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Reconsidering Absolute Prosecutorial Immunity
Brigham Young University Law Review, 2005 by Johns, Margaret Z
It is virtually impossible to identify any injury to the judicial process resulting from a rule permitting suits for such unconstitutional conduct, and it is very easy to identify an injury to the process resulting from a rule which does not permit such suits. Where the reason for the rule extending absolute immunity to prosecutors disappears, it would truly be "monstrous to deny recovery."678
In sum, imposing liability for suppression of exculpatory evidence poses no threat to the judicial process and indeed would have an entirely salutary effect.679
Moreover, unlike prosecutorial misconduct in the courtroom, the safeguards intended to protect the innocent-the adversary process, the threat of criminal prosecution, and professional discipline-are not available to correct the suppression of evidence. Indeed, it is reasonable to assume that such violations rarely come to light. Since this conduct occurs outside of the judicial process, "the judicial process has no way to prevent or correct the constitutional violation of suppressing evidence."680 As Justice White explained:
The judicial process will by definition be ignorant of the violation when it occurs; and it is reasonable to suspect that most such violations never surface. It is all the more important, then, to deter such violations by permitting damage actions under 42 U.S.C. § 1983 to be maintained in instances where violations do surface.681
Finally, in terms of the Court's functional approach to prosecutorial immunity, the prosecutor is not acting as an advocate in responding to a request to disclose exculpatory evidence as required by Brady.682 As Professor Joseph R. Weeks pointed out, the duty to disclose exculpatory evidence falls on the prosecutor because that office is the repository of the evidence gathered by the police:683 "Responding to such requests has nothing whatsoever to do with the prosecutor's role as advocate of the state in determining such things as whether to prosecute, what charges to assert, what court to bring the case before, and what evidence is to be offered by the state at trial."684 Thus, in the withholding of evidence, prosecutors are not performing an advocacy function and therefore should receive only qualified immunity.
In other words, extending absolute immunity for Bra-dy violations is incongruous with the functional approach to immunity. While the Court has never considered a § 1983 case in which a police officer was sued for failing to disclose exculpatory evidence that led to the plaintiffs wrongful conviction, the lower courts have uniformly held such cases are actionable and subject only to qualified immunity.685 One of the Court's "unquestioned goals of. . . § 1983 jurisprudence [is] ensuring parity in treatment among state actors engaged in identical functions."686 As the Court explained in Buckley v. Fitzsimmons, when prosecutors and police engage in the same act of misconduct, "it is 'neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.'"687 Where prosecutors and police engage in the same misconductsuppression of exculpatory evidence-they should both receive qualified immunity.688
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