*1 PACHTMAN, IMBLER DISTRICT ATTORNEY Argued 74-5435. November 1975 Decided March No. Powell, Burger, J., Court, opinion delivered the which *2 Rehnquist, Stewart, Blackmun, J., JJ., joined. C. and and White, J., opinion concurring judgment, filed in the in which an Marshall, post, p. Stevens, Brennan JJ., J., joined, and 432. part took no in the consideration or decision of the case.

Roger S. Hanson argued the cause and filed brief for petitioner.

John P. Farrell for argued respondent. cause With him on the John brief was Larson. H.

Solicitor Bork General argued the cause the United States as amicus With him on curiae. the brief were Acting Assistant Attorney Keeney, General Deputy Solicitor General Harry Friedman, Sachse, R. Jerome and Feit.* M. opinion delivered the Justice Powell

Me.

Court. question presented

The in this case is whether a state attorney prosecuting who scope acted within his duties in and initiating pursuing prosecution a criminal is amenable to suit under 42 U. S. § C. 1983 for alleged deprivations of the defendant's constitutional rights. The Court of Appeals for the Ninth Circuit held that he is not. 500 F. 2d 1301. We affirm.

I The events which culminated in span this suit many years and judicial several proceedings. They began in

* Evelle Younger, Attorney J. Winkler, Jack R. General, Chief Attorney General, Moore, S. Clark Assistant Attorney Assistant lungerich General, and Russell Fogel, Jr., Deputy Edward T. and Attorneys General, filed a brief for the State of California as amicus curiae urging affirmance.

Joseph P. Heady Busch and Patrick F. filed a brief Attorneys National District Association as amicus curiae. Los January 1961, attempted when two men to rob a and Angeles market run Morris Hasson. One shot fatally the two fled in different wounded Hasson, days directions. Ten killed Lingo later Leonard was his two attempting robbery while but Pomona, Cal., accomplices escaped. in this petitioner Paul Imbler, turned himself in of those case, day the next as one accomplices. Subsequent Los investigation led the Angeles Attorney District Imbler and believe that Lingo perpetrated had first crime as well, Imbler had killed Hasson. Imbler was with charged first-degree felony murder for Hasson’s death. eyewitness testimony State’s case consisted of *3 from Hasson’s wife and testimony identification three men who had seen fleeing Hasson’s assailants after the shooting. identify Mrs. Hasson was the unable gunman because a hat had obscured his but from face, police photographs she companion identified the killer’s as Lingo. Leonard The witness primary identification was Alfred passerby a Costello, night crime, who testified that he had a clear view both the gun- as man emerged from the market and again a few moments later when the fleeing gunman losing his hat—r —after turned to fire a shot at Costello1 and to his shed coat2 before continuing on. positively . Costello identified Imbler as the gunman. The second wit- identification ness, an attendant at a parking lot which the through gunman ultimately testified that he a side had escaped, and front view as passed. the man Finally, a customer who was leaving Hasson’s market as the robbers entered 1 This shot formed the basis of a second count Imbler assault, which was tried with the murder count. coat, This by identified by Hasson Mrs. as that her worn hus yielded band’s assailant, gun by determined ballistics evidence to be weapon. the murder they then and as good he look testified that had identified All of these witnesses exited moments later. customer also identified Imbler and the gunman, as the cross- Lingo. Rigorous the second man as Leonard any of these witnesses.3 examination failed shake spent Imbler’s defense was an He claimed have alibi. with several night killing bar-hopping the Hasson time the persons, Lingo and to have met the first This attempted robbery before the in Pomona. morning testimony was corroborated other Mayes, the accom- plice in the who also claimed to have Pomona robbery, accompanied Imbler on the earlier rounds of bars. jury punishment guilty found Imbler and fixed appeal Supreme On death.4 Court of California unanimously affirmed over numerous contentions of Imbler, People error. 2d Cal. 371 P. 2d Shortly Deputy Attorney thereafter District Richard who had been Pachtman, at Imbler’s trial respondent who is the this before wrote to Court, the Governor of describing California evidence turned up after trial himself and an for the investigator authority. state correctional In substance, evidence newly consisted of discovered witnesses for corroborating alibi, Imbler’s as as well new revelations about prime *4 witness background Costello’s which indicated he that trustworthy was less represented than he had originally to Pachtman and in his testimony. Pachtman noted leads some this information had been avail- prior able Imbler’s counsel apparently trial but 3 leaving A fourth man who saw Hasson’s killer the scene identi lineup, fied pretrial police Imbler in a but were unable to find him at the time of trial. 4 10-year prison Imbler also received a term on the charge. assault supra. See n.

413 developed, not been that Costello had testified had convincingly cross-examination, and withstood intense of the new evidence conclusive of and that none was explained Imbler’s innocence. He that he wrote a attorney duty belief that “a has to be fair prosecuting a see helpful and that all true whether to the or facts, case should be presented.” not, corpus petition shortly Imbler filed a state habeas after Supreme Pachtman’s letter. The Court of California one of appointed justices its retired as referee to hold hearing, which a Costello was the main attraction. recanted He his trial identification of it and Imbler, also was established that on cross-examination and re- direct he had painted picture background a of his own that was more trüe. flattering than Imbler’s corroborat- ing uncovered inves- witnesses, Pachtman’s also testified. tigations,

In his Supreme brief to the Court of California on this habeas Imbler’s petition, counsel described Pacht- post-trial highest man’s detective work as “[i]n tradition of law enforcement and as justice,” and premier example duty.” of “devotion to But he also charged that the prosecution knowingly had used false testimony suppressed material evidence at Imbler’s In thorough opinion by trial.7 then Traynor, Justice Supreme unanimously Court of California rejected Imbler, these contentions and denied the writ. In re Respondent, A, Brief for App. p. 6. The record does not indicate specific response what action was taken to Pachtman’s letter. We August 17, 1962, do note that the letter dated Imbler’s was execution, 12, 1962, subsequently stayed. September scheduled for was part permanent The letter became a record in the case avail subsequent litigation. the courts in all able to Respondent Brief for 5. Brady Napue Illinois, (1959); generally See S.U. Maryland, 373 U. S. 83 *5 60 Cal. 2d 554, P. 2d 6 The California court noted that the hearing fully supported record referee’s finding that Costello’s of his recantation identifi- cation lacked credibility compared original to the identifi- cation id., itself, at 387 P. at 2d, 562, 10-11, that the new corroborating appeared witnesses who on Imbler’s behalf were unsure their stories or were otherwise at impeached, id., 569-570, P. 14. 2d, In 1964, year after denial of his pe- state habeas tition, Imbler succeeded in having his death sentence overturned grounds unrelated to this case. In re Imbler, 61 Cal. 2d 2d 687 (1964). P. Rather than resentence him, the stipulated State to life imprison- ment. There the matter lay for several years, until late 1967 early or 1968 Imbler filed a habeas corpus peti- tion in Federal District Court based on the same conten- tions previously urged upon rejected by the Supreme Court of California.

The District Court held no hearing. it Instead, de- cided petition upon the including Pacht- record, man’s letter to the Governor and the transcript of the referee’s hearing ordered Supreme Court California. Reading that record quite differently than had justices the seven of the State Supreme Court, District Court found eight instances of state misconduct at Imbler’s trial, the cumulative effect of which required issuance of the writ. Craven, Imbler v. Supp. F. (CD Cal. 1969). Six occurred during Costello’s testimony and amounted in the court’s view culpa- ble use by prosecution of misleading or false testi- mony.8 The other two instances suppressions were 8 The District Court found that given Costello had certain am biguous or misleading testimony, and had flatly lied about his criminal record, education, his and his current income. As to the misleading testimony, the court found that either Pachtman or a

evidence favorable to by Imbler police fingerprint ex pert who testified at trial and the police who investi gated Hasson’s murder.9 The District Court ordered that the writ of habeas corpus issue unless re California tried Imbler within 60 days, and denied a petition for rehearing.

The State appealed to the Court Appeals for the Ninth Circuit, claiming that the District Court had failed give appropriate deference to the factual determina- tions of the Supreme Court of required California as 28 U. S. §C. 2254 (d). The Appeals Court of affirmed, finding that the District Court merely had “reached different conclusions than the state court in applying federal constitutional standards to facts,” Imbler [the] California, 424 F. 2d and 631, 632, certiorari was denied, 400 U. S. 865 (1970). California chose not to retry Imbler, and he was released.

At this point, after a decade of litigation and with free, Imbler now the stage was set for the present suit. In April 1972, Imbler filed a civil rights action, under 42 U. S. C. § 1983 and related statutes, against respond- ent Pachtman, the police fingerprint expert, and various other officers of the Los Angeles police alleged force. He police present officer in the courtroom knew misleading. it was As testimony, the false the District Court concluded that Pachtman had “cause to suspect” falsity its although, apparently, no actual knowledge thereof. See Supp., 298 F. at 799-807. The Supreme Court earlier California had rejected addressed and allegations many based on parts same testimony. Costello's It found either an absence of falsehood or an prosecutorial absence of knowl edge in each instance. In Imbler, re See 554, 562-565, 2d Cal. and n. 6, 10-12, P. 2d and n. 3 9 See 298 F. Supp., at Supreme 809-811. The Court of California rejected earlier had allegations. similar Imbler, In supra, re See 566-568, 2d, 387 P. at 12-13. conspiracy among unlawfully that a charge them convict him liberty had caused him loss of and other grievous injury. He $2.7 demanded million in actual exemplary damages defendant, plus from each $15,- 000 attorney’s fees.

Imbler attempted to incorporate complaint into his the District Court’s decision granting the writ of habeas corpus, and for the most part tracked opinion that court’s in setting out the overt acts furtherance of alleged *7 conspiracy. gravamen complaint of his Pachtman was that he had “with intent, and other on occasions with negligence” allowed Costello give false testimony as found the District Court, and that fingerprint expert’s suppression of evidence “charge- was able under federal law” to Pachtman. In addition Imbler claimed that prosecuted Pachtman had him with knowledge of a lie detector test that had “cleared” Imbler, that and Pachtman had used at trial police artist’s sketch of Hasson’s killer shortly made after the crime and allegedly altered to resemble Imbler closely more after the investigation had focused upon him.

Pachtman moved under Fed. Rule Civ. Proc. 12 (b)(6) to have the complaint dismissed as to him. The District Court, noting public that prosecutors repeatedly had been held immune from liability civil for “acts done part as their traditional official functions,” found that Pacht- alleged man’s acts fell into that category and granted his motion. Following entry judgment final as to Pachtman under Fed. Rule Civ. Proc. 54 (b), ap- Imbler pealed to the Court of Appeals for the Ninth Circuit. That one court, judge dissenting, affirmed the District Court in an opinion finding Pachtman’s alleged acts to have been committed “during prosecutorial activities only which can be characterized as an ‘integral part of ” judicial process,’ 500 F. 2d, at 1302, quoting

Marlowe Coakley, (CA9 2d 1968). F. We granted certiorari important consider the and recur- ring issue of prosecutorial liability Rights under the Civil Act of 1871. 420 (1975). U. S. 945

II Title U. C. 1983 provides S. “[e]very person” that who acts under color of state law to deprive another of a constitutional right shall person be answerable to that a suit for damages.10 The statute species thus creates a of tort liability that its face admits of no immunities, some argued have it applied should be as strin- gently it as reads.11 But has prevailed. view not

This Court first considered the implications of the statute’s literal sweep in Tenney Brandhove, 341 U. S. There it was claimed that members of a state legislative committee had plaintiff called the appear before not proper for a them, legislative purpose, but to him intimidate into silence on certain matters public concern, thereby deprived had him of his con stitutional rights. Because legislators in both England and this country had enjoyed absolute *8 their official actions, Tenney squarely presented the issue of whether the Reconstruction Congress had intended 10Title 42 1983, U. originally S. C. passed § as of the Civil § Rights 1871, 17 Act of 13, Stat. reads in full: “Every person who, under any statute, of ordinance, color regula- tion, custom, usage, any or of or Territory, subjects, State or causes subjected, any to be citizen of the United or person States other jurisdiction within the thereof deprivation to the rights, of any privileges, or immunities secured the Constitution and laws, shall party injured be liable to the law, in an action at in equity, suit proper or other proceeding for redress.” 11See, g., Ray, e. Pierson v. U. (1967) S. J., (Douglas, dissenting); Tenney Brandhove, U. (1951) S. 382-383 J., (Douglas, dissenting). the availability restrict 1983 suits of § those immuni- ties public policy, which and for reasons of historically, had been categories accorded various of officials. Court concluded that immunities “well his- grounded in tory and reason” had not abrogated “by been covert inclusion in the general language” of 1983. 341 S., U. at 376. of Regardless any unworthy purpose animating their actions, legislators were held to enjoy under this statute their immunity usual when “in field acting legislators where power Id., traditionally have to act.” at 379.

The decision in Tenney established that is to § 1983 be read in harmony with general principles of tort im- munities and defenses rather than in derogation of them. Before today the Court has had occasion to consider the liability of types several of government officials in addi- tion to legislators. The common-law immunity absolute of judges for “acts within judicial juris- committed their diction,” Bradley Fisher, see 13 Wall. 335 was (1872), found to be preserved under § 1983 in Ray, Pierson v. 386 U. S. 547, (1967).12 554-555 In the case, same local police officers sued a deprivation liberty resulting from unlawful arrest were held to enjoy under § 1983 a “good faith and probable cause” co- defense extensive with their defense false arrest actions at

12 The Court described immunity judges as follows: “Few doctrines solidly were more established at common law than judges liability damages for acts com judicial mitted within their jurisdiction, as recognized this Court when adopted it Bradley doctrine, Fisher, 13 Wall. 335 This applies when judge even is accused acting maliciously and corruptly, and it ‘is not for protection or benefit of a or malicious corrupt judge, but for the benefit of public, whose interest it is judges liberty be should *9 to exercise their functions independence with and without fear of ” consequences.’ S., (citation 386 U. at omitted). 553-554

common law. 386 S., U. at 555-557. We found qualified immunities appropriate in two recent In cases.13 Scheuer Rhodes, v. 416 U. S. (1974), we concluded that Governor and other executive officials of a State had a qualified immunity that varied with “the scope of dis cretion and responsibilities of the and office all the cir they cumstances as reasonably appeared at the time of . Id., action. .”. at 247.14 Last Term in Wood v. Strickland, 420 U. S. 308 we held (1975), that school in officials, the context of imposing penal disciplinary ties, were not liable so long as they could not reason ably have known that their action violated students’ clearly established constitutional rights, provided they did act not with malicious intention to cause constitu tional or injury. Id., other at 322; cf. O'Connor Don v. aldson, 422 S. 563, U. 577 (1975). In Scheuer and in Wood, as in the two earlier cases, the considerations underlying nature of immunity respective officials in suits at common law led to essentially the same immunity under § 1983.15 See 420 U. S., at 318- 321; 416 U. atS., 4. 239-247, n. procedural difference between the absolute quali and the

fied immunities important. An absolute immunity defeats a suit at the outset, long so as the official’s actions were within scope immunity. The fate of an qualified official with depends upon the circumstances and motivations actions, of his as established the evidence at See Scheuer trial. Rhodes, U. S. (1974); 238-239 Wood Strickland, U. S. 320-322 14The elements of this were Scheuer as described follows: “It is the existence of grounds reasonable for the belief formed the time and light circumstances, all the coupled good with belief, faith qualified affords a basis for immunity of executive officers for performed acts in the course of official conduct.” S.,U. at 247-248. Tenney Brandhove, In of course, the Court looked to the *10 420

I II This opportunity case marks our first address liability of § 1983 a state officer. The Courts prosecuting many have confronted the issue however, Appeals, times and under circumstances. varying Although precise contours of their have been unclear at holdings times, they virtually at bottom are unanimous that a prosecutor enjoys immunity absolute from 1983 suits when damages scope he acts within the of his prose cutorial duties.16 These courts sometimes have de prosecutor’s scribed the immunity as a form of “quasi- judicial” immunity and referred to it as derivative of the immunity of judges Ray, in Pierson recognized v. supra.17 Petitioner upon focuses the “quasi-judicial” and contends that it illustrates a funda characterization, mental illogic in according immunity absolute prose to a cutor. He argues that the prosecutor, ás a member of the executive cannot claim the branch, re served for the judiciary, only but qualified immunity legislators by accorded Constitutions, the Federal and State as well developed as that S., the common law. 341 U. at 372- McMillan, Doe generally 375. See (1973). v. 412 U. S. 306 16 Sheeky, Fanale 866, (CA2 v. 1967); 385 2d Bauers v. F. 868 Heisel, (CA3 1966), 361 F. 2d denied, 581 cert. (1967); 386 U. 1021 S. Gibson, Carmack 1966); Tyler 862, (CA5 v. 363 F. 2d 864 Wit v. kowski, 449, (CA7 511 F. 2d Dorsey, Barnes v. 1975); 450-451 480 1057, (CA8 1973); Stoner, Kostal v. F. 1060 2d 492, 292 F. 2d 493 (CA10 1961), denied, cert. 369 (1962); U. S. 868 Guerro Mulh cf. v. earn, 1249, (CA1 498 F. Ebert, 1974); 2d 1255-1256 Weathers v. (CA4 1974). 505 F. 2d 515-516 compare But Hurlburt v. Graham, (CA6 1963), Williams, 323 F. 2d with Hilliard v. (CA6), denied, F. 2d 1212 (1972). cert. 409 U. IV, S. See Part infra. Tyler g., E. Witkowski, supra, Stoner, 450; Kostal at supra, 493; Hampton City Chicago, 484 F. 2d (CA7 1973), denied, 20, infra. cert. U. S. 917 See n.

akin to that accorded other executive officials this previous Court’s cases.

Petitioner an overly takes simplistic approach to the issue of prosecutorial liability. As noted our above, earlier decisions on § 1983 immunities were products not judicial fiat that officials in different branches of gov- *11 ernment are differently amenable to suit under § 1983. Rather, each predicated was upon a considered inquiry into the immunity historically accorded the relevant offi- cial at common law and the interests behind it. The liability of a state under § 1983 must be deter- mined in the same manner.

A The function of prosecutor a that most often invites a common-law tort action is his decision to prose a initiate as cution, this may lead to a suit for prosecution malicious if the State’s case misfires. The first American case to address the question of a prosecutor’s amenability to such an action was v. Slinkard, 146 Ind. 117, Griffith N. E. 1001 (1896).18 The complaint charged that a local prosecutor without probable cause added the plaintiff’s name to grand a jury true bill after the grand jurors had refused to indict him, with the result plaintiff was arrested and forced to appear in court repeatedly before the charge finally was nolle prossed. Despite al legations of malice, the Supreme Court of Indiana dis missed the action on the ground that the prosecutor was absolutely immune. Id., at 44 N. at 1002. E., 18The Supreme Court of Indiana in cited an earlier Griffith Massachusetts decision, apparently as authority for its own holding. case, But that Parker v. Huntington, 68 Mass. (1854), involved the elements of a malicious prosecution cause of action rather than the immunity prosecutor. aof See Note, also 73 U. Pa. L. Rev. The view on prosecutorial became Griffith majority clear rule on the issue.19 question The eventually to this came Court on writ of to the certiorari Court of Appeals the Second In Circuit. Yaselli v. Goff, 12 F. 2d (1926), the claim was that defendant, Special Assistant to the Attorney General of the United States, maliciously and probable without cause procured plaintiff’s grand jury indictment willful of false and introduction misleading evidence. sought Plaintiff some $300,000 damages for having trial, been subjected to the rigors of which the court ultimately directed a verdict the Govern- ment. District Court dismissed the complaint, and the Court Appeals affirmed. After reviewing the de- velopment of the doctrine of prosecutorial id., immunity, at 399-404, that court stated:

“In opinion our requires law us to that a hold *12 special assistant to the Attorney of the General United States, performance im- duties posed upon him by law, is immune from civil ac- a tion for prosecution malicious based on indict- an ment and prosecution, although it results in a verdict of not guilty rendered by jury. a immunity The is absolute, and grounded on principles public of policy.” Id., at 406.

After briefing and oral argument, this Court affirmed the Court of Appeals per in a curiam opinion. Yaselli v. Goff, 275 U. 503 (1927). S.

The immunity common-law prosecutor is based upon the same considerations that underlie the common- 19 Parman, Smith v. 115, 101 Kan. (1917); 165 P. 663 Semmes Collins, v. 265, 120 Miss. 82 Kelsch, Kittler v. (1919); So. 145 56 227, N. D. 216 Watts (1927); N. W. 898 Gerking, v. 111 Ore. (1924) (on 228 P. 135 Contra, Leong rehearing). Carden, Yau v. (1916). 23 Haw. 362

423 law immunities of judges grand jurors acting and within scope of their duties.20 concern These include by harassment litigation unfounded would cause a de- flection of the prosecutor’s energies public duties, from his possibility and the that he would shade his decisions in- exercising stead of independence judgment re- quired by public his expressed trust. One court both considerations as follows: public

“The office of prosecutor is one which must be administered with courage independence. and Yet how can this be if the prosecutor subject is made to suit those whom con- he accuses and fails to vict? To way allow this would unlim- open the ited harassment the most embarrassment conscientious officials those who would profit thereby. every There would be involved in case possible consequences of a failure to con- obtain a immunity judge The jurisdiction of a for acts within his has extending days Floyd roots to the earliest v. of the common law. See Barker, Eng. (1608). Rep. Coke Kent Chancellor history Lansing, (N. traced some of its v. Y. in Yates 5 Johns. 282 1810), judicial immunity accepted and this Court in Brad the rule of ley Fisher, (1872). 12, supra. See n. Wall. grand jurors, equally tenet, an almost see venerable common-law

Floyd See, Barker, supra, country. adopted this also has been g., Turpen Booth, Mathis, e. (1880); Hunter v. 40 Ind. 56 Cal. 65 to the Courts have extended the same prosecutor three offi have remarked on the fact that all sometimes discretionary juror, judge, grand cials— —exercise judgment *13 v. presented them. Smith Par basis of evidence man, supra; Gerking, supra. com Watts v. It the functional is parability judgments judge has resulted of their those “quasi- jurors grand being in referred to prosecutors both and as officers, being “quasi-judicial” judicial” termed and their immunities Gerking, See, Turpen Booth, supra, g., 69; e. as well. at Watts v. v. supra, 661, 228P., at 138.

424 possi- of question always be a There would

viction. move fit saw to prosecutor in case the civil action ble such of apprehension The . . . case. dismissal uneasiness great tend toward consequences would impartial and weakening the fearless toward and administration characterize policy which should would of the prosecutor The work of this office. away moved have and we would impeded thus be fairer law stricter and objective of the desired Reed, App. 277, 6 2d Cal. v. enforcement.” Pearson (1935). 44 P. 2d 597 592, 287, Goff, v. 12 at 404-406. 2d, also Yaselli See F.

B settled.21 immunity is thus well The common-law rule considera- the same must whether We now determine rule common-law underlie the public policy tions of 1983. § under likewise countenance absolute they We think do. immunity, prosecutor only qualified

If a had performance threat 1983 suits would undermine §of common-law no his duties less than would threat duty A prosecution. suits for malicious deciding in judgment bound to exercise his best both them in court. which suits to in bring conducting suffer if public prosecutor’s trust of office would by the every making he were decision constrained liability in a potential his consequences terms of own 21 1949), g., Gregoire Biddle, (CA2 See, cert. e. v. 177 F. 2d 579 Cooper O’Connor, App. D. C. denied, (1950); v. U. S. Rohrer, Supp. Anderson 100, 135, (1938); 3 F. 140-141 99 F. 2d Reed, 44 P. 2d (SD 1933); 2d Pearson App. Fla. 6 Cal. (1935). Manley, Anderson (1935); 43 P. 2d 39 Wash. comment, (1938); b generally of Torts See Restatement § 4.3, pp. Harper James, of Torts 305-306 1 F. & F. The Law *14 suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate. Bradley v. Fisher, Cf. Wall., 348; Pierson Ray, S.,U. at 554. Further, if the prosecutor could be made to answer in court each time such a person charged him with his wrongdoing, energy and attention would be diverted from the pressing duty of enforcing the criminal law.

Moreover, suits that survived the pleadings pose would substantial danger of liability even to the honest prosecu- tor. prosecutor’s possible knowledge of a witness’ falsehoods, the materiality of evidence not revealed to defense, propriety of a closing and— argument, ultimately in every case—the likelihood that prosecu- torial misconduct so infected a trial as to deny due process, typical are of issues with which judges struggle in actions for post-trial relief, sometimes to differing conclusions.22 The presentation of such issues in a § 1983 action often would require a virtual retrial the criminal offense in a new forum, and the resolu- tion of some technical issues by the lay jury. It fair to we say, think, the honest prosecutor would greater face difficulty in meeting the standards quali- fied immunity than other or executive administrative officials. Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of deprivation. constitutional Defending these decisions, often years after they were made, could impose unique 22 This is illustrated history of the disagreement as to the culpability prosecutor’s conduct in this express case. We opinion no as to which of the courts was correct. See nn. 8 and supra. responsible burdens upon and intolerable *15 for Cf. annually hundreds of indictments and trials. Bradley Fisher, at 349. supra, only immunity to the affording qualified

The of a prosecutor upon also could have an adverse effect the functioning of the justice system. Attaining criminal system’s goal accurately determining guilt the of or inno- requires cence that both the the defense prosecution and have wide discretion in the conduct of the the trial and presentation of in veracity evidence.23 The of witnesses is frequently subject criminal cases to doubt before and they by history after as is the of this testify, illustrated prosecutors If in hampered exercising case. were their by judgment as the use of such witnesses concern personal resulting about the triers of fact in liability, cases often criminal would be denied relevant evidence.24 defamation, In airing the law of a concern for the of all evidence any privilege resulted in an has absolute courtroom statement subject proceeding. relevant to the matter of the In of the case lawyers privilege pleadings the extends to their briefs as well. and generally Cooley, (4th 1932); See 1 T. Law of Torts ed. F. § supra, James, case of Hoar Harper leading & F. 5.22. In the Wood, (1841), expressed policy Chief Justice Shaw Mass. decision as follows:

“Subject whole, relevancy], is, to this restriction it on the [of interest, public purposes and best calculated to subserve justice, conducting the speech, to allow counsel full freedom in constituents; advocating sustaining rights, their causes impaired by ought and this freedom of discussion not to be numerous Id., and refined distinctions.” at 197-198. decide, prosecutor especially A often must in cases of wide sharp interest, proceed there is a public whether to to trial where in appropriate in course of action such the evidence. conflict Yet, may permit jury be to to resolve a case well conflict. understandably go forward with would be reluctant acquittal likely trigger a suit where an would a close case Project damages. Association on Stand- him for Cf. American Bar The ultimate fairness of operation system itself could be weakened subjecting prosecutors liability. § 1983 post-trial procedures Various are avail- able to determine whether an accused has received a fair trial. These procedures include the powers remedial the trial judge, appellate review, and state and federal post-conviction collateral In remedies. all of these the attention of the reviewing judge or tribunal focused primarily on whether there was a fair trial under law. This focus should not be blurred even the subconscious knowledge post-trial that a decision favor of the ac- cused might result in prosecutor’s being upon to called respond damages for his error or mistaken judgment.25

We conclude that *16 the considerations outlined above dictate the same absolute immunity under § 1983 that prosecutor the enjoys at common law. To be this sure, immunity does leave the genuinely wronged defendant without civil redress prosecutor whose mali- cious or dishonest action deprives him of liberty. But the alternative of qualifying prosecutor’s would disserve the public broader interest. It would prevent vigorous the performance fearless of the prosecutor’s duty that is essential to the function- proper ards Justice, for Criminal Prosecution Defense Function §3.9 (c) (Approved 1971). Draft possibility personal liability of dampen also could the prosecutor’s exercise duty bring of his to the attention of the proper court or of officials all significant suggestive evidence of inno mitigation. cence or duty At require trial this is enforced process, ments of due but after a conviction the also is bound ethics of his office to authority inform the appropriate after-acquired of or other upon information casts doubt that correctness of the conviction. ABA Respon Cf. Code of Professional sibility (1969); ABA, 7-13 Standards, supra, Indeed, §EC §3.11. suggests record this case respondent’s recognition in of this duty led post-conviction to the hearing which in resulted turn ulti mately in granting the District Court’s corpus. of the writ of habeas ing justice system.26 Moreover, criminal it often prejudice by skewing would defendants criminal cases post-conviction judicial decisions be made that should with the sole purpose insuring justice. the issue With framed, thus we find in agreement Judge ourselves with Hand, Learned who prosecutor’s immunity wrote from actions for prosecution: malicious

“As is so often the case, the answer must be found in a balance between the evils inevitable in either In alternative. this thought instance it has been the end better to leave wrongs unredressed the done by dishonest officers subject try than to those who do duty their to the constant dread of retaliation.” Gregoire Biddle, (CA2 F. 2d 1949), cert. 339 U. 949 (1950). S. denied, Goff, See Yaselli at 404; cf. Wood Strick- 2d, F. land, S.,U. at 320.27 emphasize

We prosecutors 26In addressing consequences subjecting judges to suits damages 1983, the under Court has commented: “Imposing such a judges burden on prin- would contribute not cipled and fearless decision-making but to Pierson v. intimidation.” Ray, S., 386 U. at 554. 27Petitioner contends allowed, that his suit should be even if be, others would not because the District Court’s issuance of the *17 corpus writ of habeas shows that his suit has substance. decline We to carve out exception prosecutorial immunity. such an to Peti habeas, question tioner’s success alleged on where the was the mis by agents, necessarily conduct several state does not establish the rights merit of his only respondent’s alleged civil action where wrongdoing Certainly is at nothing issue. determined on habeas (cid:127) respondent, party. Moreover, using would bind who was not a proceeding subsequent “door-opener” habeas as a civil rights injecting action would create the risk of concerns extraneous proceeding. text, into that As we noted in the consideration of the petition potential habeas could well be colored an awareness of prosecutorial liability.

liability in suits under 1983 does not § leave the public powerless to punish misconduct or to deter that which occurs. This suggested Court has never that policy considerations which civil compel immunity for certain governmental beyond officials place also them the reach of the criminal judges, law. Even cloaked with absolute civil immunity for centuries, punished could be crim inally for willful deprivations rights of constitutional on the strength of 18 U. 242,28 § S. C. criminal analog of § 1983. Littleton, O’Shea 488, 414 U. 503 (1974) ; S. cf. Gravel States, United U. S.

The prosecutor would fare no better for his willful acts.29 Moreover, a prosecutor perhaps unique, stands among officials whose deprive acts could persons of constitutional rights, in his amenability professional discipline by an association of peers.30 his These checks undermine the argument imposition liability of civil only way to insure prosecutors are of mindful the con rights stitutional persons of accused of crime.

28 “Whoever, any law, statute, ordinance, regulation, under color of custom, or willfully subjects any any State, Territory, of inhabitant or any District to rights, the deprivation privileges, of or immunities protected by secured or the Constitution or laws of the United States, or to punishments, pains, penalties, different or account of alien, color, race, such inhabitant being an or reason his or than prescribed citizens, are punishment for the shall be fined not $1,000 more than imprisoned year, both; or not more than one or and if subject imprisonment any death results shall be term years or for life.” appears provide punishment California also for criminal respondent by who commits some of the acts ascribed to petitioner. (1970); Branch, Cal. In re Penal Code 127 70 Cal. cf. § 200, 210-211, 174, 181 (1969). 2d 449 P. 2d 30 ABA Responsibility See Code of Professional EC See 7-13. ABA, generally Standards, supra, (c), (e), n. 1.1 and Commen §§ tary, pp. 44-45. *18 430

IV holding. boundaries of our to delineate the It remains empha- Appeals the of supra, As at Court 416, noted, was respondent’s activities challenged of sized that each 2d, at part judicial process.” of the 600 F. “integral an upon Appeals’ Court of focus purpose 1302. The the of re- nature of the activities rather than the functional spondent’s standing to and leave distinguish status was in in which hold those its Circuit and some others, cases, in investigative a certain activi- engaged that enjoys, ties not the absolute with associated judicial process, com- only good-faith but defense Ray, parable policeman’s.31 Pierson to See v. Appeals with Court of agree at 557. We S.,U. respondent’s intimately activities were associated judicial phase with thus process, the criminal were to which the reasons absolute immu- functions nity apply with full no force.32 We have occasion consider or require whether like similar reasons aspects prosecutor’s responsibility those investigative cast him in the role of an administrator or Mulhearn, Hampton City Guerro v. 2d, 1256; v. 498 F. at Chicago, Ronan, 2d, 608-609; Robichaud v. F. 351 F. 2d Purdy, (CA9 1965); 1969); cf. Madison (CA5 410 F. 2d 99 Brautigam, Lewis (CA5 1955). But cf. Cambist 227 F. 2d 124 Films, Duggan, (CA3 1973). Inc. 2d 475 F. complaint argument Both his in District Court in his us, petitioner respondent’s “police- characterizes some of actions as investigative. Specifically, request by points related” or he to a they respondent police during hold a courtroom recess that charge questioning pending off bad-check until Costello about testimony. completed after had his Petitioner asserts that Costello request investigative activity direction this was an because it was a its engaged investigation of crime. Seen in police officers request however, an proper light, respondent’s of the officers was testimony, presentation his witness’ a task to control effort fairly within his function as an advocate.

officer than rather that of advocate.33 We hold only that a initiating prosecution and presenting the State’s prosecutor case, the is immune from a civil suit for dam- ages under § 1983.34 The judgment of the Ap- Court of peals for the Ninth Circuit is accordingly

Affirmed. 33We recognize that the duties of prosecutor the in his role as advocate for the State involve actions preliminary to the initiation of prosecution a and apart actions from the prose courtroom. A cuting attorney required is constantly, in the duty of his course as such, to make decisions on a wide variety of sensitive issues. These questions include of present whether to a grand ease to jury, a whether to file an information, whether and prosecute, when to whether to dismiss an indictment against particular defendants, which witnesses call, and what other evidence present. Preparation, both the initiation of the process criminal trial, and may require for a the obtaining, reviewing, and evaluating of evidence. point, At some and with respect to decisions, some the prosecutor no doubt func tions as an administrator rather than an as of officer the court. Drawing proper a line between these may present functions difficult questions, but this require does case not anticipate us to them. 34Mr. White, Justice concurring in judgment, the would distin guish between by willful prosecutor use a perjured testimony of suppression willful prosecutor of exculpatory information. In the former Mr. case, Justice agrees White absolute that is appropriate. thinks, He however, only qualified is appropriate where information relevant to the defense is “unconsti tutionally withheld . .. Post, the court.” at 443. do not accept We urged by distinction Mr. Justice White several reasons. As a principle, matter of perceive we no less ,n infringement of a rights by defendant’s knowing per- use of ured testimony than {or deliberate withholding exculpatory of [information. The conduct in either reprehensible, case warranting prosecution criminal as well as supra, disbarment. See at 429 nn. 29 Moreover, 30. susceptible is not practical ap- distinction of plication. A using claim perjured-testimony simply may be re- framed and asserted a claim suppression as upon the evidence which the knowledge perjury rested. types That the two of claims can thus be viewed is clear from our discussing cases the constitu- prohibitions tional practices. Mooney both Holohan, Mr. Justice took no in the consideration part Stevens or of this decision case. Bren-

Mr. Justice with Justice White, whom Mr. nan and Mr. Justice Marshall in the concurring join, judgment.

I concur in judgment of the Court and in much of I reasoning. agree its grava- with the Court complaint men of the in this case is that *20 knowingly perjured used prosecutor and that a testimony; absolutely is money damages immune from suit for under 42 presentation testimony U. C. § S. of de- later termined to have been of false, presentation where the unjconstitutional such testimony 'alleged to have been solely because the prosecutor did not it should believe or ’ not I have believed it be write, however, true. be- I cause opinion may believe that the Court’s be read as 103, (1935); U. Texas, 28, S. (1957) ; Alcorta v. 355 U. S. 31-32 Brady Maryland, 83, (1963); Pate, 373 U. S. Miller v. 1, Giglio (1967); States, U. S. 4 — 6 150, v. United 405 U. S. 151-155 (1972). by history It is also illustrated the of this case: at least (cid:127) charges prosecutorial by one of the of misconduct the discussed Federal suppression District Court in terms of of evidence had been Supreme discussed the Court of in California terms of use of perjured testimony. Compare Craven, Imbler Supp., 298 F. at 809-811, Imbler, 2d, 566-567, 2d, In re with 60 Cal. at 12- 387 P. at Denying immunity suppression 13. absolute claims could thus eviscerate, many situations, in immunity the absolute from claims of using testimony. perjured suggestion, post, We further think Mr. Justice White’s 440 n. at

5, immunity only prosecu that absolute should be accorded when the tor makes casting upon a “full disclosure” of all facts doubt testimony, place upon prosecutor duty exceeding State’s would Brady requirements S., progeny, the disclosure of and its see 373 U. Illinois, Donnelly 87; 786, (1972); Moore v. 408 U. S. cf. DeChristoforo, 416 U. S. 647-648 It also would weaken adversary system seriously at the same time it interfered with prosecutorial legitimate exercise of discretion.

extending to a an broader than that to which he was entitled law; at common broader than is necessary this case; to decide and broader is neces- than sary I protect judicial process. seriously, Most disagree any with implication that absolute prosecutors extends to suits based on of uncon- claims suppression stitutional I evidence because believe such injure a rule would threaten to judicial process and to Congress’ interfere with in purpose enacting 42 U. C.S. any statutory without in support language § or history.

I Title 42 provides: U. S. C.

“Every person any statute, color who, under any or ordinance, regulation, custom, usage, State any or Territory, subjects, subjected, or causes to be citizen of the United or person States other within jurisdiction deprivation any thereof to the rights, or immunities secured the Con- privileges, . . shall to the party injured stitution . be liable an suit law, equity, proper action at or other *21 proceeding for redress.” As itself makes language purpose central clear, parties deprived to to “give remedy § 1983 is privileges immunities an rights, constitutional and Monroe 365 position.” Pape, of his abuse v. official’s (1961) added). 172 United 167, (emphasis U. S. places substan- among things, States Constitution other upon action, tial state and the cause of action limitations fundamentally in 42 C. 1983 is one provided § U. S. law and power, possessed virtue of state “[m]isuse only wrongdoer is with possible because the clothed made Classic, United States v. 313 authority of state law.” (1941). It is then that all state manifest U. S. officials as a class absolutely cannot be immune from damage suits under § U. S. C. 1983 that to extend immunity absolute any group of officials is to state negate pro tanto the very remedy appears which it Con gress sought Rhodes, to create. Scheuer v. U. S. (1974). Thus, as there is no in 42 language U. S. C. 1983 extending any immunity § any state officials, the Court has not extended immunity absolute to such officials in the absence of the most convincing showing immunity necessary. Accordingly, we have declined to construe § 1983 to extend absolute damage suits variety to a of state officials, Wood Strickland, v. 420 U. S. 308 (1976) (school board mem bers) ; Scheuer Rhodes, v. supra (various executive officers, including the State’s chief officer) executive ; Pierson Ray, v. 386 U. 547 (1967) S. (policemen); and this the fact notwithstanding respect least with that, high executive officers, absolute from suit for damages would have applied at common law. Spal ding Vilas, 161 U. S. 483 (1896); Johnson, Alzua v. U. S. 106 Instead, we have construed the statute only to extend qualified immunity to these officials, they may be held liable for unconstitutional conduct ab “good sent faith.” Wood Strickland, supra, at 315. Any other result “deny would much promise Id., 1983.” § at 322. Nonetheless, are there certain ab solute immunities so firmly rooted in the common law and supported by such strong policy reasons that the Court has been unwilling to infer that Congress meant to abol ish them in enacting U. § S. C. 1983. Thus, we have held legislators state to be absolutely immune from liabil ity for damages under 1983 for their legislative acts, Tenney Brandhove, 341 U. 367 (1951),1 S. and state *22 emphasized immunity Court that lengthy had a history law, at common and written was into the United States Constitution

judges absolutely be from liability immune for their judicial acts, supra.2 Pierson Ray,

In immunity justifying absolute for certain officials, both at common law and under 42 U. S. courts C. invariably have rested proposition their decisions on the that such is immunity necessary to protect the decision- making process in which the official is engaged. Thus legislative immunity justified was ground that such was protect essential “freedom of and speech action in the legislature” from the dampening effects of Brandhove, threatened lawsuits. Tenney v. supra, at 372. absolute Similarly, immunity for judges justified was on the ground that no matter how high proof the standard of the burden of set, defending suits damage brought by disappointed litigants would “contribute not to principled and fearless decision-making but to intimidation.” Pierson v. supra, Ray, at 554. In Bradley Fisher, 13 Wall. 335, 347 (1872), the Court stated:

“For it general is a principle of the highest im- portance to the proper justice administration of judicial that a officer, in exercising the authority vested him, shall be free to upon act his own convictions, without apprehension personal con- sequences to himself. Liability to every answer to one who might feel himself aggrieved by the action of the judge, would be inconsistent with posses- sion of this freedom, destroy would inde- “Speech in the or Debate many Clause” into state constitutions S., as well. 341 U. at 372-373. 2 The Court concluded solidly “[f]ew doctrines were more established at common law than judges liability damages for acts committed judicial within juris their diction, as this recognized Court when it adopted the doctrine in Bradley Fisher, (1872).” 13 Wall. 335 S., 386 U. 553-554. *23 be pendence judiciary without which no can either respectable or useful. . . Goff, Yaselli also discussed in 2d

See cases F. (CA2 1926), summarily 399-401 275 U. aff’d, S. majority articulates consequences other adverse which result suits to be may permitting maintained from public against may expose officials. suits the offi- Such unjust to 425; cial an at such suits damage award, ante, expensive will be to prevails defend even if the official ante, will away take the official’s job, time his 425; liability and the of a for unconstitu- tional behavior might induce a federal court in a habeas corpus to proceeding deny a valid constitutional claim ante, at 427. How- protect order to prosecutor, ever, these consequences adverse present respect with are to suits against school policemen, teachers, and other executives, and have never before been thought sufficient to an absolutely immunize official no matter how out- his rageous conduct. these Indeed, present reasons are respect with against to suits all state officials3 must necessarily rejected by have been Congress as a basis for immunity absolute under 42 U. S. for its en- C. 3 Even the risk that decisions in habeas corpus proceedings will be skewed is applicable policemen; in the case of supplies and if it a sufficient immunity reason to extend prosecutors,- absolute to it should have been a sufficient reason to extend such policemen. Indeed, sa.y it is fair to corpus far more habeas petitions constitutionality turn by policemen of action taken than turn on the constitutionality prosecutors. action taken simply rely ability We on the judges correctly federal apply the law to the facts with knowledge overturning a conviction grounds on constitutional hardly dooms the official in question payment damage of a light qualified award in possesses, which he inapplicability and the of the res judicata doctrine, ante, at 428 n. 27.

actment is a clear indication that at least some officials should be accountable damages for their official acts. unless the Thus, threat of suit is also thought to injure the governmental decisionmaking process, the other un- fortunate consequences flowing from damage suits state officials are sufficient only to extend qualified *24 immunity to the official question. in Accordingly, question whether prosecutor a enjoys an absolute immu- nity damage suits under § 1983, only or qualified a immunity, depends upon whether the common law and reason support the proposition that extending absolute immunity is necessary protect to the judicial process.

II public The prosecutor’s absolute immunity from suit at common law is not so firmly entrenched as a judge’s, but it has support. considerable The general rule was, and is, that prosecutor a is absolutely immune from suit prosecution. malicious 1 F. Harper & F. James, The Law of Torts 4.3, p. 305 7n. (1956) (hereafter Harper & James), and cases cited; there Yaselli Goff, v. supra; Gregoire Biddle, v. 177 2d (CA2 F. 579 1949); Kauffman Moss, v. 420 F. 2d (CA3 1270 1970); Heisel, Bauers v. 361 F. (CA3 2d 581 1965); Tyler Witkowski, v. 511 F. 2d 449 (CA7 1975); Hampton City v. Chicago, 484 F. 602 2d (CA7 1973); Barnes Dorsey, v. 480 2dF. (CA8 1057 1973); Duba v. McIntyre, 501 F. (CA8 2d 590 1974) ; Robichaud v. Ronan, 351 F. 2d (CA9 1965). But see Leong Yau Carden, 23 Haw. 362 (1916). The rule, like rule extending absolute immunity to judges, rests proposition that absolute immunity is necessary “ protect to judicial process. Absent ‘it immunity, would be but human they [prosecutors] might re frain from presenting to grand a jury or prosecuting a matter which in their judgment called action; but ” otherwise.’ possibly determine jury might which a Yaselli quoting §4.3, pp. 305-306, James Harper & deciding in 1925). Indeed, (SDNY Goff, 161, 162 F. 2d performs prosecutor prosecute, or not to whether Ya 305; Harper & James function. “quasi-judicial” immunity had Goff, 12 404. Judicial 2d, F. at selli v. their respect with jurors always grand been extended to “ ‘the id., at returning indictment, an 403, actions prose particular whether public deciding prosecutor, same much the performs cution shall be instituted . . . ” Smith quoting jury.’ grand Id., function as a analogy Parman, 165 P. Kan. one; risk Moreover, the strong judicial is a permitting rule judicial process from a injury to the is real. prosecutors prosecution suits malicious for an erroneous There is one to sue the no prosecu If not suits for malicious prosecute. decision would al incentive permitted,4 prosecutor’s tion were *25 of the “fear ways bring charges. Moreover, not to be according acting suit, for being harassed a' vexatious “where always greater their would be to consciences” Hawkins, 1 Pleas powerful” involved, men are W. agree I with the (6th Accordingly, 1787). Crown 349 ed. that based on claims respect to suits majority that, with was malicious prosecute decision to prosecutor’s is no inde where there without cause —at least probable exculpa prosecutor withheld pendent allegation that the see Part grand jury court, from or the tory a information process is better served abso judicial III, infra —the by any rule. immunity than other lute merely majority not to it is sufficient agree with the 4 1 very high. prosecution case proof in a malicious standard of set the danger of done, might possible to eliminate the it be this were If However, against prosecutor. the risk unjust damage a an award if certain of ultimate vindication— having a suit —even to defend prosecution. to fearless would a substantial deterrent remain

439 prosecutors absolutely Public were also immune at common defamatory law from suits for remarks made during judicial to proceeding, Harper relevant a & James §§5.21, 5.22; Yaselli at 402- Goff, F. 2d, 403; and this immunity was also policy based protecting the judicial process. Im Veeder, Absolute munity in Defamation: Proceedings, Judicial 9 Col. L. Rev. special pub The was not to lic prosecutors lawyers but making extended to accused of defamatory false and statements, eliciting or of false and defamatory testimony witnesses; applied and it to suits witnesses for delivering themselves false and defamatory testimony. Harper pp. & James § 5.22, Skinner, cited; King and cases there Lofft 423-424. Eng. Rep. 529, (K. 1772) (per B. Lord Mans field) ; Goff, Yaselli 2d, F. at 403. The reasons for precisely this rule are also substantial. It is the function judicial procéeding determine where the truth lies. ability Garefully proce of courts, developed under dures, separate falsity, importance truth from and the accurately resolving disputes (and factual in criminal civil) cases are such in judicial pro those involved ceedings “given every encouragement should be to make a full disclosure of all within pertinent information their 1 Harper p. & 424. For knowledge.” James 5.22, this permitted testify means must be witness, he testimony without fear of sued if his is disbelieved. being it lawyer, permitted For a means that he must be to call if being witnesses without fear of sued the witness dis *26 lawyer it alleged believed and is that the knew or should testimony have known witness’ was Of that the false. course, encouraged testify witnesses. should not be to falsely lawyers nor encouraged to call witnesses who testify falsely. However, having if the risk of to defend damage against civil suit is added to the deterrent such a conduct already provided by per- criminal laws jury and subornation of the risk of self-censor- perjury, ship becomes too great. particularly This is because so it very is attorneys difficult if not to be impossible absolutely certain of the objective falsity truth or of the testimony they which present. A prosecutor faced with a decision whether or not to call a witness whom he believes, but whose he credibility knows will be in doubt testimony whose may be disbelieved jury, the should given be every incentive to submit witness’ that testimony to the crucible of judicial process the so the may factfinder consider it, after cross-examination, together with the other evidence case determine where the truth lies.

“Absolute privilege has been conceded on obvious grounds public policy to insure freedom of speech where it essential that freedom of speech should exist. It is essential to the justice ends of that all persons participating in judicial (to proceedings take typical class for illustration) enjoy should freedom speech in the discharge public of their duties or in pursuing their rights, without fear of conse- quences.” Veeder, supra, 9 Col. Rev., L. at 469. For the above-stated I agree reasons, with majority that history and policy support an absolute immunity prosecutors from suits solely based on claims5 that they knew or should have known that the testimony of a witness called prosecution was false; I and would not Congress attribute to an intention to remove such immunity in enacting 42 U. S. C. 1983. 5 For the III, reasons set forth infra, in Part absolute would apply not to independent claims has withheld tending facts falsity demonstrate of his witness’ testi

mony where alleged sufficiently facts are important justify finding of unconstitutional part prosecutor. conduct

441 in this case complaint gravamen Since that have known prosecutor knew or should that him untrue was testimony certain of a witness called allega- forth below—the other and since—for reasons set tions in fail to a cause of action complaint state I in this case. any judgment concur in the theory, other majority’s opinion implies an However, insofar as the suits for constitutional violations absolute decision prosecutor’s on the than those based other bringing information or his actions proceedings initiate I particularly Most disagree. or to the argument court, im- I the absolute any implication with disagree sup- charging suits unconstitutional munity extends to Brady Maryland, 373 U. S. 83 pression of evidence. v. (1963).

III law for immunity at common There was no absolute for immunity from suits prosecutors other than absolute sim- There were and defamation. prosecution malicious brought at common law ply no other causes action of- in their against for conduct committed prosecutors reported case example, for no capacity.6 is, ficial There sup- against suit common law Thus, exculpatory evidence. or nondisclosure of pression which accepted proposition, if even this Court had 6 was, Immunity for false arrest unlike public officials absolute, Harper 1 prosecution, not public officials for malicious sued prosecutors were 3.18; when & James 3.17 §§ v. immune. Schneider absolutely tort, they not held for that were result has Shepherd, A similar Mich. 158 N. 182 192 W. 42 under courts suits U. S. C. obtained in the lower § Robichaud v. initiating arrests. unconstitutional prosecutors Chicago, Hampton Ronan, F. 2d (CA9 1965); v. 351 F. 2d 533 (CA8 Turner, 2d Wilhelm (CA7 1973); v. 180-183 F. (WD Warren, Supp. 824 Wis. Balistrieri 1970) (dictum); 314 F. (Minn. 1973). Vavreck, Supp. Ames 1970). F. also See Rhodes, it not, (1974), has Scheuer 416 U. S. 232 Congress in 42 immunities incorporated U. S. C. 1983 all *28 existing law, prosecu- at common it would not follow that absolutely tors are from suit for all unconstitu- immune doing jobs. tional acts in course of their committed it that such abso- Secondly, is no means true blanket in immunity necessary helpful protecting lute or even judicial hardly stating that, need process. It should liability in for or ordinarily, damages unconstitutional very effect of illegal otherwise conduct has the desirable deterring such Indeed, precisely conduct. this was proposition upon spe- which 1983 was Absent enacted. II, cial such as in Part circumstances, those discussed supra, respect with attacking to actions the decision to prosecute bringing or the to the argument evidence or one court, expect judicial process would would be protected integrity indeed its de- enhanced — —and immunity prosecutors nial of to in unconsti- engage who tutional conduct.

The absolute prosecutors extended to designed defamation cases is them encourage bring to to information to the court which will resolve criminal justification. they is its single case. That Lest withhold questionable valuable but evidence or from mak- refrain ing questionable valuable but arguments, prosecutors are protected liability submitting before the court information later determined to have been false to their It knowledge.7 would stand this on its rule head, however, it apply to a suit based on a claim that making prosecutor absolutely reasons a immune from apply equal suits for defamation would with force to other suits solely upon prosecutor’s based designed conduct the courtroom bring arguments either facts or to the attention of the court. Thus, a would be immune from a suit based a claim deliberately that his was summation unconstitutional or that he hearsay elicited evidence in violation of the Confrontation Clause. the prosecutor unconstitutionally withheld information from the court. Immunity from suit upon based claim the prosecutor suppressed or withheld evi dence discourage would precisely the disclosure of evi sought dence to be encouraged by the rule granting prosecutors immunity from defamation suits. Denial of immunity for unconstitutional withholding of evidence would encourage such disclosure. A prosecutor seeking protect himself from liability for failure to disclose may evidence be induced to disclose more than is re quired. this will But, hardly injure judicial process.8 Indeed, it will help it. Accordingly, lower courts have held that unconstitutional suppression of exculpatory beyond evidence is the scope of “duties constituting an *29 integral part of judicial process” and have refused to extend absolute immunity to suits based on such claims. Hilliard Williams, v. 465 F. 2d 1212, 1218 (CA6), cert. denied, 409 U. S. 1029 (1972); Grams, v. 355 Haaf F. Supp. 542, (Minn. 1973); Peterson Stanczak, 48 F. (ND R. D. 1969). Ill. Contra, Barnes v. Dorsey, 480 F. (CA8 2d 1057 1973).

Equally important, unlike constitutional violations committed improper in- summations, courtroom — troduction of hearsay evidence in violation of the Con- frontation Clause, knowing presentation of false testi- mony truly are an “integral part of —which judicial process,” ante, at judicial process has no way to prevent or correct the constitutional violation of suppressing evidence. judicial The process bywill defini- tion be ignorant of the violation when it occurs; and it is may There be circumstances which ongoing investigations or even the life of an might informant jeopardized be by public dis closure of thought possibly information to be exculpatory. How ever, may these adequately situations be by dealt with in camera disclosure to the judge. trial These considerations do not militate disclosure, merely but affect the manner of disclosure. suspect reasonable to that most such violations never It surface. all the important, then, more to deter such violations permitting damage under U. C. actions S. § 1983 to be maintained in instances where do violations surface.

The stakes are In high. Williams, Hilliard supra, a woman was convicted of second-degree upon murder entirely circumstantial evidence. The most incriminat ing item of evidence was the jacket fact that the worn the defendant at the time of arrest —and cur some appeared to have bloodstains on them. The tains — defendant denied that the stains were but bloodstains was convicted and subsequently spent year in jail. Fortunately, in that the defendant case, later found out that an FBI report which the prosecutor had knowl —of edge the time of the trial and the existence which he instructed a state investigator not to mention during his after testimony concluded, testing, the stains — were not bloodstains. On retrial, the defendant was acquitted. She sued and the state inves tigator under U. S. §C. 1983 claiming FBI report was unconstitutionally withheld Brady under Maryland, 373 U. S. 83 (1963), and a damage obtained award against both after trial. prosecutor’s petition for certiorari is now pending this before Court. Hilliard v. Williams, 616 F. 2d (CA6 1975), pending, cert. *30 No. 75-272. The state investigator’s petition, in which he claimed that he only had followed the prosecutor’s orders, has been denied. Clark v. Hilliard, 423 S.U. It apparent is the injury to a defendant which can be caused an unconstitutional suppression of exculpatory evidence is substantial, particularly if the evidence is never uncovered. It virtually is impossible to identify any injury to judicial process resulting from a rule permitting suits for such unconstitutional

conduct, very and it is to easy identify an injury to the process resulting a rule which not permit does such suits. Where the reason rule extending absolute immunity to prosecutors disappears, truly it would be “monstrous deny recovery.” Gregoire Biddle, F. 2d, 581.

IV complaint in this case, while based fundamentally on the claim that prosecutor knew or have should known that his witness falsely had testified in certain respects, does contain allegations some that exculpatory evidence and evidence relating the witness’ credibility had suppressed. been Insofar as complaint is based oil allegations of suppression or failure to disclose, the prosecutor should not, the reasons forth set be above, absolutely immune. as the However, majority notes, suppression of fingerprint evidence and the alleged suppression of information relating to certain pretrial lineups is not alleged to been have known in fact simply is claimed that the suppression is —it legally chargeable to him. While this may be so as a matter of federal habeas corpus it law, is untrue damage civil action. The result of a lie-detector test claimed to have been suppressed allegedly was known to but it respondent, would have been inadmis- sible at Imbler’s trial and is thus not constitutionally required to be disclosed. The alteration of police artist’s composite sketch after Imbler was designated as the defendant not alleged to have been suppressed— fact appears not to have been suppressed. The opinion of the Supreme California Court on direct re- view of Imbler’s conviction states picture that “the was modified later, following suggestions of Costello and other witnesses,” and that court presumably had before it only the record. trial The other items allegedly sup- *31 pressed all to background only relate information about one eyewitnesses three to testify the State, part were large coneededly known to the defense may and thus accurately not be suppressed. described as The single alleged fact coneededly not known to the defense which might helpful have been to the defense was that the State’s witness had written some bad checks for small amounts and that criminal based charge one check was outstanding against him. However, the witness had an extensive criminal record which was known to but fully not used the defense. Thus, even taken as true, the failure to disclose the charges check is patently insufficient to support a . claim of un- constitutional suppression of evidence.9 The Court majority The points out knowing that perjured use of testi mony reprehensible is as as the suppression deliberate exculpa tory evidence. This is beside point. The permitting reason for suits prosecutors for suppressing evidence sup is not that pression is especially reprehensible only but that effect on the process of permitting such suits will be a beneficial one—more information will be disclosed to court; whereas one of the effects permitting suits for knowing perjured use of testimony will be detrimental the process prosecutors to may ques withhold — tionable but testimony valuable from the court. majority argues any that using perjured “claim of testimony simply may be reframed and asserted as a claim of suppression.” Our treatment allegations in this conclusively case refutes argument. relatively .the It easy to allege government falsely witness testified prosecutor that the did not believe the witness; and, if the prosecutor’s subjective belief is a sufficient basis liability, the case would almost certainly go have to to trial. If such suits were'permitted, this case go would have to trial. It is another matter entirely to allege specific objective facts known of sufficient importance justify a conclusion that he violated a duty constitutional to disclose. It is no coinci- petitioner dence failed to any make such allegations in this case. More to point quite apart from the relative diffi- —and culty of pleading a Brady violation of Maryland, 373 U. S. 83 *32 in the past,

has regard due having the fact that obligation the the government to disclose exculpatory is exception evidence an opera- the normal tion of adversary system an on justice, state imposed prosecutors a obligation constitutional to turn over such only evidence when the is of evidence far greater signifi- cance than that Illinois, involved here. See Moore v. 408 U. S. 786 Thus, only the vio- constitutional adequately lation alleged against the prosecutor is he that knew in his mind testimony presented by him was false; from a suit based on such a without violation, more, prosecutor the absolutely is For immune. this I reason, concur the judgment reached majority the in this case. (1963) rule permitting withholding suits on specific based facts —a

unlike prosecutor’s suits based on testimony the disbelief of a witness’ will have no detrimental process. being effect on the Risk of sued for suppression impel will prosecutor the to err if at on all the side of overdisclosure. Risk of sued being disbelieving a witness will impel prosecutor to err on the questionable side of withholding majority evidence. appear does respond not point. to this Any suggestion that the suppres- between distinction suits on based' sion helpful of facts to the defense suits based other kinds of constitutional violations cannot be judges understood district who apply would have to mystifying. rule The distinction is simple one. Finally, majority suggested states rule in this con- curring opinion place “would upon prosecutor duty exceeding requirements Brady disclosure progeny.” and its The rule suggested opinion in this no thing. does such The constitutional obligation of utterly unchanged. remains We would simply grant not him absolute committing suits for pre-existing violations of requirements, constitutional disclosure if he committed those violations in bad faith.