Reconsidering Absolute Prosecutorial Immunity

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

Part III provides a brief historical background of § 1983 liability and the immunity defenses. Part IV describes the current state of the law, beginning in Part IVA with the Court's current functional approach to prosecutorial immunity. Part IV.B details the current conflicts and confusion in the lower courts. Part V argues that absolute prosecutorial immunity should be abandoned and replaced in all circumstances by qualified immunity. Finally, Part Vl presents a more modest proposal: even if absolute immunity were preserved for some core prosecutorial functions, it should not apply when the prosecutor has failed to disclose exculpatory evidence, nor should it be expanded to shield prosecutorial misconduct during the investigative phase.

II. THE SIGNIFICANCE OF PROSECUTORIAL MISCONDUCT

Four recent, major studies have confirmed the frequency of prejudicial prosecutorial misconduct.42 All four concluded that significant numbers of innocent people have been convicted in part as a result of prosecutorial misconduct.43 Additionally, they all found that many innocent people have been sent to death row as a result of prosecutorial misconduct.44 Furthermore, all four concluded that prosecutors are neither criminally prosecuted nor disciplined for their misconduct.45 In light of these findings, one can no longer indulge in the comforting but false fantasy that our criminal justice system sufficiently protects the innocent from prosecutorial misconduct and ensuing wrongful convictions.

Specifically, in 2003 the Center for Public Integrity reported its finding that since 1970 there have been over 2000 cases in which prosecutorial misconduct by state and local prosecutors was sufficiently prejudicial to require charges to be dismissed, convictions to be reversed, or sentences to be reduced.46 In 513 additional cases, prosecutorial misconduct was discussed in dissenting and concurring opinions.47 And in thousands of other cases, appellate courts found prosecutorial misconduct but upheld the convictions under the harmless error standard.48 The report catalogued fifty-four cases of prosecutorial misconduct in which innocent people were convicted of serious crimes, including murder, rape, kidnapping, and robbery; in many of these cases, the innocent were sentenced to death.49 Yet, of the 2000 cases of prejudicial prosecutorial misconduct, prosecutors were disciplined in only forty-four cases and were never criminally prosecuted.50

In 2000, the Innocence Project at Benjamin N. Cardozo School of Law at Yeshiva University published a major report on wrongful convictions. It revealed that as of August, 1999, DNA testing established "that 76 people had been sent to prison and death row for crimes they did not commit."51 Prosecutorial misconduct was a factor in twenty-six percent of those cases.52 According to this ongoing project, as of January 2005, 154 innocent people who served time in prison for crimes they did not commit have been exonerated by DNA evidence.53 Yet, like the Public Integrity study, the Innocence Project found that prosecutors were rarely held accountable for their misconduct.54