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Reconsidering Absolute Prosecutorial Immunity
Brigham Young University Law Review, 2005 by Johns, Margaret Z
In 1871, the United States' criminal justice system bore little resemblance to the system we know today. In the English commonlaw system, criminal prosecutions were primarily brought by the victim's family and friends,419 and the American system developed in part out of this tradition.420 But even before the Revolutionary War, the colonies had begun replacing private prosecutions with public prosecutions.421 Yet well into the nineteenth century, and despite the official establishment of public prosecutors' offices, the private prosecution of crimes remained a significant feature of the American criminal justice system.422 For example, in Pennsylvania, private prosecutions were common.423 Thus, "[p]arents of young women prosecuted men for seduction; husbands prosecuted their wives' paramours for adultery; wives prosecuted their husbands for desertion."424 In this system, the victims and their families often retained private lawyers to prosecute the perpetrators of crimes against them.425 Obviously, in this tradition prosecutors had a personal stake in the outcome and were far from detached and unbiased participants in the process. As one commenter observed, "At common law criminal prosecution adhered to the pure form of the adversary system; each aggrieved party retained his own counsel to prosecute his private interest."426
The persistence of the private prosecutor in the United States in the nineteenth century after the establishment of public prosecutors' offices has been explained by two main factors. First, because of inadequate funding of the office, public prosecutors were often incompetent.427 According to one delegate at the Illinois Constitutional Convention in 1847, "The [public prosecutor's] office was generally taken by young men who desired to become acquainted with people, and get into practice; as soon as this was accomplished they gave way to others."428 This view was expressed in many other jurisdictions as well.429 Second, public prosecutors were responsible for covering vast territories, often without any assistants, which compounded their incompetence.430 Traveling from county to county, the public prosecutor was often unprepared for the litigation, unfamiliar with the jury pool, and outmatched by defense counsel.431 As one delegate to the 1890-91 Kentucky Constitutional Convention explained, the public prosecutor was "a rat in a strange garret."432 Under these circumstances, victims and their families hired private lawyers to handle criminal prosecutions in the hope of securing convictions.433 Throughout the nineteenth century, private prosecution flourished in most states.434
While the office of public prosecutor was not well established in the late nineteenth century, the tort of malicious prosecution was clearly recognized in both the English and American common law.435 The elements of the action were: (1) that the prosecution terminated in favor of the plaintiff; (2) that there was no probable cause; and (3) that the defendant acted with malice.436 Although there was no prosecutorial immunity defense at the time, the elements of a cause of action for malicious prosecution essentially allowed for the same result as qualified immunity, since the plaintiff was required to prove malice and lack of probable cause.437 As explained in Blackstone's Commentaries, these requirements were necessary, "[f]or it would be a very great discouragement to the public justice of the kingdom if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried."438
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