Reconsidering Absolute Prosecutorial Immunity

In short, absolute immunity for Bra-dy violations should be reconsidered. Its application is unwarranted by the policies underlying the doctrine and fosters prosecutorial misconduct that is unlikely to be checked by existing procedural safeguards. Finally, it is inconsistent with the functional approach to immunity defenses for prosecutors to enjoy absolute immunity for suppressing evidence while police officers only enjoy qualified immunity for the same misconduct.

B. Absolute Immunity Should Not Apply To Shield a Prosecutor from Liability for Prior Acts of Misconduct That Occurred Before Absolute Immunity Attached

As discussed in Part IV.B above, confusion has arisen among lower courts about how the immunity doctrines apply when a prosecutor has fabricated evidence or tampered with witnesses and then introduced that corrupted evidence in a judicial proceeding.689 This confusion is an understandable consequence of the uncertainties surrounding the immunity doctrines. But, in this instance, the Court has given some guidance in two decisions, Buckley v. Fitzsimmons690 and Kalina v. Fletcher,691 which suggest that prosecutors who fabricate evidence should receive qualified, not absolute, immunity.

In Buckley, the prosecutor conspired with police to fabricate false evidence by retaining an unreliable anthropology expert to connect a boot print to the accused's boot.692 The defendant spent ten months in jail awaiting trial.693 The expert testimony was the principal evidence used against him at trial.694 When the jury was unable to convict, he spent another two years in jail awaiting a retrial.695 The charges were ultimately dismissed after the expert died.696

The Court held that the fabrication of evidence during the investigative phase would not be protected by absolute immunity, even though the evidence was later used in the trial.697 With respect to the fabrication of evidence, the Court found that "there is no common-law tradition of immunity for it, whether performed by a police officer or prosecutor."698 And the Court emphatically rejected the contention that a prosecutor may shield his investigative misconduct by presenting fabricated evidence to a grand jury or introducing it at trial because "every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial."699 Thus, Buckley supports the proposition that a prosecutor who manufactures evidence during the investigative phase cannot bootstrap the immunity defense from qualified to absolute by introducing that evidence in court.

Kalina- supports the same conclusion.700 There the prosecutor manufactured evidence by swearing to false statements of fact to support an application for an arrest warrant.701 The Court rejected her claim for absolute immunity, holding she was not acting as an advocate in testifying as to the facts supporting the application because "[testifying about facts is the function of the witness, not of the lawyer."702 Thus, under Kalina, a prosecutor who creates false evidence and then submits it to a court is not entitled to absolute immunity.