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Reconsidering Absolute Prosecutorial Immunity
Brigham Young University Law Review, 2005 by Johns, Margaret Z
In his concurring and dissenting opinion, Justice Kennedy pointed out the difficulties that the majority's approach would create for the lower courts.257 In his view, drawing a line between advocatory and investigatory functions requires "difficult and subtle distinctions" that are not clarified by the adoption of a probable cause requirement.258 To Justice Kennedy, the Court's attempt to establish a "bright-line standard"259 "has created more problems than it has solved."260 As will be discussed in Part IV.B, the application of the probable cause rule and the characterization of post-probable cause conduct have indeed proven troublesome to the lower courts.
4. Kalina v. Fletcher
The Court's most recent decision on the scope of absolute prosecutorial immunity is Kalina v. Fletcher.261 In Kalina, the question posed was whether absolute immunity applied when a prosecutor made false statements of fact in an affidavit supporting an application for an arrest warrant.262 The prosecutor had initiated criminal proceedings by filing three documents: (1) an unsworn information charging the defendant with burglary; (2) an unsworn motion for the warrant; and (3) a certification summarizing the evidence supporting the charges, which was executed by the prosecutor under penalty of perjury.263 The third document, the certification (which implicated the suspect in the crime), was factually inaccurate in several respects.264 Based on these documents, the trial court found probable cause and issued the arrest warrant.265 After the charges were dismissed on the prosecutor's motion,266 the plaintiff sued the prosecutor for damages under ยง 1983.267 The District Court denied the prosecutor's motion for summary judgment on the basis of absolute immunity268 and the Ninth Circuit affirmed.269 In light of a conflict in the circuit courts on this question, the Supreme Court granted certiorari.270
Applying its functional immunity doctrine, the Court held that the prosecutor's conduct in preparing the three documents was protected by absolute immunity because they were prepared as part of an advocate's function.271 But the critical question was "whether she was acting as a complaining witness rather than a lawyer when she executed the certification '[u]nder penalty of perjury.'"272 As the Court had previously held, complaining witnesses are not entitled to immunity.273 The Court concluded that the prosecutor was acting as a complaining witness, not an advocate, and therefore was not entitled to absolute immunity for signing the false certification under penalty of perjury.274 As the Court explained, the ethics of the legal profession counsel that advocates should not put their own credibility in issue.275 And while the prosecutor acting as an advocate could properly claim absolute immunity for evaluating the strength of the evidence to support the warrant and for determining which facts to include in the certification, "[t]estifying about facts is the function of the witness, not of the lawyer."276
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