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Reconsidering Absolute Prosecutorial Immunity

Brigham Young University Law Review, 2005 by Johns, Margaret Z

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The reconsideration of absolute prosecutorial immunity is especially urgent for two reasons: (1) recent empirical studies establish that prosecutorial misconduct is a significant factor contributing to numerous wrongful convictions of innocent people;33 and (2) emerging circuit splits on the application of the absolute prosecutorial immunity doctrine suggest that it is becoming increasingly unworkable and is in fact undermining the goals it was designed to achieve.34

More Articles of Interest: Prosecutors are not entitled to absolute immunity for actions unrelated to...; Prosecutorial misconduct; Civil liability and police-prosecutor relations; Prosecutorial misconduct; Prosecutorial Misconduct

First, a 2003 study presents alarming evidence of the frequency of prosecutorial misconduct resulting in the wrongful conviction of hundreds of innocent people.35 This conclusion is reinforced with the ongoing investigation by the Innocence Project at Benjamin N. Cardozo School of Law, which reported that, as of January 2005, 154 people who served time in prison for crimes they did not commit have been exonerated by DNA evidence.36 In many of these cases, prosecutorial misconduct contributed to the wrongful convictions.37 Based on these studies, one can no longer dismiss the problem of prosecutorial misconduct as infrequent nor pretend that sufficient safeguards exist in the system to protect the innocent from wrongful convictions.

Second, the doctrine of absolute prosecutorial immunity is proving increasingly problematic in the lower courts. Attempting to apply the current absolute immunity defense, the Fifth and Ninth Circuits have recently applied a subjective standard to the determination of whether a prosecutor was acting as an advocate or an investigator.38 This standard requires extensive discovery into the details of the criminal investigation and creates questions of fact as to the prosecutor's subjective state of mind, which cannot be readily resolved by pretrial motions.39 This approach effectively defeats the entire purpose for the immunity defenses, which is to protect officials not only from the burden of liability, but also from the burden of litigation.40 In other words, in these circuits-and in others that may follow their lead-the current immunity doctrine not only deprives the victim of a needed remedy, it also deprives honest prosecutors of the protection they deserve from burdensome and distracting litigation.

This Article begins by outlining the significance of the problem of absolute prosecutorial immunity. Specifically, Part II discusses the frequency of prosecutorial misconduct and wrongful convictions and explains the inadequacy of current deterrents and corrective mechanisms. I begin with this exposition of the problem because in developing the absolute immunity doctrine the federal courts have not taken into account the vast and mounting evidence of frequent and unchecked prosecutorial misconduct resulting in the wrongful incarceration of many innocent people. Rather, courts confidently assert that civil liability is unnecessary because other mechanisms are sufficient to deter and correct prosecutorial misconduct.41 Absolute immunity would not be a serious problem if prosecutors rarely engaged in misconduct, if corrective mechanisms were effective, and if innocent people were not wrongfully convicted. To the extent that the current absolute immunity doctrine is based on such mistaken assumptions, it is important to recognize the truth about prosecutorial misconduct.

Reconsidering Absolute Prosecutorial Immunity

Brigham Young University Law Review, 2005 by Johns, Margaret Z

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