Since the Supreme Court decided Imbler v. Pachtman in 1976, prosecutors have been absolutely immune from any suit under 42 U.S.C. § 1983 alleging that the prosecutors deliberately withheld exculpatory information from the defendant or knowingly used fabricated evidence against a defendant. The Court has continued to adhere to this broad grant of immunity, notwithstanding the fact that the rationale employed by the Imbler Court has been largely discredited and the fact that doing so has created significant moral hazard concerns. In fact, in several recent cases, the Court has shown great reluctance to allow courts or juries any questioning of prosecutors.
This article explores the Court’s continued embrace of Imbler and concludes that this adherence is best understood in terms of the Court’s identification of prosecutors with other participants in criminal proceedings and the Court’s reluctance to subject prosecutors to possible lawsuits from those who are charged but not convicted. This article proposes that these concerns be addressed by limiting the potential size of the plaintiff class to those plaintiffs who make a threshold showing of factual innocence. Such a showing is the same that is required from criminal defendants who are suing their counsel for malpractice, and the concerns raised by the courts in these criminal defense malpractice actions mirror the concerns underlying prosecutorial immunity. Requiring plaintiffs to meet this threshold showing, as well as meet the current pleading requirements, could balance the Court’s concerns with protecting prosecutors who fail to win a case with some accountability for the innocent victim(s) of deliberate prosecutorial misconduct.
Karen McDonald Henning, The Failed Legacy of Absolute Immunity Under Imbler: Providing a Compromise Approach to Claims of Prosecutorial Misconduct, 48 Gonz. L. Rev. 219 (2013).