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PROSECUTORIAL IMMUNITY NO LONGER ABSOLUTE

NCJ Number
147592
Journal
Criminal Justice Volume: 8 Issue: 4 Dated: (Winter 1994) Pages: 21-24,59- 64
Author(s)
T J Foltz
Date Published
1994
Length
10 pages
Annotation
Prosecutorial immunity is discussed.
Abstract
The U.S. Supreme Court's decision in Buckley v. Fitzsimmons, 113 S.Ct. 2606 (1993), points to a growing recognition of the difficulty of maintaining absolute prosecutorial immunity when the system imprisons the wrong person for the wrong reason, i.e., when exculpatory evidence has been concealed or incriminating evidence has been fabricated. When prosecutors abandon traditional advocacy roles to participate pretrial or precharge in police investigative work in collateral law enforcement administration on a day-to-day, case-by-case basis, they may enjoy only qualified immunity for that conduct. This article discusses in some detail the Court's opinions in Buckley and Imbler v. Pachtman, 424 U.S. 409 (1976) and briefly covers the Court's opinions in other related cases. To assist in forecasting Buckley's impact on malicious prosecution cases against prosecutors, the author examines cases involving police officers, who are protected only by qualified immunity for their roles in mishandling exculpatory evidence, and situations involving police/prosecutor interaction including release-dismissal agreements. In light of the decisions discussed, the author predicts that prudent prosecutors will be more cautious about the point at which they enter a police investigation. Participating in the actual formulation of the investigation and advising the police in preliminary stages, or fabricating evidence seems sure to result in qualified immunity when a section 1983 follow-on suit is filed by a defendant after acquittal or dismissal of a criminal charge.