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Reconsidering Absolute Prosecutorial Immunity
Brigham Young University Law Review, 2005 by Johns, Margaret Z
The reason that these two cases fail to neatly resolve the issue is that the Court focused on different factors in reaching its conclusions in Buckley and Kalina. In Buckley, the Court focused on the chronology of the case. It concluded that since the boot print evidence was evaluated before probable cause was established, the prosecutor was necessarily acting as an investigator, not as an advocate.703 In Kalina, the Court focused on the fact that the prosecutor was acting as the complaining witness, and not as an advocate.704
These cases reveal the unsatisfactory nature of the current functional approach. A hypothetical example illustrates the problem. Assume a defendant had been arrested after a judicial finding of probable cause. The prosecutor then bribed a witness to sign an affidavit of false facts and introduced that affidavit into evidence. The Buckley case would not resolve the question because the misconduct occurred after probable cause was established. Arguably, under Buckley, the hypothetical prosecutor was acting as an advocate because the misconduct occurred after the establishment of probable cause.705 And the Kalina case would not solve the question because the prosecutor did not sign the false affidavit as a witness. Under Kalina, she was arguably acting as an advocate because she prepared a document for the purpose of submitting evidence in the judicial proceeding.706 If she were acting as an advocate under Buckley and Kalina, she would be entitled to absolute immunity. But this result seems entirely at odds with the outcome in both decisions.
A better approach would treat all cases of evidence fabrication identically. Rather than considering whether probable cause has been established (the Buckley approach), or whether the prosecutor is acting as a witness (the Kalina approach), courts should consider the nature of the misconduct: manufacturing false evidence. It is the same offense in each case and should be treated the same in each case. Manufacturing false evidence is neither an investigative function nor an advocacy function; it is a crime.707 It is equally wrong whether it occurs early or late in the case. It is equally wrong if the prosecutor swears to the false evidence herself or has a third party swear to it. As the Buckley Court held, there is no common-law tradition protecting this misconduct.708 If the prosecutor compounds the problem by persisting in the misconduct by both preparing the false evidence and then introducing it, the subsequent additional misconduct should not redound to the prosecutor's benefit by effectively extending absolute immunity beyond the judicial phase of the proceedings.709
Moreover, as with cases involving the suppression of exculpatory evidence, under the functional approach prosecutors and police officers should receive the same immunity for the same misconduct. Under existing case law, police officers are entitled to qualified immunity for fabricating evidence.710 The prosecutor should receive no greater protection.711 It is inconsistent and incongruous to afford prosecutors absolute immunity for the same conduct for which police officers receive only qualified immunity.712
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