting that "`heightened pleading' is a misnomer because [it only] requires a greater evidentiary showing rather than enhanced pleading"), vacated on other grounds sub nom., Johnson v. Jones, 115 S. Ct. 2151 (1995); see also Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995) (holding pleadings must be "tailored to an answer pleading the defense of qualified immunity").

(345) See, e.g, Cleavinger v. Saxner, 474 U.S. 193, 207-08 (1985).

We likewise are not impressed with the argument that anything less than

absolute immunity will result in a flood of litigation and in substantial

procedural burdens and expense for [prisoner disciplinary hearing]

committee members. This argument, too, has been made before. But this

Court's pronouncements in Narlow v. Fitzgerald place the argument in

appropriate perspective, for many cases may be disposed of without the

necessity of pretrial discovery proceedings . . . [a]nd any expense of

litigation largely is alleviated by the fact that a Government official

who finds himself as a defendant in litigation of this kind is often

represented, as in this case, by Government counsel.

Id. (citations omitted).

(346) Burns v. Reed, 500 U.S. 478, 494 n.8 (1991) (emphasis added) (citing Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976)).

(347) Hill v. City of New York, 45 F.3d 653 (2d Cir. 1995).

(348) Malley v. Briggs, 475 U.S. 335, 341 (1986).

(349) Imbler v. Pachtman, 424 U.S. 409, 424-25 (1976).

(350) 114 S. Ct. 2364 (1994).

(351) Id. at 2372 (citation omitted).

(352) The Court gave the following as an example:

A state defendant is convicted of and sentenced for the crime of

resisting arrest, defined as intentionally preventing a peace officer from

effecting a lawful arrest . . . He then brings a [sections] 1983 action

against the arresting officer, seeking damages for violation of his Fourth

Amendment right to be free from unreasonable seizures. In order to prevail

in this [sections] 1983 action, he would have to negate an element of the

offense of which he has been convicted. Regardless of the state law

concerning res judicata . . . the [sections] 1983 action will not lie.

Id. at 2372 n.6.

(353) Stone v. Powell, 428 U.S. 465 (1976).

(354) 372 U.S. 391 (1963)

(355) Wainwright v. Sykes, 433 U.S. 72, 77 (1977).

(356) Bator et al., supra note 18, at 1476. The Court has also acted to reduce successive petitions of new claims. McCleskey v. Zant, 499 U.S. 467 (1991) (holding failure to raise claim in earlier habeas corpus petition would be excused only upon showing cause and prejudice or to prevent a "fundamental miscarriage of justice").

(357) Richard Faust et al., The Great Writ in Action: Empirical Light on the Federal Habeas Corpus Debate, 18 N.Y.U. Rev. L. & Soc. Change 637, 680 (1990-91) (finding only about a three to four percent success rate).

(358) See FED. R. Civ. P. 11 advisory committee's note (stating that "[t]he new language stresses the need for some prefiling inquiry into both the facts and the law to satisfy the affirmative duty imposed by the rule. The standard is one of reasonableness under the circumstances. . . . [It] is more stringent that the original good-faith formula and thus it is expected that a greater range of circumstances will trigger its violation").

(359) Id. at [sections] 11(c)(2)(B). Subdivision (c)(2)(B) requires imposition of sanctions occur before a voluntary dismissal. These changes do not disable Rule 11 sanctions from deterring frivolous suits, but instead should prevent frivolous and vexatious litigation of sanctions and counter-sanctions.

(360) Imbler v. Pachtman, 424 U.S. 409, 425 (1976).

(361) Id. at 425-26.

(362) See Alexander v. Alexander, 706 F.2d 751 (6th Cir. 1983).

(363) Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

(364) 365 U.S. 167 (1961).

(365) Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978).

(366) Owen v. City of Independence, 445 U.S. 622, 638 (1980).

(367) 489 U.S. 378 (1989).

(368) Id. at 390.

(369) See Gentile v. County of Suffolk, 926 F.2d 142 (2d Cir. 1991) (holding that a county district attorney's long practice of ignoring evidence of police misconduct and sanctioning and covering up wrongdoing could make the county liable); Claude H. v. County of Oneida, 626 N.Y.S.2d 933 (App. Div. 1995) (holding that district attorney's command that plaintiff be unlawfully arrested could support action against county for false imprisonment).

(370) 974 F.2d 293 (2d Cir. 1992), cert. denied, 507 U.S. 961 (1993).

(371) Id. at 294 ("Plaintiff James Walker spent nineteen years in prison for a crime that it now appears he did not commit.").

(372) Id. at 295.

(373) Id.

(374) Id. Not only did Zsuffa not disclose this identification evidence, but at a preliminary hearing he denied under oath that a lineup ever took place. Id.

(375) Id. at 294.

(376) Id. at 299-300. The court found (1) the district attorney knew ADA's would acquire Brady material; (2) training would have helped ADA's in dealing with such evidence; and (3) failing to turn over Brady material will normally lead to a constitutional violation. Id .; accord City of Savannah v. Wilson, 447 S.E.2d 124, 126 (Ga. Ct. App. 1994) (upholding trial court's finding that inadequate district attorney's guidelines as to Brady amounted to "follow the law," and were therefore inadequate).

(377) Cf. Patterson v. McLean Credit Union, 491 U.S. 164, 174 (1989) (finding that Runyon was "entirely consistent" with societal notions of the elimination of racial discrimination).

(378) See 42 U.S.C. [sections] 1988 (1994).

(379) Imbler v. Pachtman, 424 U.S. 409, 426 (1976).

(380) Id. at 415-16.

(381) Briscoe v. LaHue, 460 U.S. 325, 345-46 (1983).

(382) John Townshend, Seander and Libel 357-67 (2d ed. 1872).

(383) Id. at 357-58.

(384) The fact that witness immunity covered the most likely source of suits against prosecutors -- claims they suborned perjury -- was suggested by Justice White in Imbler, and noted by Justice Scalia in Burns. Imbler, 424 U.S. at 441 (White, J., concurring); Burns v. Reed, 500 U.S. 478, 501 (1991) (Scalia, J., concurring in part and dissenting in part); see supra notes 55-64 and accompanying text.

(385) Imbler, 424 U.S. at 427.

(386) Id. (stating that the focus of reviewing judges "should not be blurred by even the subconscious knowledge that a post-trial decision in favor of the accused might result in the prosecutor's being called upon to respond in damages for his error or mistaken judgment" (emphasis added)). Neither error nor mistakes in judgment resemble the conduct now remaining outside qualified immunity's reach, specifically the "plainly incompetent" or the knowing violation. Malley v. Briggs, 475 U.S. 335, 341 (1986). (387) Imbler, 424 U.S. at 428 n.27.

(388) Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 84-85 (1984).

(389) See, e.g., Hubbert v. City of Moore, 923 F.2d 769, 772-73 (10th Cir. 1991) (holding that a probable cause determination at preliminary hearing is binding for subsequent civil suit under Oklahoma law).

(390) See, e.g., Carter v. Burch, 34 F.3d 257, 265 (4th Cir. 1994) (finding that a judge's letter opinion ordering plaintiff's release on a writ of habeas corpus was hearsay and not within the business records exception), cert. denied, 115 S. Ct. 1101 (1995). Also, as noted in Carter, a judge's balancing of probative value and prejudice by a judge under section 403 of the Federal Rules of Evidence will likely keep these opinions out, which by their very nature are a prejudgment of a case by a higher ranking court. See Nipper v. Snipes, 7 F.3d 415, 418 (4th Cir. 1993)

(391) Heck v. Humphrey, 114 S. Ct. 2364 (1994).

(392) Imbler v. Pachtman, 424 U.S. 409, 436-37 (1976) (White, J., concurring). Justice White stated:

Even the risk that decisions in habeas corpus proceedings will be skewed is

applicable in the case of policemen; and if it supplies a sufficient reason

to extend absolute immunity to prosecutors, it should have been a sufficient

reason to extend such immunity to policemen. Indeed, it is fair to say that

far more habeas corpus petitions turn on the constitutionality of action

taken by policemen than turn on the constitutionality of action taken by


Id. at 436 n.3.

(393) See id. at 436 n.3 (White, J., concurring). Justice White noted: We simply rely on the ability of federal judges correctly to apply the law to the facts with the knowledge that the overturning of a conviction on constitutional grounds hardly dooms the official in question to payment of a damage award in light of the qualified immunity which he possesses, and the inapplicability of the res judicata doctrine.


(394) Id.

(395) See, e.g., James Cleary, When the Prisoner Is Innocent, Hum. Rts., Spring 1987, at 42; Bennett L. Gershman, The New Prosecutors, 53 U. Pitt. L. Rev. 393 (1992); Walter W. Steele, Jr., Unethical Prosecutors and Inadequate Discipline, 38 Sw. L.J. 965 (1984); see also Bennett L. Gershman, Prosecutorial Misconduct [sections] 13.6 (1990).

(396) Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. Rev. 693, 697 (1987). A similar methodology was used by this author in a search for any new cases, and to follow up those Professor Rosen cited.

(397) Id. In addition to the lack of enforcement, Professor Rosen observed that the move towards "harmless error" analysis for Brady violations has further decreased the chances of reversing a conviction, and thus the deterrent effect of Brady. Id. at 705-08.

(398) Id. at 720.

(399) Id. at 720-31.

(400) 638 P.2d 1311 (Cal. 1982)

(401) Id. at 1314. During a murder trial, Price was asked by defense counsel for a copy of a cabdriver's "trip ticket," after the cabby testified he had picked up the defendant near the crime scene. Id. Price originally told defense counsel he had no such ticket. Id. When Price realized the ticket he had did not coincide with the cab-driver's testimony, he altered the ticket's time and place, photocopied it, destroyed the original, and presented the photocopy to the defense. Id.

(402) Id.

(403) Id. at 1316.

(404) Id. at 1317-18. The California Supreme Court deemed a five year suspension appropriate given Price's record, cooperation, and demonstration of remorse. Id. at 1318. The court noted he had "been under mental and emotional stress for several years because of a heavy caseload and regular work weeks of 57 to 60 hours." Id. at 1315. As countered by the dissent, "[m]ost lawyers live honorably under conditions of stress and contention. It is the very air they breathe." Id. at 1319 (Richardson, J., dissenting).

(405) Virginia State Bar ex ref. Sixth Dist. Comm. v. Read, No. 86-17, at 8 (Cir. Ct. Rockbridge County, Sept. 11, 1989) (unpublished order on file with the Albany Law Review); See Rosen, supra note 396, at 729.

(406) Virginia State Bar, supra note 405, at 3; Rosen, supra note 396, at 729. Sils said that he could testify that Mesner looked like the man he saw, "but he would also have to say that he was certain the defendant was not the man." Id. (citation omitted).

(407) Virginia State Bar, supra note 405, at 3.

(408) Id. at 3-4.

(409) Id.

(410) Id. at 4.

(411) Id.

(412) Id.

(413) Id. at 8.

(414) Id. at 6.

(415) Id. at 7-8.

(418) Read v. Virginia State Bar, 357 S.E.2d 544, 546 (Va. 1987).

(417) Id.

(418) Id. at 547 (citing United States v. Darwin, 757 F.2d 1193 (11th Cir. 1985), United States v. Behrens, 689 F.2d 154 (10th Cir.), cert. denied, 459 U.S. 1088 (1982); United States v. Stone, 471 F.2d 170 (7th Cir. 1972), cert. denied, 411 U.S. 931 (1973); United States v. Elmore, 423 F.2d 775 (4th Cir.), cert. denied, 400 U.S. 825 (1970)).

(419) Indeed, Read had tried the same gambit on the Bar Disciplinary Committee which unanimously rebuffed the argument:

Counsel's argument is misplaced. It may be appropriate in response to

a defense motion to dismiss for prosecutorial misconduct under the line of

cases out of Brady v. Maryland. . . . But, the trial court's disclosure

order remains in effect as does the continuing obligation of the prosecutor

to comply with it. Moreover, it is equally misplaced in this proceeding

under DR 8-102(A)(4) requiring a prosecutor to disclose all information

required by law.

Virginia State Bar, supra note 405, at 6-7.

(420) The Supreme Court expressly advised that if only one of two eyewitnesses told the prosecutor that the defendant was not the perpetrator, failure of the prosecutor to disclose this statement would require reversal of the conviction. United States v. Agurs, 427 U.S. 97, 112 n.21 (1976) (citation omitted).

(421) See Model Rules of Professional Conduct Rule 3.8(d) (requiring prosecutors to make "timely disclosure" of Brady information). ABA Standard 3-3.11(a) declares it unprofessional conduct for a prosecutor to "intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity," of Brady material. ABA Standards for Criminal Justice Prosecution Function & Defense Function [sections] 3-3.11(a) (3d ed. 1993) (emphasis added).

(422) Rosen found similarly confounding determinations by bar associations regarding the few other cases where disciplinary action was considered. See Rosen, supra note 396, at 720-31. Gershman's ongoing work on the subject of prosecutorial misconduct also details a complete failure by bar associations to act against prosecutors -- unless a prosecutors dares to "sting" a fellow lawyer. GERSHMAN, supra note 395, at 13-20 (discussing in re Friedman, 392 N.E.2d 1333 (Ill. 1979)). My own search of published cases found 31 cases since 1958 involving the disbarment of prosecutors. Nearly all concerned actions taken after a criminal conviction, such as narcotics offenses or bribery. Of the prosecutors disbarred, only two involved conduct that possibly could give rise to a section 1983 suit, but nothing along the lines of in-court misconduct. See D'Arcy v. New York State Bar Ass'n, 374 N.Y.S.2d 222 (App. Div. 1975) (disbarring a district attorney after conviction for false imprisonment of young women); Stern v. Texas ex rel Ansel, 869 S.W.2d 614 (Text Ct. App. 1994) (holding that prosecutor who disclosed grand jury testimony contradicting public statements made by sheriff violated the law and was subject to statutory removal). Consequently, I share the mildly stated sentiments of Professor Gershman that "[a]lthough bar associations frequently make bold and lofty pronouncements about self-policing and requiring attorneys to conform to the high standards of the profession, a review of their records of disciplining prosecutors for misconduct is disappointing." Gershman, supra note 395, at [sections] 13.9.

(423) No. CR-79-65 (W.D.N.Y. 1979).

(424) Rosen, supra note 396, at 726 (quoting United States v. Brophy, No. CR-79-65 (W.D.N.Y. 1979)).

(425) See Rosen, supra note 396, at 726.

(426) Id. at 726 (quoting Brophy v. Committee on Professional Standards, 442 N.Y.S.2d 818 (App. Div. 1981)). No elucidation of the facts of the Brophy case accompanied the opinion.

(427) Cooney v. Park County, 792 P.2d 1287, 1309 (Wyo. 1990) (Urbigkit, J., dissenting), cert. granted and judgment vacated, 501 U.S. 1201 (1991).

(423) Houston v. Partee, 978 F.2d 362, 369 (7th Cir. 1992), cert. denied, 113 S. Ct. 1647 (1993); see supra notes 220-24 and accompanying text.

(429) West's Legal Directory (June 10, 1993).

(430) Telephone Interview with Illinois Attorney Registration and Disciplinary Commission [name withheld] (June 15, 1995).

(431) Carter v. Burch, 34 F.3d 257, 260 (4th Cir. 1994), cert. denied, 115 S. Ct. 1101 (1995); see supra notes 225-33 and accompanying text.

(432) Telephone Interview with Loudon County District Attorney's Office [name withheld] (June 15, 1995).

(433) Virginia State Bar ex rel Seventh Dist. Comm. v. Burch, Chancery No. 15740 (Loudon Co. Cir. October 17, 1994) (unpublished order on file with the Albany Law Review). The court found the bar "failed to prove by clear and convincing evidence" a violation of a prosecutor's duty to disclose under Rule 8-102(A)(4). Id at 1.

(434) Read v. Virginia State Bar, 357 S.E.2d 544 (Va. 1987). See supra notes 405-22 and accompanying text.

(436) In re Read, No. 94-080-0771; 0842 (Va. State Bar Disciplinary. Comm., 6th Dist. March 25, 1994). According to the order, Read suffered from a "serious personality disorder which interfered with his capacity to conduct a law practice." He had been suspended from practice for three years for making unwanted sexual advances against his clients from 1979 through 1984 and for an unnamed emotional malady. Virginia State Bar, supra note 405.

(436) Hill v. City of New York, 45 F.3d 653, 658 (2d Cir. 1995).

(437) West's Legal Directory (February 19, 1996). Richard Adago joined Hoffinger, Friedland, Dobrish, Bernfeld & Stern, in 1993, within a year after the case against Hill was dismissed. Id.

(438) Id. The case against Adago is still pending. Mr. Adago's attorney denies Hill's allegations, and has stated that Adago was under no legal obligation to turn over the first videotape to Ms. Hill any sooner than he did, because it was not exculpatory Brady evidence but merely an inconsistent statement by the victim. Deborah Pines, Court Refuses to Dismiss Claims Against Child Abuse Prosecutor, N.Y. L.J. Jan. 19, 1995, at 1.

(439) Monell v. Department of Social Servs., 436 U.S. 658, 700 (1978).

(440) Id. at 717 (Rehnquist, J., dissenting).

(441) Imbler v. Pachtman, 424 U.S. 409, 416 (1976) (observing that the gravamen of Imbler's complaint was that Pachtman intentionally and negligently allowed Costello to give false testimony).

(442) Id. This claim concerned the alleged suppression of a fingerprint expert. Id. at 414-15.

(443) Id. Imbler claimed that Pachtman prosecuted him even though Pachtman knew that Imbler had passed a lie detector test, and that a police artist altered a suspect sketch drawn shortly after the crime to more closely resemble Imbler. Id.

(444) Heck v. Humphrey, 114 S. Ct. 2364, 2372 (1994).

(445) Cf. Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 84-85 (1984).

(446) See supra note 381 and accompanying text.

(447) See supra notes 124-38 and accompanying text; see also Hill v. City of New York, 45 F.3d 653, 662 (2nd Cir. 1995) (noting prosecutorial immunity still reaches Brady claims).

(448) Some states have res judicata rules that would bind all parties to the probable cause determination made below. See, e.g., Hubbert v. City of Moore, 923 F.2d 769, 772-73 (10th Cir. 1991) (holding that probable cause determination at preliminary hearing binds subsequent civil suits under Oklahoma law). As always with collateral estoppel, the arrestee turned plaintiff must have had a full and fair opportunity to litigate the probable cause issue, including the chance "to present evidence, review evidence the prosecution presented, and cross-examine the witnesses against her." Id. at 773. If the trial court finds no genuine issue of fact existed as to the "full and fair opportunity," preclusion is permitted.

(449) Imbler v. Pachtman, 424 U.S. 409, 413 (1976) (quotation omitted).

(450) Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991).

(451) See Earl Maltz, The Nature of Precedent, 66 N.C. L. Rev. 367, 368-72 (1988).

(452) Imbler, 424 U.S. at 431.

(453) See, e.g., Ky. Rev. Stat. Ann. [sections] 15.753 (Baldwin 1994). This statute is entitled and pertains to "Indemnification From Financial Loss in Legal Actions for Attorney General, Commonwealth's Attorneys, County Attorneys, and Their Staffs." Id.

(454). See, e.g., Conn. Gen. Stat. Ann. [sections] 53a-155 (West 1995) (making it a class D felony to alter, destroy or fabricate evidence believed to be used before an official proceeding); accord Fla. Stat. Ann. [sections] 918.13 (West 1995) (declaring that "[t]ampering with or fabricating physical evidence" is a felony of the third degree); N.J. Stat. Ann. [sections] 2C:28-5 (West 1995) (noting that tampering with witnesses is a second degree crime).

(455) Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2620 (1993) (Scalia, J., concurring); Buckley v. Fitzsimmons, 919 F.2d 1230, 1244 (7th Cir. 1990).

(456) Buckley, 113 S. Ct. at 2620.

(457) 475 U.S. 335, 339 (1986); see also DeLoach v. Bevers, 922 F.2d 618, 621 (10th Cir. 1990) (holding officer who suppressed exculpatory medical evidence could not "hide behind the decisions of others" to prosecute the case), cert. denied, 502 U.S. 814 (1991), Robinson v. Maruffi, 895 F.2d 649, 655-56 (10th Cir. 1990) (holding police officers who conspire to give false evidence against person who is later indicted and forced to go to trial cannot claim the grand jury provided an intervening cause for plaintiff s harms); Dick v. Watonwan County, 562 F. Supp. 1083 (D. Minn. 1983) (finding county welfare agents who presented false and misleading evidence before judge who routinely grants their orders could not claim a break in the causal chain, and may still be liable), rev'd on other "rounds 738 F.2d 939, 1098-1104 (8th Cir. 1984).

(458) Buckley, 113 S. Ct. at 2617. The Court stated:

A prosecutor may not shield his investigative work with the aegis of

absolute immunity merely because, after a suspect is eventually arrested,

indicted, and tried, that work may be retrospectively described as

`preparation' for a possible trial; every prosecutor might then shield

himself from liability for any constitutional wrong against innocent

citizens by ensuring that they go to trial.


(459) Buckley, 113 S. Ct. at 2623 (Kennedy, J., concurring in part and dissenting in part).

(460) Anthony v. Baker, 955 F.2d 1395, 1399 (10th Cir. 1992) (finding complaining witnesses who presented false evidence to a grand jury did not enjoy absolute immunity either before or after 1871); White v. Frank, 855 F.2d 956, 961 (2nd Cir. 1988) (distinguishing between the completely immunized tort of giving false testimony and the qualifiedly immunized tort of a complaining witness initiating a baseless prosecution). Resolution of whether a party was a "lay witness" entitled to absolute immunity or a "complaining witness" would be required, but this inquiry has long since been part of a malicious prosecution claim. Anthony, 955 F.2d at 1399 n.2.

(461) J San Filippo v. United States Trust Co., 737 F.2d 246, 254-56 (2nd Cir. 1984), cert. denied, 470 U.S. 1035 (1985); See Jennifer S. Zbytowski, The Case Against Section 1983 Immunity For Witnesses Who Conspire With A State Official to Present Perjured Testimony, 93 Mich. L. Rev. 2192, 2208-16 (1995) (examining the common law history of witness immunity and finding that in 1871 conspiring to present perjured testimony would not have been immune conduct).

(462) See, e.g., Sanders v. English, 950 F.2d 1152 (5th Cir. 1992); Bretz v. Kelman, 773 F.2d 1026 (9th Cir. 1985); Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980), cert. denied, 450 U.S. 920 (1981); Morrison v. Jones, 551 F.2d 939 (4th Cir. 1977).

(463) See, e.g., Cloutier v. Town of Epping, 714 F.2d 1184 (1st Cir. 1983); Martin v. King, 417 F.2d 458 (10th Cir. 1969).

(464) Albright v. Oliver, 114 S. Ct. 807 (1994).

(465) The Second Circuit recently summarized the lower court's reception of the Albright decision:

We are not alone in our reluctance to take on Albright. Many other

circuits have similarly avoided addressing the impact of Albright on their

extant malicious prosecution law when it was plain that a plaintiff could

not have satisfied pre-Albright requirements, which were not clearly done

away with by Albright.

Pinaud v. County of Suffolk, 52 F.3d 1139, 1154 n.15 (2d Cir. 1995) (citations omitted).

(466) Siegert v. Gilley, 500 U.S. 226, 231 (1991) (holding that when a defendant asserts qualified immunity the court should first inquire whether the complaint asserts a violation of Constitutionally protected rights).

(467) No one could better testify about the absurdity of deciding the immunity question before deciding if there is a cognizable claim than Stephen Buckley. After three trips to the court of appeals and two to the Supreme Court, Buckley eventually achieved little in his lawsuit against the prosecutors who allegedly framed him. On remand, the district court dismissed Buckley's false arrest claim against the prosecutors because he based the claim on a substantive Due Process argument not supported in Albright. Buckley v. Fitzsimmons, No. 88C-1939, 1996 WL 10899 (N.D. Ill. Jan. 9, 1996). As the arrest was secured by a warrant, the court found that no liability could lie with the prosecutor for the extensive pre-trial detention. Id. at *3.

(468) See Cleary, supra note 395, at 44-46 (discussing those laws, their narrow application, and their small compensations).

(469) United States v. Modica, 663 F.2d 1173, 1185 (2d Cir. 1981), cert. denied, 456 U.S. 989 (1982).

(470) See Jon O. Newman, How to Protect Other Rodney Kings, N.Y. Times, May 1, 1992, at 35. Jon Newman, the Chief Judge of the Second Circuit, observed that criminal prosecution of civil rights abusers is an inadequate deterrent because of "the inevitable reluctance of the ordinary citizen to brand a law enforcement officer as a criminal . . . even if they think he acted improperly." Id; see also Petitioner's Brief at 30, Buckley v. Fitzsimmons, 113 S. Ct. 2606 (1993) (discussing several Illinois cases where serious instances of prosecutorial abuse went unprosecuted).

(471) Imbler v. Pachtman, 424 U.S. 409, 428 (1976) (citing Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949), cert. denied, 339 U.S. 949 (1950)).

Douglas J. McNamara, B. A. State University of New York at Albany, 1992; J.D. New York University School of Law, 1995. The author is currently a Staff Attorney in the Legal Aid Society's Criminal Defense Division. The author wishes to thank Professor Burt Neuborne, New York University School of Law, Professor David Shapiro, Harvard Law School, Donald Mankoff, and Thomas Anderson for their help with earlier drafts of this Article.
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