Do prosecuting attorneys have absolute immunity?

Posted 3/10/2015

Glenn Reynolds suggests that prosecuting attorneys have "absolute immunity" from being sued for damages caused by their misconduct.  The context involves a prosecuting attorney who inserted two lines into the transcript of the interrogation of a criminal defendant, and then provided the altered transcript to the defendant's attorney during plea negotiations.  The false lines were the only evidence supporting the prosecutor's threat to bring more serious charges, thus misleading the defendant's attorney into believing that worse results could happen to his client should the client not accept the prosecutor's offer.  The prosecutor did not acknowledge that he added the false evidence until much too late, and even argued to the trial judge that it was done as a "joke."

The California appellate court upheld the trial court's dismissing all charges based on the prosecutor's "outrageous government misconduct."

Actually, those of us here in the Pacific Northwest recall that the United States Supreme Court held in Kalina v. Fletcher, 522 U.S. 118 (1997) that the federal civil rights statute 42 U.S.C. Sec. 1983 "may create a damages remedy against a prosecutor for making false statements of fact in an affidavit supporting an application for an arrest warrant" where the prosecutor was acting as a complaining witness rather than a lawyer.  The local practice here was for the prosecuting attorney to swear under penalty of perjury as to the facts supporting the request for a judge to issue an arrest warrant, and in this case the supposedly truthful facts were not.  The King County prosecutor dropped the charges, but the defendant sued for damages.  The government argued the prosecutor was protected by "absolute" immunity, but the Ninth Circuit -- upheld by the Supreme Court -- ruled otherwise.  The prosecutor may still be protected by "qualified" immunity, but the immunity is not "absolute."

It is not clear to me whether the California prosecutor would be protected by absolute or merely qualified immunity, but it appears that by personally adding language to the transcript, and then providing that as factual evidence to the defendant, the prosecutor is acting far more like a witness than as an attorney.  This suggests that he would not be entitled to absolute immunity under Kalina.