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Reconsidering Absolute Prosecutorial Immunity
Brigham Young University Law Review, 2005 by Johns, Margaret Z
Moore v. Valder394 illustrates the first approach. After the plaintiff was acquitted on fraud charges,395 he filed a Bivens action alleging that the prosecutor had intimidated and coerced witnesses to testify falsely.396 Applying the categorical approach to the immunity question, the D.C. Circuit held that intimidating and coercing witnesses was an investigatory function, not advocatory.397 The court explained that the prosecutor's actions were "a misuse of investigative techniques legitimately directed at exploring whether witness testimony is truthful and complete and whether the government has acquired all incriminating evidence. It therefore relates to a typical police function, the collection of information to be used in a prosecution."398
In contrast to the Moore court's position that witness coercion is categorically an investigative technique, the Fifth Circuit considers the subjective state of mind of the prosecutor at the time of the misconduct to determine the function she was performing.399 In Cousin v. Small, the plaintiff alleged that prosecutors had coerced a witness to testify falsely, leading to his wrongful murder conviction.400 The Fifth Circuit considered the chronology of events and found that at the time of the misconduct the prosecutor was acting as an advocate, not as an investigator.401 The court reached this conclusion because "the interview was intended to secure evidence that would be used in the presentation of the state's case at the pending trial of an already identified suspect, not to identify a suspect or establish probable cause."402 In other words, the immunity that applies depends on the prosecutor's subjective state of mind at the time of the misconduct.
Similarly, the Ninth Circuit has adopted a subjective state-ofmind test in three recent cases.403 For example, in Eroam v. Boga-n^ the plaintiff alleged that the prosecutor and investigator improperly avoided interviewing exculpatory witnesses and withheld exculpatory evidence, including tape recordings. The Ninth Circuit remanded the case for development of the factual chronology of events and for a determination of whether the prosecutor was acting as an investigator or as an advocate.405 As the court explained, the prosecutor is absolutely immune if he was gathering evidence to present to the trier of fact, but only protected by qualified immunity if he was conducting an investigation to determine whether probable cause existed.406 In other words, the prosecutor's subjective intention determines which immunity applies.407
As explained above, injecting a subjective state-of-mind component into the immunity defenses is problematic.408 The Buckley Court cautioned against allowing prosecutors to obtain absolute immunity by claiming that investigative functions were for advocacy purposes,409 which is exactly what this approach seems to invite. Moreover, this approach has been rejected by the Supreme Court in the line of cases that transformed qualified immunity from a good-faith standard to an objective standard.410 Subjective inquiries frustrate the goal of the immunity defense, which is to ensure the early disposition of the litigation.411 These inquiries lead to wideranging discovery that "can be peculiarly disruptive of effective government."412
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