# Petition — Goodwin v. Briggs

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 437 U.S. 904

## Text

re | Suptome Cour Court, Ug
FILE fi |

| MAR 31 978

L mi

CHAEL RODAK, JR. CLERK
No, — . ¢- 1 40 1

it the Supreme Court of the United States

OcToBeR TERM, 1977

Guy GoopWIN, PETITIONER
v.
JOHN Briaas, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

WADE H. McCREE, J Pes
Solicitor General,
BARBARA ALLEN BABCOCE,
Assistant Attorney General,
ROBERT E. KOPP,
BARBARA L, HERWIG,
Attorneys,
Department-of J ustice,
Washington, D.C. 20530

INDEX

Page
CR BER c ccc cenqnensencandintinisiisnasdtineines 1
TTI sasistinshcisaiiienctnnspeniniciaimnigndinmminnitlitivabintesateilickens 1
I a crncorerensteitennencinainiocininiceniabiiieiblndiaian 2
> -eguitintnttionsisonnadimcnanmensitiinnndianindiine 2
Reasons for granting the writ._...........-....--.---.- 7
SR eiicitinitigiettiencienmeatetemnmnccintitibdiicsdsesildiineintdiions 20
IIE Bicticcncdanncagsincnsseecnenidinmiinnailiien 1A
SOI Citccemancnenncinquienaenttimbanritanmiitigs 114A
I peresenmnenigncnmenscitititenedestintes 119A
REE Bc cccncnncescnesnnmenesentcuswtanuntbsndiiten 120A
REED Bwececenceynacaagewequeseqguéananneciinvetiins 121A
CITATIONS
Cases:

Abney v. United States, 431 U.S. 651__-.-----_--_- 7, 18,19
Brawer v. Horowitz, 535 F. 2d 830__.......-...--..-. 19
Cawley v. Warren, 216 F. 2d 74_........-...------.- 9

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
I -ain Maj. op. at 17, 20.

41a

performing those duties associated with trial advo-
cacy, when he answered a question from the trial
judge—the majority finds that his answer to the ques-
tion was not, in the language of Imbler, an “integral
part of the judicial process.’’* The starting point for
the majority’s analysis is the statement in Imbler that
“We recognize that the duties of the prosecutor in his
role as advocate for the State involves actions prelim-
inary to the initiation of a prosecution and actions
apart from the courtroom.’’’ The Supreme Court goes
on to describe what these actions are, and concludes,
“At some point, and with respect to some decisions,
the prosecutor no doubt functions as an administrator
rather than as an officer of the court.’’*

The Court in Imbler thus differentiated between the
prosecutor functioning “as an administrator’’ and “as
an officer of tae court.” On the former the Court
reserved decision as to the immunity accorded; on the
latter, when the prosecutor is functioning “as an of-
ficer of the court,’’ the Supreme Court unequivocally
held the prosecutor has absolute immunity. On the
facts of Goodwin’s case, can the majority deny that
he was functioning “as an officer of the court”? Good-
win was in the courtroom before the U.S. District
Judge as lead counsel for the United States. Could

* Imbler, supra at 430.

* Jd. at 431 n, 33. (Emphasis added.)

® Ibid. (Emphasis added.)

® The Court’s holding was thus explicitly delineated : “We have
no occasion to consider whether like or similar reasons require
immunity for those aspects of the prosecutor’s responsibility that
cast him in the role of an administrator or investigative officer
rather than that of advocate. We hold that in initiating a prose-
cution and in presenting the State’s case, the prosecutor is immune
from a civil suit for damages under § 1983.

Imbler, supra at 430-31. (Emphasis added.)

42a

there be a more classic role “as an officer of the
court’’?

This points up the majority’s startling weakness:
There is not one word in Imbler, or in any of the
numerous other cases cited by the majority, which
describes an action similar to that of Goodwin here
as being outside the prosecutor’s (or witnesses’s)
absolute immunity. The only references in Imbler
and all the other cases cited talk of ‘‘investigative”
or “administrative” tasks inherent in the prosecu-
tor’s usual job as being outside absolute immunity.

My colleagues have apparently found no case which
cites, by way of holding or dicta, any action by a
prosecutor inside the courtroom as being outside his
role of prosecutor.”® Goodwin’s actions were not ”ac-

2° T cannot understand the majority’s interjection of the thought :
“Lest his stress on the advocacy function suggest that the Court
was contemplating a mechanical immunity test based solely upon
whether alleged prosecutorial misconduct occurred in court dur-
ing the course of a trial, Justice Powell added a few words of
elaboration in the margin.” Maj. op. at 16. The few words are the
Court’s footnote 33. If the reader here will go back to Maj. op. 16,
and read the Supreme Court’s language again, he will find that
every reference to prosecutorial activity which is deemed within
absolute immunity, is to activity outside the courtroom.

There is no reference to prosecutorial activity inside the court-
room which is deemed outside the advocate’s role and thus outside
absolute immunity. If Justice Powell, writing for the Court, had
wanted to make the point my colleagues try to make, surely he
would have given at least one example of prosecutorial activity
inside the courtroom which the Court considered might be outside
the advocate’s role and thus not entitled to absolute immunity, But
he did not because he had in mind no such theory, because he =
making the point, and this only, that the prosecutor’s advocacy
role properly embraced activity both inside and outside the court-
room; there was absolutely no inference that in his activity inside
the courtroom he could be characterized as “an administrator or
investigative officer.”

Thus, from note 33 alone of the Supreme Court’s opinion we

43a

tions preliminary to the initiation of a prosecu-
tion,” * nor were they “‘actions apart from the court-

might draw a conclusion directly contrary to that of the majority,
a conclusion fatal to its attempt to label Goodwin’s reply or testi-
mony as “an act of investigation” devoid of any character of either
advocacy or witness.

The majority's reading of note 33, that it implies that some ac-
tions of a prosecutor during judicial proceedings are nonetheless
outside absolute immunity, is further undercut by the Jmbler
Court’s disposition of the separate view that Justice White ad-
vanced, According to Justice White, absolute immunity was justi-
fied for charges of use by a prosecutor of perjured testimony but
not for charges of suppression by a prosecutor of exculpatory in-
formation. In specifically disagreeing with Justice White’s view,
the /mbler majority rejected this opportunity to acknowledge that
particular courtroom conduct by a prosecutor might be accorded
only qualified immunity, contending, inter alia, that, “the distinc-
tion is not susceptible of practical application.” Jmbler, supra at
431 n. 34. This rejection is the rejection of the theory relied on by
the majority (p. 28) that absolute immunity should be denied
prosecutor or witness where his conduct is such that its validity
cannot be tested under the adversary process of the courtroom.

11 Imbler, supra at 431 n. 33. The majority contends, to the
contrary, that at the time of the alleged perjury Goodwin and
the grand jury were not engaged in “the initiation of a prose-
cution,” ibid. According to the majority, the grand jury here
was not functioning in its “familiar guise as a deliberative body
deciding whether to return indictments for specific crimes on
the basis of evidence gathered and presented by a public prosecu-
tor.” Maj. op. at 26. If that was so, how does the majority begin
to explain the fact that on the same day as Goodwin's alleged
perjury, 13 July 1972, the grand jury returned indictments against
siz of the appellees, charging them “with a variety of crimes cen-
tering around an alleged conspiracy to unlawfully disrupt the
1972 Republican National Convention”? Maj. op. at 5. The more
logical inference to draw from the fact that Goodwin’s alleged
perjury took place on the same day as the return of the indictments
is that Goodwin at that time was engaged in “the initiation of a
prosecution.” |

257-916—78—_5

——

44a

room”; he was right in the middle of the court-
room and right in the middle of a grand jury
proceeding, the time-honored method for ‘‘initiating
a prosecution.” ** The grand jury is an arm of the
court. Goodwin was functioning ‘‘as an officer of the
court.” Goodwin’s ‘‘activities were intimately asso-
ciated with the judicial phase of the criminal process,
and thus were functions to which the reasons for
absolute immunity apply with full force.” ™*

To my mind Goodwin was a prosecutor functioning
‘fas an officer of the court,” and entitled to the
prosecutor’s absolute immunity under IJmbler v.
Pachtman. Yet it is undeniable that Goodwin was
sworn as a witness, for a brief moment took the
witness stand, and answered one question. My col-
leagues hold that after Goodwin took the oath as a
witness he was acting as an investigator—a strange
conclusion—and, after he took the oath as a witness
(in addition to his oaths as attorney and prosecutor)
he ceased to be ‘‘an officer of the court”—to my mind
an equally strange conclusion.

Both of these conclusions are necessary if the ma-
jority is to package Goodwin as an ‘‘investigator” or
‘‘administrator,” for it is only if he can be so labelled
that he can be deprived of the absolute immunity
of the prosecutor under Imbler and countless other
eases. That this is a strained and distorted result
should be apparent, as it is so obvious that if Good-
win was not functioning as a prosecutor in his role
“as an officer of the court,” then he was functioning
as a witness—and each is entitled to absolute
immunity.

12 Imbler, supra at 431 n. 33. :

13 Imbler, supra at 431, quoted in note 9, supra.

14 Imbler, supra at 430.

45a

It thus becomes necessary in these opinions to
treat both prosecutorial and witness immunity.” I
shall first turn to the absolute immunity of the pros-
ecutor as analyzed and affirmed by the Supreme
Court in Imbler v. Pachtman (1976), then to the
absolute immunity of the witness. To some extent the
discussion must interweave, for both are part of the
seamless web of immunity held for centuries to be
essential to the functioning of an effective judiciary.

I. Prosecutor1aL Immunity “As AN OFFICER OF THE
Court’? Wuose “Activities WERE INTIMATELY
ASSOCIATED WITH THE JUDICIAL PHASE OF THE
CRIMINAL PROCESS”

We are all agreed that Goodwin’s action was taken
within the scope of his duty; it is further the case, I
submit, that his action involved the exercise of signif-
icant discretion.” He is thus entitled to some sort of

**The majority opinion (pp. 28-29) explains the procedural
situation, Both prosecutorial and witness immunity were raised
and briefed below. See also Part III, infra.

© We are in accord in rejecting the rationale of the trial court,
that the action of responding to the court’s question was not within
the scone of his duty. Maj. op. at 7-9. However, the opinion for
the majority describes an alternative ground for the decision not
to confer absolute immunity in this case, namely, that Goodwin’s
answer to the judge’s question can be considered a nondiscretion-
ary action. See Maj. op. at 9-10, n. 6, Although it is unclear
whether my colleagues are adopting this contention as a basis for
their decision, it does call for some careful consideration, as it can,
under the case law, be taken as an alternative ground for their
holding.

Two of the traditional conditions for any immunity, qualified
or absolute, have been that the officer was acting within the scope
of his authority and that the action undertaken was of a discre-
tionary nature. After reversing the District Court’s conclusion
that Goodwin’s statement was outside the scope of his authority,

46a

immunity protection, qualified or absolute. “The pro-
cedural difference between the absolute and qualified

the majority turns in its note six to the question of whether the
statement was discretionary in nature. With respect to the con-
tinued relevance of this question, the majority states:

“Recent Supreme Court decisions have generally avoided the
“ministerial-discretionary language in favor of analysis focusing
directly on the need for differing levels of protection in connection
with different official functions, the performance of which has
given rise to damage claims. See, e.g., Jmbler v. Pachtman, 424
U.S. 409 (1976) ; Wood v. Strickland, 420 U.S. 308 (1975) ; and
Scheuer v. Rhodes, 416 U.S. 232 (1974).”

With this statement, I understand the majority to mean that
the question of whether an action is discretionary in nature 1s es-
sentially irrelevant to the immunity issue and that it will seek
to determine the applicability of /mb/er in this case regardless of
how the act is characterized. Having suggested that, the majority
nonetheless characterizes the action as nondiscretionary. A

“However, we note in passing that under a more traditional
approach, appellant’s act of answering a single inquiry from the
court, an inquiry which plainly called for a sunple affirmative or
negative response, might well have been classified as a ministerial,
rather than a discretionary, act, and thus accorded at best a quali-
fied immunity.” - wae

If the now errs in considering the “ministerial-discretion-
ary” distinction to be outdated, the statement above becomes of
critical importance because, as the majority notes, according to
this traditional distinction, a nondiscretionary action is entitled
to “at best a qualified immunity.” Heh ae

My disagreement with the majority’s argumentation is two-
fold: first, I believe that under the recent Supreme Court deci-
sions the question of whether an action is discretionary in nature
is still a material determination for purposes of immunity, and
second, I believe that on the basis of this record the statement
of Goodwin did involve the performance of a discretionary act.

1. As to the first point, I submit that the language of recent
decisions does not indicate an abandonment of the traditional
approach. On the contrary, for example, in both /mbler, supra
at 426, and Wood v. Strickland, 420 U.S. 308, 321 (1975), the
Court expressly speaks of the need to protect the exercise of
officials’ discretion in justifying the provision of immunity. And

47A

immunities is important. An absolute immunity
defeats the suit at the outset, so long as the official’s

in a recent case not cited by the majority, Doe v. McMillan, 412
U.S. 306 (1973), the Court evidenced by its holding and its anal-
ysis that the presence of discretion in the action undertaken is
still material to the provision of immunity.

The relevant question in Doe was whether the Public Printer
and the Superintendent of Documents were entitled to absolute
immunity as federal officials under Barr v. Matteo, 360 U.S. 564
(1959), for their part in printing and distributing a Congres-
sional report containing material which was said to invade the
privacy rights of various District of Columbia school children.
The Supreme Court looked first at the statutory duties of these
officials and found that they had acted within the scope of their
authority. See Doe, supra at 321-22. But the Court stated that
the inqury went beyond authorization, and, finding no discretion
on the part of the Printer and the Superintendent in deciding
whether to print or to distribute the report, Doe, supra at 323,
the Court held unavailable the absolute immunity for federal of-
ficialsof Barr v. Matteo.

In short, then, as far as the absolute immunity of Barr was
concerned, it was lost, simply enough, because the action under-
taken was “ministerial,” or involved the exercise of no discretion.
Having no independent immunity under Barr, the Printer and
the Superintendent were left with whatever immunity would
derive under the Speech or Debate Clause from the Congressmen
who directed their action. On remand, after further findings, the
Printer and the Superintendent were given absolute immunity
because the Congressmen, at whose direction they acted, would
have had absolute immunity had they themselves made copies of
the material and distributed them in like manner. Doe y. Me-
Millan, No. 75-2016 (D.C. Cir. 29 July 1977).

At noted, the majority opinion does not cite or discuss Doe
in relation to its proposition. The majority may believe that
it would be a “salutary” development to abandon the “discre-
tionary” distinction as a material element, but the Supreme
Court cases on the personal immunity of officials do‘not, I believe,
establish an abandonment of the traditional approach.

2. Having set out my own view that the “ministerial-discretion-
ary” distinction is still material to the official immunity doctrine,

48a

actions were within the scope of the immunity. The
fate of an official with qualified immunity depends
upon the circumstances and motivations of his actions,
as established by the evidence at trial.’’™

The decision whether qualified or absolute immunity
is appropriate involves a balancing of the interests
which would be benefited and impaired by application
of either of the two doctrines. The decisions of the
Supreme Court which have made this choice have
weighed the ineremental loss in litigant rights and
remedial relief against the enhancement of govern-
mental functioning resulting from the absolute as
opposed to the qualified immunity. As a result of this
balancing the Court has devised rules of absolute or

it remains to determine the nature of Goodwin’s action here. The
majority’s view is that his “act of answering a single inquiry from
the court, an inquiry which plainly called for a simple affirma-
tive or negative response” ought to be considered a “ministerial”
act, involving the exercise of no discretion. I would disagree:
Goodwin’s decision as to precisely how the question should be
answered did entail an element of judgment, thus making his
action discretionary for purposes of official immunity.

As outlined in note 32, infra, there may be a basis in the record
for a belief by Goodwin that the FBI agent was noé represented
by counsel, thus taking him out of the judge’s question as it was
phrased. Fairly taking into account the possibility of that belief,
there is clearly injected an element of judgment in the answer. Of
course, I am expressing no view of the reasonableness of this pos-
sible belief by Goodwin, but I am saying that with the real possi-
bility of this belief—which then allowed for a choice among an-
swers—that Goodwin’s testimony, like the usual testiniony, was
discretionary in nature. As an exercise of discretion, this action
within his authority is thus entitled to absolute immunity, for
this prosecutor was acting in his capacity as officer of the court,
and, indeed, as a witness.

** Imbler, supra at 419 n. 13.

49a

qualified immunity for various classes of officials, as
defined by function.”

Our role in applying these rules, where the Court
has devised them, is to make a proper characteriza-
tion of the function being performed by the official in
question. Our role, however, is not to engage in a par-
ticularistic rebalancing of all the relevant policies to
determine whether absolute or qualified immunity is
appropriate in this case. Our analysis instead is fune-
tional: was this action undertaken in the prosecutor’s
capacity as an officer of the court, or, put another way,
a government advocate in a courtroom setting? If this
prosecutor should be so characterized, then he is en-
titled to absolute immunity under Imbler v. Pacht-
man. In Imbler the Court itself balanced the compet-
ing policies and mandated absolute immunity for the
prosecutor in his role, very broadly conceived, as
courtroom advocate.

A. Imbler vy. Pachtman—Balancing of the Interests
Held to Require Absolute Immunity for the
Prosecutor.

In order to make a more informed application of
the Imbler rule, it may be helpful to set out the poli-
cies which underpin it. While our role, as noted, is not
to make a de novo balancing of these policies in this
case, an understanding and appreciation of the poli-
cies may contribute to a proper characterization of the
prosecutor’s protected role under Imbler. At the out-
set the Imbler Court recognized that § 1983, although
it creates a cause of action for deprivation of con-
stitutional rights, does not constitute a flat bar to

8 See, ¢.g., Wood v. Strickland, supra at 322 (school board
member acting in the “context of school discipline”—qualified
immunity); Jmbler v. Pachtman, supra at 431 (prosecutor as
advocate in the judicial process—absolute immunity).

50a

immunity doctrine,” and proceeded to consider the
other factors, which, under its balancing approach,
related to the choice of qualified or absolute immunity.

Recognizing the prosecutor’s absolute immunity at
common law from actions for malicious prosecution,
the Court found equally applicable to actions under
§ 1983 the several rationales for this common law
immunity.” Most importantly these included the ‘‘con-
cern that harassment by unfounded litigation would
cause a deflection of the prosecutor’s energies from
his public duties, and the possibility that he would
shade his decisions instead of exercising the independ-
ence of judgment required by his public trust.’’”
The Court noted that these twin hazards of diversion
of energies and biasing of decision-making are, for
several reasons, especially acute in the case of a pros-
ecutor. Acting as he does under serious constraints
of time and information, a prosecutor would ‘‘face
greater difficulty in meeting the standards of qualified
immunity than other executive or administrative of-
ficials.” * Further, the sheer number of decisions
which a prosecutor must make that ‘‘could engender
colorable claims of constitutional deprivation’’ means
that a demonstration of good faith in every case
“could impose unique and intolerable burdens.
*& & #99 23

The net harm of allowing only a qualified immunity
in the performance of prosecutorial functions was not
confined, therefore, to the “‘substantial danger of lia-
bility even to honest prosecutors,” or even to the

19 Imbler, supra at 417.
2° Td. at 424.

1 Jd. at 423.

22 Td. at 425.

*3 Td. at 425-26.

** Td. at 425.

5la

expenditure of great time and effort in defending
such suits. Most seriously, the denial of absolute im-
munity would adversely affect “the functioning of the
criminal justice system as a whole’’ ‘‘[T]riers of fact
* * * often would be denied relevant evidence” by
the creation of a systematic bias in the prosecutor
against incriminating evidence of sufficiently uncer-
tain pedigree as to support a colorable cause of
action.” And post-conviction review procedures might
well be biased in quite another way, against the con-
victed person, by “knowledge that a post-trial decision
in favor of the accused might result in the prosecutor
being called upon to respond in damages for his error
or mistaken judgment.” *

As final support for its holding that prosecutors are
absolutely immune ‘‘in initiating a prosecution and in
presenting the State’s case,” the Court noted that
the unavailability of suit under § 1983 for this cate-
gory of cases ‘“‘does not leave the public powerless to
deter misconduct or to punish that which occurs”—
for ‘‘a prosecutor stands perhaps unique, among of-
ficials whose acts could deprive persons of constitu-
tional rights, in his amenability to professional dis-
cipline by an association of his peers.’’* As a deter-
rent of even greater weight, ‘“‘[t]his Court has never
suggested that the policy considerations which compel
civil immunity for certain governmental officials also
place them beyond the reach of the criminal law.” ”
Taking all these policies into account, the Court con-
cluded, on balance, that for § 1983 damage suits, as at

*5 Td. at 426.

** Td. at 427. The Court indicates in footnote that the possibility
of personal liability could also dampen the prosecutor’s exercise
of his duty to expose “all significant evidence suggestive of in-
nocence or mitigation.” Jd. at 427 n. 25.

7 Td, at 431.

8 Td. at 429.

2° Ibid.

52a

common law, a prosecutor’s actions ‘‘intimately as-
sociated with the judicial phase of the criminal
process’’ were entitled to absolute immunity.”

B. Application of Immunity Doctrine to Goodwin.

We thus come to the question of whether defendant
Goodwin’s sworn testimony, to the effect that none
among the witness group represented by counsel was a
Government informant, falls within the absolute
prosecutorial immunity from damage actions estab-
lished by the Supreme Court. As developed in the
introduction, it would surely seem on its face that
Goodwin’s action during grand jury proceedings in
answering a question from the judge in his capacity
as lead prosecutor was action taken as an “officer of
the court.” * This was action within his scope of duty
which called for the exercise of discretion in its per-
formance, precisely the type of “quasi-judicial” funce-
tion within the absolute protection of Imbler.”

% Jd. at 430.

*\T regard it as clear beyond peradventure that the grand jury
character of the proceeding does not itself exclude applicability
of the immunity recognized in /mbler. Those proceedings are a
vital and customary part of the prosecutor’s job, potentially rais-
ing all of the considerations calling for immunity which the
Imbler Court considered. See Cawley v. Warren, 216 F. 2d 74
(7th Cir. 1954).

%2 According to the majority, however, Goodwin’s act of testi-
mony did not involve the exercise of discretion. Maj. op. at 10 n. 6
See n. 16 supra. This characterization is unrealistic. The act of
testifying, while compulsory in the sense that one in Goodwin’s
position cannot freely decline to answer the judge’s inquiries, is
nonetheless discretionary in that substantial judgment deter-
mines the nature of the testimony given. From the perspective of
a questioned party, whose knowledge and certainty on the point
of interest may be great or small, few inquiries can be said to have
but a single honest and correct answer. Discretion and choice de-
termine how best to respond, in view of the precise framing of the
question and the state of the witness’s knowledge.

534

In order to divest Goodwin of his protected prosecu-
torial function, the majority discusses at length num-
erous cases contrasting the prosecutor’s advocacy role

Goodwin’s answer indicates that it was no exception to the usual
discretionary nature of witness testimony. The question from the
trial judge was:

“Mr. Goodwin, are any of these witnesses represented by coun-
sel agents or informants of the United States of America?”

The answer of Goodwin, the witness, was:

No, Your Honor.”

Let us focus, for example, on one phrase in the question—“rep-
resented by counsel.” As the question is framed, it calls for disclo-
sure of the existence of any agent among the witnesses only if that
agent is “represented by counsel.” If Goodwin believed that the
U.S. agent, Emerson Poe, was not represented by counsel, then
he obviously had room for judgment about how to answer the
question. His answer could have been an unelaborated “no,” (as it
was), or a “no” with his assumption or qualification attached. Or
his answer could even have been itself a question for the judge or
counsel about the status of Poe. To see the possibilities of valid
answers which did exist, let us look at the record information
available to Goodwin.

On the day before Goodwin was asked his question, counsel
for the Vietnam Veterans Against the War/Winter Soldier Orga-
nization members orally read in court the names of eighteen poten-
tial witnesses who were the subjects of their concern. See
Transcript at 15, Appellant’s Appendix (App.) at 21. Then the
counsel began to identify which potential witnesses were repre-
sented by which counsel. Counsel did this by stating the name of
the potential witness, followed by the name or names of the counsel
representing him. Thus, in the selection below, for example, Mr.
Mahoney is represented by Mr. Broege. What follows is the court
proceeding as this related to Poe, the U.S. agent. Levine and Peter-
son are counsel for the VVAW/WSO members; Stafford is the
U.S. Attorney at the time. Transcript at 17, App., at 23.

Mr. Levine. Mr. Mahoney, Mr. Broege.

Mr. Camile, Miss Judy Peterson, and I have just been informed
that Mr, Poe, who I believe originally was not represented by
counsel—

Miss Doris Peterson. Just for the Sixth Amendment motion
that Your Honor ruled on the other day.

54a

with his duties related to investigation and admin-
istration. By page 21 the majority is ready to state:

* * * [W]e believe that appellant’s false
statement to the federal district court in
Florida is properly characterized as an act
of investigation rather than advocacy * * *.
[A]ppellant’s alleged perjury bears no relation

Mr. Levine. Now, many of these witnesses—I am sorry. Mr.
Reif and Doris Peterson.

Mr. Srarrorp. Was this Poe?

Mr. Levine. I would ask other counsel if they have any cor-
rected,

Especially read in light of the “[c]onsiderable confusion at-
tend[ant upon] the commencement of the grand jury proceeding,”
Maj. Op. at 3, it can fairly be said that the selection above also
suggests some confusion on this issue as well. Levine and Peterson
recite that Poe was not represented at an earlier point. Then, after
interruption, Levine lists two names of counsel. And to Stafford’s
question, appparently whether these counsel represent Poe, there
was no answer.

The reason for setting out this exchange, I must emphasize, is
not to assert that Goodwin does have a good-faith defense, for
that remains for determination at trial. My purpose rather is to
show that with some evident ambiguity about the representation
of Poe, Goodwin was required to use an element of judgment—
and thus diseretion—in answering the question the next day.

It is, of course, no rebuttal that defendant is alleged to have
given an incorrect answer in denying the presence of an informant.
As noted above, the very point of immunity doctrine is to protect
officials, and their exercise of discretion, against just such accusa-
tions of wrongful conduct which, absent immunity, might state a
good cause of action. Nor does the simplicity of Goodwin’s nega-
tive response to the inquiry (“No”) render his testimony minis-
terial. Any question seeming to call for a yes or no response may
always, in the judicial context, be answered in a qualified man-
ner. Goodwin’s decision as to precisely how the question should be
answered involved a significant exercise of judgement. Whether
the judgment thus displayed was good or poor is precisely the
issue that the immunity doctrine prevents us from reaching.

55a

whatever to the advocate’s role as conceived by
- the Supreme Court in Imbler.”

Indeed ?

This rather extraordinary characterization is not
supported by the “investigatory” cases cited by the
majority. This characterization, moreover, rests upon
a clear misreading of how the Imbler rule should be
applied and upon an overly narrow reading of its con-
ception of advocacy. These points will be developed in
order below. Finally, as I will explain in more detail
in Part I, C, infra, the attempted division of the pros-
ecutor’s function with the grand jury into “investiga-
tive” and “advocacy” roles is legally inaccurate and
practically unworkable.

1. The characterization of Goodwin’s action as “in-
vestigatory” is unprecedented and unjustified.“ As a
matter of case law, including all the cases cited by the
majority, courts have characterized as “investigatory”
those actions outside the courtroom setting where the
prosecutor is acting in a capacity akin to the police
officer in his efforts, for example, to obtain a ‘confes-
sion,” or to make arrests,” or to execute a search war-
rant.” Indeed, the Imbler Court cited to the cases of
policeman’s functions, all involving activities apart
from the courtroom, to show what it meant by ‘‘inves-

33 Maj. op. at 21 (emphasis added).

* My colleagues do admit the logical weakness of their posi-
tion by confessing, “To some extent, of course,.assignment of a
particular incident to one of several mutually exclusive abstract
categories is likely to involve an element of arbitrariness, es-
pecially where the incident in question was clearly ‘not en-
vistoned by those who originally devised Che classicatery eclieme.”
Maj.op.at2l.

*° Robichaud v. Ronan, 351 F. 2d 533 (9th Cir. 1965).

* Aptonv. Wilson, 506 F.2d 83 (D.C. Cir. 1974).

** Hampton v. City of Chicago, 484 F.. 2d 602 (7th Cir. 1973).

56a

tigative”’ activity by prosecutors.* The majority’s view
of this courtroom activity as ‘‘investigatory” under
Imbler is thus absolutely novel under the case law.

The majority’s characterization, moreover, is not
justified by the reasoning of the cases cited by Imbler.
In Hampton v. City of Chicago,” for example, Judge
(now Justice) Stevens recognized that since a police
officer is entitled to only qualified immunity for his
police actions, then a prosecutor performing the func-
tions of a police officer should also be accorded only
qualified immunity because “it seems neither appro-
priate nor justifiable that, for the same act, immunity
should protect the one and not the other.’’ This con-
cern for symmetry of treatment appears as a critical
policy for the majority as well: “Regardless of his
official status, a prosecutor functioning primarily as
an investigator should be accorded only the qualified
immunity typically conferred on other investigative
officers.”

In the instant case, however, a fair application of
symmetry calls for absolute immunity for the prosecu-
tor’s courtroom statement. Goodwin need not be given
qualified immunity because a policeman, if a witness
would only get qualified immunity; on the contrary,
in my view a policeman functioning as a witness in a
manner similar to Goodwin would be entitled to abso-
lute immunity. The majority has not cited—and can-
not cite—any case in which an official, as a witness,
has been denied absolute immunity from a civil dam-
age suit. See Part II, infra. Indeed, if the majority

- % See Imbler, supra at 430 n. 31, citing, among others,
Robichaud, supra and Hampton, supra. |
*° Hampton, supra at 608, quoting Robichaud, supra at 536-37.
«° Maj. op. at 20.

57a

were to.afford a policeman, qua witness, absolute im-
munity but deny it to this prosecutor, giving a similar
answer, then Goodwin would be denied absolute im-
munity solely because of his official status, surely an
impermissible result. If a policeman should have abso-
lute immunity here, functioning as a witness, so too
should Goodwin, functioning as an officer of the court.

Besides the concern for symmetry of treatment in
the performance of similar tasks, the other basic
rationale in the “investigatory”? cases is that the
prosecutor acting like a policeman outside the court
should be afforded only qualified immunity because
there is no other appropriate way for there to be
“judicial surveillance” of this type of executive action.
Apton v. Wilson.“ Put the other way, as Judge
Leventhal did in Apton, the prosecutor acting within
the confines of the court is entitled to absolute im-
munity as a “quasi-judicial officer” because “the cir-
cumstances typically provide alternative instruments
of the judicial branch to check misconduct—the dis-
cretion of the grand jury, the procedures of a trial,
and the potential sanction of discipline imposed by

the court itself.” “

Judged by the reasoning of Apton, it should seem
that. Goodwin is clearly entitled to absolute immunity,
as. his allegedly false statement was, made directly
under the control of the trial judge, a classic instance
of “judicial surveillance.’”’ The majority, however,
seeks to distinguish the reasoning of Apton because, it
says, the circumstances of this case did not in fact pro-
vide for careful scrutiny of Goodwin’s action. See maj.

op. at 27-28. To begin with, the language from Apton

+ Apton, supra at 94.
«2 Ibid.

58a

does not suggest in any way that absolute immunity
for a “quasi-judicial officer” should turn on a particu-
laristic inquiry into whether in fact there was a full
and fair “judicial surveillance.’’ “* Instead, it is the op-
portunity and potential for “judicial surveillance” that
justifies absolute immunity for prosecutorial activity
in a courtroom setting. That the majority is misread-
ing the nature of absolute “quasi-judicial” immunity
will become apparent from a close comparison of its
rationale with Imbler.

2. Two of the reasons that the majority gives for
why absolute immunity is not appropriate in this case
are based upon a clear misreading of Imbler. The
majority asserts, first of all, that there has yet been
no apparent official inquiry into this alleged mis-
behavior, and, secondly, that the alleged perjury here
was insulated from probing examination and jury ap-
praisal. As I will show, these are not material factors
under Imbler, even assuming their accuracy, as to
whether this prosecutor was acting as an “officer of
the court.”’

Consider first the issue of whether there has been
any professional or judicial inquiry into Goodwin’s
action. In striking the balance in favor of absolute im-
munity, the Imbler Court“ regarded as significant
factors “the amenability [of a prosecutor] to profes-

*s Apton mentioned that the circumstances of courtroom activ-
ity by a prosecutor “typically” provided, for example, “the poten-
tial sanction of discipline imposed by the court itself.” bid.
(emphasis added). The choice of the word—“potential”—sug-
gests that it is the opportunity for judicial sanction as an alterna-
tive deterrent to civil suits which is critical and not whether that
possibility and opportunity are, in fact, used.

“ Imbler, supra at 429.

59a

sional discipline by an association of his peers’ and
the possibility as well of “criminal punishment of a
prosecutor.’’ The existence of these checks, the Court
emphasized, thus “does not leave the public powerless
to deter misconduct or to punish that which occurs.” “
In this case the majority holds thu! -ause there has
been no professional or judicial imyui«y after all this
time, it is appropriate to allow an inquiry now in this
suit for damages. This outcome rests on a misunder-
standing by the majority about the nature of the
Supreme Court’s analysis in Imbler. The Court was
weighing the general policies behind absolute as op-
posed to qualified immunity in order to arrive at the
functional rule of absolute immunity for the prosecu-
tor in his role as advocate. By weighing in the balance
the amenability of a prosecutor to alternative sanc-
tions, the Court did not mean that the availability of
absolute immunity from civil damage suits in each
ease should turn on a particularistic determination
of whether the prosecutor’s act in question had other-
wise been the subject of a disciplinary inquiry. In-
deed, the Imbler Court did, in fact, grant absolute
immunity to the individual prosecutor, Mr. Richard
Pachtman, without anywhere indicating whether he
had been subject to disciplinary inquiry in the many
years between the trial in 1961 and the Court’s award

of absolute immunity in 1976. Similarly, it is immate-

rial whether Goodwin’s action has in fact been subject
to disciplinary review. Rather, what the Imbler Court
emphasized is that there had existed the possibility of
alternative checks, citing to the relevant sections of
the ABA Code of Professional Responsibility and the
California Penal Code. So too here, there is no ques-

* Tbid.
257-916—78-—6

60a

tion that there has existed the potential for profes-
sional, criminal or judicial inquiry into his action, thus
bringing him within the analysis of Imbler.“

As a matter of immunity doctrine, moreover, there
is real wisdom in not having the choice between im-
munities turn on a determination of whether this ac-
tion in particular was subject to disciplinary review.
A fair assessment of this factor may have to involve
further proceedings and findings, a possibility which
undereuts the purpose of absolute immunity, to pro-
vide protection at the outset from trial and liability.
In this case, for example, it is not altogether clear
that there was no apparent official inquiry into the
seeming misstatement, as the majority asserts.’ At
the criminal trial of appellees, the trial court held an
evidentiary hearing before admitting the informant,
Poe, as a witness. Based on evidence received at the
hearing, and over the objections of appellees that
their Fifth Amendment right to Due Process and
their Sixth Amendment right to counsel had been
violated, the trial court permitted Poe to testify. Was
the court’s ruling at all based upon its view that
Goodwin’s answer was not perjury or did not violate

‘6 See Disciplinary Rule 1-102 Misconduct :
“(A) A lawyer shall not:
* * * ” ' «
“(3) Engage in illegal conduct involving moral turpitude.
“(4) Engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation.
“(5) Engage in conduct that is prejudicial to the administra-
tion of justice. nfs
“(6) Engage in any other conduct that adversely reflects on his
fitness to practice law.”
American Bar Association, Code of Professional Responsibility
3 (1959). Sy
** Maj. op. at 27.

61a

the Constitution? The record in the criminal case is
not before us and so the question must go unanswered.

Yet if the trial court did face there the issue of the
alleged perjury—which is very plausible since the ap-
— ay gt the defendants there—then the ma-
jority may be unfairly and inaccurately assuning that
there has been no official inquiry. For a more precise
assessment of its assumption, the majority would
have to have a remand on this issue, to allow for
further proceedings, all this taking place, I repeat,
even before the choice of immunities is made. And
yet, without a remand—on whether there had been an
official inquiry at the criminal trial into the alleged
perjury—the majority may be denying Goodwin ab-
solute immunity on the basis of an unfair and inac-
curate assumption, as well as one that is immaterial.
Furthermore, the majority overlooks the important
possibility that the lack of any official inquiry may
itself reflect some oversight by other parties. My
thought is that the Department of Justice and the
District Judge are well aware of the facts on the
merits of this case,“ and that in their opinion the
claim of plaintiff Briggs has no merit, hence no ac-
tion has been taken. It is worth noting also that since

** Without in any way diminishing my reliance on the doctrine
of absolute immunity, in fairness to defendant Goodwin (and as
Mr. Justice Holmes did in Aloua v. Johnson, 231 U.S. 106 (1913) ),
I might say that the record hints that defendant could have a de-
fense on the merits if he were put to trial. It is claimed that in the
Florida trial the defense lawyers’ proffer of whom they represented
at the time of the grand jury proceeding was far from clear, that
the FBI informant was not represented for an earlier motion, and
that the present defendant (then prosecutor) Goodwin’s brief,
unelaborated upon reply to the court’s question was justified. See
also nn. 16 and 32, supra. ="

On the merits of this we of course can express no opinion.

62a

the courtroom incident we have had two Presidents
and several Attorneys General of different political
persuasions. How does the majority take into account
the possible scrutiny by all these people, short of a
formal “official inquiry,” and their possible judgment
that action against Goodwin was not warranted? If
Goodwin is to be denied absolute immunity because
nobody has reviewed his alleged misbehavoir, then the
majority must not totally overlook, as it does, the
important possibility that the relevant parties have
- exercised some oversight and have decided against
further inquiry.

The short of it is that it is unwise to make absolute
immunity turn on whether there was in fact alterna-
tive review of the incident in question. Such an in-
quiry, as demonstrated by this case, may raise evi-
dentiary and other issues that must be resolved even
before the choice of immunities can be made. The
greater the number of issues that are injected into
this choice, beyond the necessary issues of scope of
duty and discretionary act, the more the protection
of absolute immunity—the dismissal of a suit at the
outset—is eroded. It was thus very appropriate for
the Imbler Court not to consider whether that prose-
cutor had been called to answer for his alleged court-
room misdeeds. We should, and must, follow their
example: it is immaterial whether there was ever an
“official inquiry” into Goodwin’s alleged perjury.

The other argument of the majority is that because
Goodwin’s statement was “insulat[ed]” from ap-
praisal by the jury and further inquiry by the ap-
pellees, it is inappropriate to accord absolute immu-
nity in this case.“ Once again, this outcome rests upon

* Op. at 28.

63a

a misreading of Imbler. As mentioned earlier,” Jus-
tice White in a separate opinion argued that there
should be only qualified immunity for the uncon-
stitutional withholding of information from the
court. When a prosecutor suppresses evidence, Jus-
tice White contended, it is, by definition, not subject
to the scrutiny of the judicial process; thus, there is
“no way to prevent or correct the constitutional vio-
lation.” Note the similarity to the majority’s view
that absolute immunity is inappropriate here. For
example, the majority points out that ‘“‘appellecs and
their counsel were required to accept appellant’s rep-
resentation on faith.”” which meant, in Justice
White’s terms, that there was ‘‘no way to prevent or
correct the constitutional violation.” “

The short answer to the majority’s view that Good-
win’s “‘insulat[ed]” answer loses absolute immunity
is that the Imbler Court expressly rejected Justice
White’s separate view that the total suppression of
evidence warranted only qualified immunity.“ Thus,
under Imbler it is immaterial to the choice of immu-
nities whether Goodwin’s allegedly false statement
during judicial proceedings was not adequately tested
by cross-examination or by jury appraisal.

Moreover, viewing this case in terms of the sup-
pression of evidence, the Imbler Court’s rejection of
Justice White’s separate approach may be said to set-
tle and control this case. One of the policies justifying

% See n. 10 supra.

* Imbler, supra at 441-45 (White, J., concurring in the
judgment).

52 Op. at 28.

58 Imbler, supra ai. 443 (White, J.).

* Imbler, supra at 431-32 n. 34 (Powell, J., opinion of the
court).

64a

absolute prosecutorial immunity is that otherwise “the
triers of fact in criminal cases often would be de-
nied relevant evidence.” By rejecting Justice
Wuite’s view that an unconstitutional withholding
should not warrant absolute immunity, the Imbler
Court was essentially saying that in all the deei-
sions about presenting evidence to the court the
prosecutor would have absolute immunity. This would
include decisions to present evidence of dubious re-
liability as well as decisions not to present particular
evidence at all. In these terms, what Goodwin al-
legedly did, in essence, was decide not to present the
court with the evidentiary fact that there was a gov-
ernment informant among the witnesses. Since this
decision entailed an element of judgment (given the
framing of the question from the trial court), it is
a decision about presenting evidence, in this case
from himself as. witness and counsel, that is basically
the subject of this suit.

Imbler afforded protection for the full range of
decisions about presenting—or withholding—evidence.
Once again, we should, and must, follow their guid-
ance: it is immaterial whether Goodwin’s decision, to
withhold evidence, was shielded from cross-examina-
tion, or the other “corrective” aspects of the trial
process.

3. Central to the majority’s conclusion denying abso-
lute immunity to this prosecutor is its view that his
“alleged perjury bears no relation whatever to the
advocate’s role as conceived by the Supreme Court in
Imbler.’’* As discussed above, this conclusion dis-
regards whether his alleged perjury bears a relation

55 Jd. at 426.
5° Maj. op. at 21.

65a

to his role as an officer of the court (which he may be,
even though not an “advocate” in the most narrow
sense) under Imbler or to his role as witness, both of
which roles are entitled, I submit, to absolute im-
munity. But even considering solely the advocacy role
for the moment, the majority finds no relation to advo-
cacy only by adopting a much more narrow view of
the advocate’s role than was conceived and applied
in Imbler. If the advocate’s role as defined in Imbler
and the circumstances of this case are properly under-
stood, Goodwin’s response to the question may fairly
be seen as a necessary part of his advocate’s role.

The Imbler Court meant for the advocate’s role to
be read very broadly. Not only did Imbler go out of its
way to say in dicta that the role extended to “actions
preliminary to the initiation of a prosecution and
actions apart from the courtroom.’’™ but also in dis-
posing of the case it found actions to be advocacy
which, at first glance, appeared more to be investiga-
tion. Having already shown that the broad language
of the dicta appears to bring his alleged perjury with-
in the ambit of Imbler,” let us focus here on how the
treatment of the precise facts of Imbler also estab-
lishes that the action of Goodwin comes within the
broad definition of advocacy.

The starting point for the relevant analysis is fvot-
note 32 of Imbler, which discusses seemingly “ investi-
gative” activity. Because of the importance of the
footnote to following the analysis, it is reproduced in
full below in the text. (Costello, a central character in
the footnote, was the primary identification witness

at the trial of Imbler.)”

5" Imbler, supra, at 431 n.33.
88 Supra n. 10.
%° Imbler, supra at 430 n.32.

66a

Both in his complaint in District Court and
in his argument to us, petitioner characterizes
some of respondent’s actions as “police-related”
or investigative. Specifically, he points to a re-
quest by respondent of the police during a
courtroom recess that they hold off questioning
Costello about a pending bad-check charge until
after Costello had completed his testimony.
Petitioner asserts that this request was an In-
vestigative activity because it was a direction
to police officers engaged in the investigation of
crime. Seen in its yo light, however, re-
spondent’s request of the officers was an effort
to control the presentation of his witness’ testi-
mony, a task fairly within his function as an
advocate.

The action at issue in the above footnote was the
prosecutor’s request of the police that at that time
they not question Costello, the prosecution’s witness,
about a pending criminal charge. Ordinarily, requests
and directions about police interrogation would be
considered acts of investigation. However, the prosecu-
tor’s request was deemed an act of advocacy in Imbler
because his concern about the interrogation was that
it might impair the remainder of Costello’s testimony.
Following police interrogation, Costello might be nerv-
ous, and a less effective witness. Or after such inter-
rogation, he might become less cooperative as a
- ‘tame witness or even refuse to cooperate at
all.

Applying this reasoning to the instant case, it also
appears that the act of claimed perjury should be
taken as advocacy. Given that the object of the as-
serted perjury was to avoid disclosing the existence
or identity of the government agent, that meant, since
the concealment was accomplished, that the agent was
able to appear at trial as a witness—and did appear—

674A

without his existence or identity known to the defend-
ants beforehand. As a result, the presentation of the
witness’ testimony was very likely more effective,
much as Costello’s testimony was possibly made more
effective due to the postponement of police interroga-
tion. Seen in this light, Goodwin’s act of alleged per-
jury can be taken as an effort to preserve the more
effective use of a witness at trial.” As in Imbler,

Goodwin’s act was even more clearly not removed
from the judicial process, being in court, relating to a

grand jury ss and should be considered as
relating to the other advocacy duties of his grand jury
function.

C. The Majority’s Extraordinary Misconception of
the Prosecutor’s Role With the Grand Jury

After its discussion of cases making the distinction
between the advocacy role of the prosecutor and his
sometime “‘investigative’’ or “administrative’’ duties,
the majority opinion then develops the argument that
Goodwin’s performance of his duties as a prosecutor
with the grand jury was in this case, although not
necessarily in other instances of his work with the
grand jury, properly characterized as ‘‘investigative”
in nature rather than being connected with his role
as an advocate. I respectfully suggest that the entire

*° Poe testified at the jury trial on 20 August 1973. The Jencks
Act material, revealing his existence, was made available on 17
August 1973. The same day as the disclosure, 17 August, the trial
court held an evidentiary hearing to determine the relationship
maintained by Poe with defendants and counsel during and after
the July 1972 grand jury proceedings. Based on evidence received
at the hearing, and over the objections of the defendants in Briggs
that their Fifth Amendment right to Due Process and Sixth
Amendment right to counsel had been violated, the trial court per-
mitted Poe to testify. Brief for Appellant at 8 n. 6.

68a

development of this argument in the majority opinion
is founded on a total misapprehension of the relation-
ship of the prosecutor to the grand jury and a mis-
conception of the grand jury’s role itself. The dis-
tinctions attempted to be drawn are demonstrably
legally incorrect and, to anyone who has ever worked
with a grand jury, totally impossible to apply as a
matter of practicality.

Since the exposition of the underlying rationale of
the majority on this point is spread over several
pages, I shall quote certain excerpts so that the ma-
jority rationale will be unmistakably clear. “We are
aware that earlier cases in which prosecutorial be-
havior has been termed investigative have involved
factual situations distinct from that currently before
us. (P. 24) * * * [W]e think that, in a real sense,
this litigation concerns behavior more plainly investi-
gative than that encountered in scme of the earlier
cases cited above. (P. 25) * * * The grand jury [in
Goodwin’s case] was to function in the first instance
as an investigative tool, rather than in its more famil-
tar guise as a deliberative body deciding whether to
return indictments for specific crimes on the basis of
evidence gathered and presented by a public prose-
cutor. (P. 26) * * * The ongoing character of the
grand jury process in this case helps to convince
us that appellant had embarked on what was funda-
mentally a fact-finding mission, and that his false
statement to the court, if such it was, was intended
to improve the prospects for that endeavor’s success.”
(Pp. 26-27) (emphasis supplied).

The majority thus tries to divide grand jury func-
tions into “investigative’’ and “deliberative.’’ There is
that distinction, but the way the majority defines and

69a

separates it, it is completely erroneous and misleading
here. Let me see if I can dispel the confusion:

1. The grand jury does not have a “more familiar
guise as a deliberative body” and another role as ‘‘an
investigative tool.”” The grand jury ALWAYS has
both roles of hearing evidence (investigating) and
then deciding whether to return an indictment (delib-
erating).

2. The prosecutor’s only role with the grand jury is
during the time that it is hearing evidence, 1.e., investi-
gating. His usual duty at that time is to interrogate
witnesses, much as he does in the courtroom.

3. The prosecutor never has a role with the grand
jury while it is functioning as a “deliberative body.”
By law he is excluded, as is everyone else, from the
grand jury during this time. Federal Rules of Crim-
inal Procedure 6(d). His presence or assistance to the
grand jury during the time it was functioning, in the
words of my colleagues, “in its more familiar guise as
a deliberative body” would be grounds for quashing an
indictment.

4. The majority deprives the prosecutor here of his
absolute immunity because he was performing duties
with the grand jury which was then functioning “in
the first instance as an investigative tool,’’ but they do
not seem to realize that this is the only role for the
prosecutor with the grand jury. The majority never
presumes to exclude the prosecutor at all times from
his absolute immunity when he is working with the
grand jury. The opinion tacitly assumes that the pro-
secutor, when working with the grand jury in what
the majority considers his normal prosecutorial funce-
tions, is clothed with his usual absolute immunity as a

70a

proseeutor, because they recognize a good part of the
prosecutor’s duties is in assisting the grand jury, an
arm of the court. Certainly in performing this func-
tion the prosecutor would, in the language of Imbler,
be functioning “as an officer of the court” whose ‘‘ac-
tivities were intimately associated with the judicial
phase of the criminal process.’”’ The majority itself
states, “The cases collected by appellant hold un-
animously that a prosecutor is entitled to absolute im-
munity for his quasi-judicial activities. After Imbler,
this point is incontestable.’’ (P. 22)

5. What the majority is trying to do here is to make
a distinction between those cases brought before the
grand jury which require very little evidence, or very
little original evidence before the grand jury, as the
basis of an indictment, and those cases which require
a great deal of evidence, some of which may be heard
by the prosecutor for the first time. The majority
seems to think that, simply because the matters which
were to be heard by this particular grand jury in
Florida were estimated to require considerable time
and perhaps to consist of evidence not hitherto heard
by the prosecutor or anyone else, somehow the pros-
ecutor was no longer functioning in his same role.
Necessarily, the majority also tries to redraw the line
between the grand jury’s roles of hearing evidence
(investigation) and deliberation (discussing and vot-
ing on indictments). The majority does this by ap-
parently classifying simple cases with short routine
presentations of evidence as being “in its more fami-
liar guise as a deliberative body deciding whether to
return indictments for specific crimes on the basis of
evidence gathered and presented by a public prosecu-
tor.” (P. 26) |

71a

6. The attempted split of the prosecutor’s role, de-
pending on how much or how little evidence,. and
whether he has heard it before or not, is totally er-
roneous and confusing. The attempted split of the
grand jury’s role, between’ on the one hand compli-
cated cases in which it assists in ferreting out the true
facts of the case as well as hearing evidence of which
the prosecutor was already aware, and on the other
hand cases in which the grand jury functions as a
deliberative body, which according to the majority
now includes both hearing evidence “gathered and
presented by a public prosecutor” and its secret delib-
erations on evidence in any type case, is likewise
totally erroneous and confusing. The grand jury is
never in a “familiar guise as a deliberative body”
when it is hearing any evidence—no matter how short
or how routine the presentation. Nor is the prosecutor
ever assisting the grand jury in its “familiar guise as
a deliberative body”—such aciion, as the majority de-
scribes it, would invalidate every indictment.

7. Aside from its misconception of the functions of
the grand jury, and its attempt to redraw the line
between those functions, now clearly drawn by law,
the majority’s idea of dividing the functions of the
prosecutor with the grand jury into two separate
parts, one apparently his role in a routine case and
the other in a more elaborate case requiring original
work with the grand jury, is utterly impractical.
There is no possible line of distinction to be drawn
between different types of cases as the majority ap-
parently thinks there is.

Cases before the grand jury run the gamut from a
simple narcotics possession case, which may require
only the testimony of the arresting officer, elicited by
questions from the prosecutor, after which an indict-

72a

ment is speedily voted while the prosecutor is getting
a glass of water at the nearby water cooler, to a very
complicated income tax fraud or mail fraud case in
which reluctant or fearful witnesses may have de-
clined to talk to federal investigative agents, but do
testify before the grand jury under the questioning
of the prosecutor and which may require weeks and
weeks of testimony before the grand jury.

In between are every shade and variation of case in
which the advocacy skill of the prosecutor is called
upon to assist the grand jury. There is the simple
fraud case, in which the witness before the grand
jury may be only one investigator and three victims
defrauded, after whose testimony the prosecutor may
inform the jury that ten other fraud victims are
available to testify if the jury wishes to hear them,
but what they will say has been summarized by the
investigator. Then there is the same type case in
which one or two witnesses may be reluctant to testify
for fear of incriminating themselves. This necessitates
not only the presentation of the investigators’ and the
victims’ evidence, but perhaps a trip before the dis-
trict judge to secure a grant of immunity for the wit-
ness, and his second appearance before the grand
jury, at which time he responds to the prosecutor’s
questioning and testifies. Then there are situations in
which, although a complete investigation has been
done by the regular federal investigative agents, at
the last minute before the presentation of evidence to
the grand jury the prosecutor learns of an additional
witness who could throw light on the case, and he
promptly puts this witness before the grand jury
without any preliminary questioning by ‘anyone
whatsoever.

73A

The examples of different shades of the prosecutor’s
questioning, of different degrees of the prosecutor's
assistance to the grand jury, of differing combinations
of the routine and the bizarre in the presentation of
testimony before the grand jury by the prosecutor,
could be multiplied without end. There is absolutely
no line which ean be drawn to separate the prosecutor’s
role in the more routine case lasting a few minutes
from that in which original testimony is heard by
the grand jury over a period of weeks, for there is
every variation and combination in between. In every
case the prosecutor is assisting the grand jury in
hearing evidence, the investigative phase of the grand
jury’s work. The degree of his assistance is of in-
calculable variety and description, but in no case—
in no ease—does the proecutor assist the grand jury
‘‘in its more familiar guise as a deliberative body.”

8. The majority throughout stresses the advocacy
function of the prosecutor as that which is entitled to
absolute immunity. For example, [T]he Court * * *
reaffirmed its fundamental reliance on the advocate’s
role as the source of the abolute prosecutorial immu-
nity applied in Imbler.” (P. 17) Ironically, for the
validity of the majority’s logic, it is precisely in the
long complicated grand jury case, on which the ma-
jority here rests its denial of absolutely immunity to
the prosecutor, that the prosecutor functions most as
an advocate, most similar to his role in court. In the
utterly routine case, such as the simple narcotics pos-
session mentioned above, the prosecutor may intro-
duce the arresting officer to the grand jury and only
ask him one question, “Officer, just tell the grand
jury in your own words what happened.” And the
officer does so without the necessity of any further
interrogation by the prosecutor.

74a

In direct contrast, if the grand jury is engaged in a
long and protracted inquiry, in dealing with witnesses
who have not been previously examined by investiga-
tors, or dealing with witnesses who are recalcitrant,
the skills of the advocate in cross-examination, know]l-
edge of what is relevant and irrelevant, his sense of
when a witness is concealing something or fabricat-
ing—all of these skills of an advocate come into play
for the prosecutor in assisting the grand jury, the
arm of the court. Strangely, because Goodwin. was
engaged in assisting the grand jury in such an in-
quiry, the majority wishes to term his actions
‘“‘investigative,’’ and deny him his status as an ‘‘ad-
vocate” entitled to absolute immunity, which the ma-
jority would grant him if he were presenting to the
grand jury a one gram narcotics possession case!

Surely, the prosecutor ts functioning as an officer of
the court and in direct relation to the judicial phase
of the criminal process in any case in which he works
with the grand jury—irrespective of complexity,
length of time, number of witnesses, or whether the
witnesses have been interviewed before. Yet, most
ironically, it is precisely in the type case in which the
prosecutor utilizes his talents and advocacy, the type
case the majority says the grand jury and Goodwin
had here, in which the majority would deny the prose-
cutor absolute immunity.

9. It is apparent that only if the majority wants to
deny all prosecutors absolute immunity for all their
work with the grand jury could the majority’s posi-
tion be logically coherent. And this bold stroke the ma-
jority has not essayed.

The true distinction between the prosecutor acting
as an officer of the court or in an investigative role is

75a

one which the majority opinion does not describe, but
which is inherent in the Supreme Court’s opinions in
Imbler and in other cases. When the prosecutor ex-
amines a witness before the grand jury, whether he
asks one question or five hundred, he is functioning
as an officer of the court and his activities are inti-
mately associated with the judicial phase of the criminal
process. I submit this is undeniable. When the prose-
eutor goes out to the residence of a potential witness
and interrogates him there, then he is functioning in
what the majority ought properly to describe as the
role of an investigator. On the point reserved in Im-
bler and on the issue decided in a few cases, then and
then only the prosecutor may not have the absolute
immunity which clothes his every action as part of the
judicial process. When he is interrogating a possible
witness outside the courtroom or the grand jury room,
then he may be filling the role of a policeman or in-
vestigative agent and be clothed with whatever immu-
nity they possess. This we do not need to decide here,
any more than the Supreme Court decided the issue
in Imbler.

D. The Prosecutor Divested

The rationale of the majority opinion throughout
has been, first, to designate the grand jury work on the
day the incident occurred in the courtroom as being
“investigative” in character and not “deliberative”;
secondly, to associate Goodwin with the grand jury
acting in its non-deliberative role (assuming that the
prosecutor could be associated with the grand jury in
its deliberative role!) ; and then, finally, saying that
his response to one question from the judge in the
courtroom was in connection with his work with the
grand jury, and this grand jury’s task was “investi-
gative,” to deny the prosecutor his absolute immunity.

257-916—78———-7

76A

Four quick points highlight the total lack of prec-
edent for my colleagues’ decision today:

1. No case cited in the 37-page majority opinion
ever held that any prosecutor’s action in the court-
room was “investigation” or “administration,” or
was entitled to anything less than absolute
immunity.

2. The “proper line’? drawn in Imbler was be-
tween the prosecutor’s responsibilties “as an ad-
ministrator” and those “as an officer of the court,”
and every action of a prosecutor described by the
Supreme Court as “administrator or investigative
officer” was outside the courtroom and courthouse.

3. The Supreme Court has never held that “those
aspects of the prosecutor’s responsibility that cast
him in the role of an administrator or investiga-
tive officer rather than that of advocate” are en-
titled to less than absolute immunity, and the
issue was specifically not decided in Imbler.

4. No case cited in the 37-page majority opinion
confers anything less than absolute immunity on
any person for his statements from the witness
stand.

Summing up Goodwin’s role as a prosecutor in the
incident made the basis of piaintiffs’ suit for perjury:
only because Goodwin was lead counsel for the Gov-
ernment in court was he singled out as the person to
be asked the question; there was only one question
and one answer, made from the witness stand rather
than from the counsel table; at the time Goodwin was
in the courtroom, before a U.S. district judge, in his
prosecutorial advocate’s role as an officer of the court
in a hearing connected with a proceeding before the
grand jury, an arm of the court. How Goodwin’s role

can be considered anything but that “as an officer of

81 Jmbler, supra at 430-31.

774A

the court”’ or his actions be deemed not “intimately as-
sociated with the judicial phase of the criminal process,
and thus * * * functions to which the reasons for abso-
lute immunity apply with full force,” is beyond
my ready comprehension. But my colleagues assert that
for one critical moment Goodwin was transformed in
his appearance as a witness into something else, that
since the one question had to do with a grand jury
“investigation,” he was thereby taken out of the “advo-
cacy” role of Imbler. Whether that be true or not, yet
it seems undeniable that in answering a question under
oath Goodwin was also functioning as a witness, an-
other source of absolute immunity to which we now
must turn.

I. Witness ImMMunNtIty

A. The Prosecutor-Witness Transformed

The way that the majority divests Goodwin of his
absolute immunity as courtroom advocate is by easting
him as a courtroom investigator, entitled only to the
qualified immunity of the policeman. Let us focus
agaim on the critical passage of the majority opinion:

[ W]e believe that appellant’s
to the federal district court in Wlorida to prop.

erly characterized as an act of investigation
rather than advocacy * * * [A]ppellant’s al-

* Fd. at 430. The policies behind immunity in civil damage suits
have not been thought relevant in suits seeking injunctive relief.
E.g., Younger v. Harris, 401 U.S. 37 (1971); Dombrowski v.
Pfister, 380 U.S. 479 (1965) ; Douglas v. City of Jeannette, 319
U.S. 157 (1943). While only some of the cases in this line have
found injunctive relief against prosecuting officials to be appro-
priate, the question of the officials’ immunity has not been a rele-
vant restraint. With the majority, op. at 7 n. 4, I agree that the
question of equitable relief should be left with the District Court
for further consideration.

78A

leged perjury bears no relation whatever to the

pe ae role as conceived by the Supreme

Court in Imbler.” :
If Goodwin departed from his role as an Advocate

(and I agree, it is what he is doing, not his title as
prosecutor which confers immunity), he did so only to
become a Witness, and a witness in court likewise has
absolute immunity from civil suit. The very suit f or
damages brought here alleges perjury by Goodwin ;
perjury is an action peculiarly tied to witnesses ; the
perjury here is alleged to have occurred in court ;
perjury has nothing to do with “investigative” or
“administrative” activities, which are contemplated by
all the cases to occur outside the courtroom. The ma-
jority opinion itself grudgingly admits, “Although he
was called upon by the court to make a representa-
tion of fact in a courtroom after being sworn * * *.”**

Continuing with my colleagues’ own language, they
speak of “appellant’s false statement”? and “appel-
lant’s alleged perjury.” When they assert such ac-
tion “bears no relation whatever to the advocate S
role,” they have some reason for the distinction ; but
perjury certainly bears every relation to the witness's
role! _:

My colleagues are the victims of their stage props.
For almost 20 pages they have been setting the stage
with language from various cases distinguishing be-
tween the prosecutor’s role as advocate and his other
duties, cases which hold or suggest that the other
duties are not necessarily protected by the prose-
cutor’s admitted absolute immunity as an advocate.
The problem of my colleagues is that these other
duties are all described as “investigative,” “‘adminis-

63 Maj. op. at 21 (emphasis added).
* Maj. op. at 31.

79a

trative,” and of similar nature. There is not one word
cited that would exclude anything done by the prose-
cutor tn assistance in the judicial process in court
from protection of absolute immunity. There is, of
course, not one word about the prosecutor stepping into
the role of witness—ancther universally held position
accorded absolute immunity from civil liability. So, in
an effort to take Goodwin’s action outside this pro-
tection, when the majority comes to its conclusion, it
is necessarily expressed in the magic language of the
cases—a “false statement” becomes ‘‘an act of in-
vestigation rather than advocacy.”

The obligation to disclose, as a sworn witness, in-
formation about informants may, in a narrow sense,
be “foreign to advocacy,” as the majority suggests,”
but the actions of a witness do not, therefore, auto-
matically become ‘‘investigative,” stripped of abso-
lute immunity. For to the extent Goodwin departed
the prosecutor’s role at all, it was to become a witness.
But whether Goodwin be considered primarily a wit-
ness or a prosecutor, how a person performing the
role of prosecutor could detach himself from the
absolute immunity which that function historically
has always enjoyed by the temporary assumption of
the role of a witness, when that function in the
court’s process has likewise always historically en-
joyed an absolute immunity, was beyond my imagi-
nation until after reading the majority opinion.
Looking at three centuries of decisions granting ab-
solute immunity to both prosecutor and witness, I
would have thought that the immunity of the prose-
cutor was reinforced by the immunity of the witness,
not derogated.

*° Maj. op. at 21.

SOA

The majority, however, manages to divest Goodwin
of both immunities, Prosecutorial immunity is lost
because Goodwin is characterized, without support
from case law, as an ‘“‘investigator”—although any
casual bystander (and perhaps even the trial judge)
in that courtroom would have sworn that he had seen a
lawyer at work, indeed, a prosecutor functioning as
an advocate, and, yes, he had also seen and heard
that presecutor testify briefly. And witness immunity
is lost because the majority holds here that absolute
witness immunity should never be available in a
§ 1983 or Bivens-type suit. The consequences of this
extraordinary step, a rule of qualified immunity for
witnesses adopted for the first time, which clashes
directly with the one other precedent from a circuit,”
deserves careful attention before proceeding further.

B. Extraordinary (and Apparently Unforeseen) Con-
sequences of a Qualified Immunity Rule for
Witnesses

The first implication is that any and all state and
local officials who testify “under color of law’’ will
have no absolute immunity in their capacity as wit-
ness in suits for damages to constitutional rights
vuder § 1983. For the majority expressly states, “The
immunities enjoyed by state officials sued under
§ 1983 are governed by federal law.’’” Since, in this
Bivens-type case, the majority holds that witness im-
munity is never available for a federal official as a
matter of federal law, it follows that state and local
officials, who must look to federal law in § 1983 suits,
will also be unable in any circumstances to avail

© Brorer v. Horowitz, 535 F. 2d (3rd Cir. 1976) (absolute
witness immunity available in a Birens-type suit).
*? Maj. op. at 12 n. 7.

8la

themselves of absolute witness immunity. Neither my
colleagues nor I can calculate the practical impact
of the majority’s rule, but there are undoubtedly
countless federal, state and local officials who regu-
larly testify in judicial proceedings who are now
stripped of any possible defense of absolute immunity
in their capacity as witnesses. What the majority
leaves for each official is whatever underlying im-
munity he may have in his original capacity, which,
of course, may vary from witness to witness and may
vary even within the testimony of a single witness.”

e Thus, one witness may have absolute immunity if he testifies
about actions or events arising from a capacity that is accorded
full protection, like a judge or grand juror, while another witness
Yon baer have oe immunity if he testifies about actions or

vents arising from a capacity that is given qualified protection,

like a police officer. For some witnesses > sa Salvadie may >

tach toeeme of their testimony bet only qualified immunity to the
.w immunities switchin i

= tear fomreay g back and forth in the course

The witness testimony of a prosecutor may serve as an apt illus-
tration. Consider, for example, the line of cases on “selective” law
enforcement. United States v. Steele, 641 F. 2d 1148 (9th Cir.
1972), held that the government could not purposely single out a
vocal opponent to the census for prosecution for refusal to answer
the census. See also Dizon v. District of Columbia, 394 F. 2d 966
(D.C. Cir. 1968). In order to determine if the “purpose” of a pros-
ecution is to retaliate against someone who exercised the right of
free speech, it may be necessary to call the prosecutor in the cave
as a witness for examination by the defendant’s counsel, as in
United States v. Falk, 479 F. 2d 616 (7th Cir. 1973) (en banc)
(remand for hearing for defendant to question Assistant U.S. At-
torney). If the prosecutor were sued for perjury in connection
with his testimony about why he brought a particular prosecution,
absolute immunity for the alleged perjury would be available, as
Imbler, supra at 424, covers the decision when to prosecute. But if.
for example, the prosecutor were sued for perjury in connection
with the conduct or the rationale for some early general invest iga-

82a

Another implication of the majority’s rejection of
absolute witness immunity is that an official who tes-
tifies now stands subject to the full range of damage
suits for deprivation of constitutional rights. In this
ease Goodwin is charged with injury to the Sixth
Amendment right to counsel due to his alleged per-
jury. The majority sets no limits on the “constitutional
torts” that a witness may be held liable for, now that
the absolute immunity qua witness is taken away.
Causes of action against a witness for what he said
on the stand come readily to mind. As exemplified in
the notes below, violations of the Fourth, Fifth and
Sixth Amendments, actionable for damages, may well
stem from perjury,” and violations of the First and
Fourteenth Amendments, also actionable for damages,
may even arise from true statements.”

tion, then only qualified immunity for damages from witness testi-
mony would be available, since the investigative activity of the
prosecutor is outside of the /mbler protection in the majority's
view. Thus, as a consequence of the majority’s rejection of absolute
witness immunity, there is left a patchquilt of underlying immu-
nities, varying from witness to witness and subject-matter to sub-
ject-matter.

*° Witness testimony could arguably cause Fourth Amendment
injury, for instance, if evidence seized in fact in an unreasonable
search were admitted due to a perjured account by a police officer
of the circumstances of the search. Similarly, witness testimony
could arguably cause Fifth Amendment injury, ¢.g., to the priv-
ilege against self-incrimination, if a confession taken in fact in
violation of the Miranda rules were admitted because of perjured
testimony. The instant case illustrates possible Sixth Amendment
damage to the right to counsel. i.c., the concealment of an inform-
ant among the defendants due to an alleged perjury.

7 First Amendment injury could arguably arise from witness
testimony where an unjustified, albeit truthful disclosure, ¢.g., of
another person’s membership in unpopular organizations, enables

83a

Once again, neither my colleagues nor I ean envi-
sion the full practical impact of bringing an increased
scope of liability to the witness stand, but the ma-
Jority’s new rule surely bears implications, only par-
tially suggested here, that summon the majority to a
much fuller consideration of the witness immunity.
Before turning completely to the issue, I note with
regret that the majority totally abstains from any
consideration of the policies behind witness immunity,
only noting that they “do not apply with equal force”
when a constitutional violation is alleged.”

C. Absolute Immunity for Witnesses—Su preme Court
Precedent, Logic, Policy, and H istory

In considering whether a witness should be ac-
corded absolute immunity in a Bivens-type suit or any
other, it must be emphasized that historically all of
the essential participants in the judicial process en-
joyed an absolute immunity from civil suit for their
words and actions relevant to the judicial proceed-
ings. This included the judge, petit jurors, grand
jurors, counsel, and witnesses. Absolute immunity was

third parties to retaliate against a person who has exercised his
right to freedom of association. See NAACP v. Alabama, 357
US. 449, 460-63 (1958). Injury to the right of privacy implicit
in the liberty protected by the Fourteenth Amendment could also
arguably arise from truthful disclosures by a witness that bring
to public light intimate and embarrassing details about other per-
sons without sufficient justification. Cf. Doe v. McMillan, 412 U.S.
306, 308-10 (1973). Other unjustified disclosures by a witness, not
of private matters, may also be actionable under the Fourteenth
Amendment when they result in the deprivation of any “liberty”
or “property” recognized by state or federal law. See Paul v.
Davis, 424 U.S. 693, 710-11 (1976).
™? Maj. op. at 35.

84a

regarded as essential to each, if justice was to have
the full and uninhibited cooperation of those partici-
pants whose role was and is absolutely vital to the
working of the entire judical process. As Justice
White declared in Imbler,* “It is essential to the
ends of justice that all persons participating in judi-
cial proceedings * * * should enjoy freedom of
speech in the discharge of their public duties or in
pursuing their rights, without fear of consequences.”

This is not to say that improper conduct in the
courtroom or elsewhere by any participant could not
then and cannot today be punished. The judge has
always been subject to impeachment, prosecution, and
disbarment as a lawyer. The prosecutor and defense
counsel have always been subject to punishment for
contempt, prosecution for any crime such as obstruc-
tion of justice, and disbarment.” Witnesses have al-
ways been subject to punishment for contempt, per-
jury, or possibly obstruction of justice. Criminal pen-
alties likewise have been applied to petit jurors and
grand jurors. No immunity protects these persons
from criminal prosecution or professional discipline,
if anyone should act contrary to law in the perform-
ance of his office.

But none of these participants, essential to the
functioning of the judicial process, has ever been
held to be subject to a civil suit by an allegedly ag-
grieved party because of anything said or done while
functioning in the role of judge, jurors, witnesses, or
counsel.

72 Supra at 440 (concurring opinion), quoting from Veeder,
Absolute Immunity in Defamation: Judicial Proceedings, 9 Col.

L. Rev. 463, 469 (1909).
3 See n. 46 supra.

85a

The reasons for the historic common law absolute
immunity of these essential participants is obvious
on analysis, which will be developed in the following
pages. What the majority of this court does in this
decision is not just throw open one possibly errant
prosecutor to civil liability, but to tear the whole
seamless fabric of absolute immunity granted essen-
tial participants in the judicial process from time
immemorial.

If we were to accept the majority’s rationale here,
the impact of the Bivens case and § 1983 on historic
common law immunities would be devastating. Fortu-
nately, that is not the way the Supreme Court has
gone about its analysis. I can only deduce from it that
the witness, particularly a public official as witness,
should be accorded the same absolute immunity as the
other participants.

It. is well established that ‘‘§ 1983 is to be read in
harmony with general principles of tort immunities
rather than in derogation of them.’’ * Thus, in decid-

* Imbler, supra at 418, citing Tenney v. Brandhove, 341 US.
367 (1951). As a statutory cause of action, § 1983 on its face does
not create or arguably even allow various immunities in damage
suits. “Nevertheless, there are certain absolute 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 abolish them in enacting 42 U.S.C. § 1983.”
Imbler, supra at 434 (White, J., concurring opinion). Under
§ 1983, a study of common law immunities is not only useful as
a prudential guide to the policy considerations but as fair evi-
dence of Congressional intent in enacting the broad § 1983. In
determining immunities in Bivens-type actions, which are created
by the courts, the common law immunities also warrant careful
study, even though obviously Congressional intent is not as para-
mount a factor. For the common law immunities often reflect the
relevant policy concerns that the courts themselves would wish

86a

ing which official functions should be absolutely pro-
tected from suit under § 1983, the Court has generally
sought first to determine the status of the common law
immunity with regard to that function, then the Court
has considered whether the public policy behind the
common law rule justifies the same immunity for
‘‘eonstitutional torts.’’ In a number of instances, the
Court has adopted the absolute immunity that had
developed at common law: Tenney v. Brandhove™
(legislators) ; Pierson v. Ray™ (judges); Imbler v.
Pachtman, supra (prosecutors). Even though these
immunities had initially arisen only with regard to
common law torts, the Court preserved them with
regard to deprivations of constitutional rights as well.
Where the common law had established a qualified
immunity for the official, the Court has maintained
that standard in § 1983 actions as well: Pierson v.
Ray, supra. (policemen); Wood vy. Strickland™
(school board members). As in the cases of absolute
immunity, the court, entered into a fresh appraisal
of the competing factors, including, as just mentioned,
the nature of the new ‘“‘constitutional tort.” The fact
that the results reached by the Court have generally ™

to embody in Bivens-type actions. Thus, the place of the common
law should be the same in § 1983 analysis and Bivens-type analy-
sis. This view is presumably shared by the majority, as it agrees
that the final immunities to be applied should be no different in
Biven-type suits than in § 1983 suits. Maj. op. at 13 n. 7.

*5 341 U.S. 367 (1951).

*6 386 U.S. 547 (1967).

77 490 U.S. 308 (1975).

78 The result of the Court in one case, Scheuer v. Rhodes, 416
U.S. 232 (1974), may be viewed as a departure from the common
law, although it did not so state. In holding high executive offi-
cials subject to qualified immunity, Scheuer may have been a

S7A

paralleled the judgments of the common law does not
mean, of course, that the status of the common law
reppin is 1 agrege but surely does suggest that
e common law, as a startin in i
should not be ‘‘overruled” lightly. gu phnetheneragmam
The absolute immunity of the witness at common
law is as firmly rooted in history and as widely ac-
cepted by the courts as is the absolute common law
immunity that was accepted for legislators in Tenney
for Judges in Pierson, and for prosectors in Inbler.
Immunities for various participants in the judicial
process were already established by courts as early as
the sixteenth century,” and in 1772 Lord Mansfield
announced the comprehensive rule: “Neither party,
witness, counsel, jury nor judge can be put to answer,

withdrawal from the absolute immunity at federal common law
of Barr v. Matteo, 360 U.S. 564 (1959), and Spalding v. Vilas,
161 US. 483 (1386). But even that federal common law was of
relatively recent origin compared to the legislative and judicial
immunities with roots in the seventeenth century : “The [absolute]
executive privilege in defamation actions would appear to be a
judicial creature of less than 65 years’ existence.” Barr vy. Matteo,
360 US. 564, 582 (1959) (Warren, C.J., dissenting opinion). The
majority, op. at 36, highlights Scheuer v. Rhodes, supra, as show-
ing how the Supreme Court departs from the immunities of the
common law when a constitutional right is involved. In fact,
as noted, Scheuer is the only Supreme Court case that does so,
(without expressly acknowledging it either), and, moreover, as
noted, that common law was of recent origin.
Analogous evidence of the importance of the common law in
shaping the law of damage suits under § 1983 and Bivens is that
courts will refer to the common law to formulate the various de-
tails of a constitutional tort action, See, e.g. Dellums v. Powell
No. 75-1974, slip op. at 8 (D.C. Cir. 4 August 1977) (issues of
pleading and proof in First and Forth Amendment claims).
*° See Veeder, Absolute Immunity in Defamation: Judicial Pro-
ceedings, 9 Colum. L. Rev. 463, 474 (1909).

SSA

99 80

civilly or criminally for words spoken in office.
Accepted as “practically [the] universal rule in this
country,” “ this rule of absolute immunity means that
a witness in judicial proceedings cannot be held liable
in civil damages for injury that ensues from any rele-
vant testimony. Of particular significance is that this
rule is also applied as a matter of federal common
law,” which, the majority tells us,” is an important
focus for the formulation of a federal immunity stand-
ard. Absolute witness immunity has been earried into

8° King v. Skinner, Lofft 55, 98 Eng. Rep. 529, 530 (K. B.
1772).

As to just how “universal” the acceptance is, observe the age
(from 1851 to 1907), the scarcity and source (five state and no
federal) of the authorities cited in the majority opinion. More-
over, the one common law case that the majority cites to cast
doubt upon absolute witness immunity, Liles v. Gaster, 42 Ohio
St. 631 (1885), merely reserves the question. The only qualification
on the absolute rule cited, pertinency or relevancy, is one which
appears necessarily inherent in the rule from the outset.

81 Sacks v. Stecker, 60 F. 2d 73, 75 (2d Cir. 1932) (Hand,
A., J.). :

8? See, e.g., Brawer v. Horowitz, 535 F. 2d 830 (3rd Cir. 1976).
Brawer began its analysis of witness immunity in a Bivens-type
suit with an inquiry into the immunity at common law. This in-
quiry, as the majority contends, op. at 12 n. 7, seeks to ascertain
the immunity at federal common law. Brawer found a firm and
established absolute witness immunity, citing, among other au-
thorities, Judge Hand’s conclusion, supra n. 81, that relevant
“words spoken” and “affidavits filed” were entitled to absolute im-
munity in the federal courts.

83 Maj. op. at 12 n. 7. As a starting point of analysis for § 1983
immunities, the Supreme Court does not look exclusively, how-
ever, to the federal common law. For example, Wood v. Strickland,
supra, at 318, expressly relied on state cases in determining the
particular common law immunity. Looking at the § 1983 cases
as a whole, it appears that the Court takes into account both state
and federal common law in ascertaining the common law “tradi-
tion,” which it then decides whether to carry over to § 1983.

89a

the Restatement of Torts“ and has been set out ap-
vrovingly by the commentators as well.* It is notable
that in Imbler itself Justice White wrote that the
need to protect the judicial process at common law
meant that absolute immunity “applied to suits against
witnesses themselves for delivering false and defama-
tory testimony.” *

Do the policies that underlie the common law im-
munity for a witness warrant the continued avail-
ability of absolute immunity in § 1983 or Bivens-type
suits? The policy behind the common law reflects a
balancing process. In the context of a defamation
suit,” Judge Hastie expressed the rationale for absolute
witness immunity as follows: ™

This rule reflects the prevailing co

view that the public 1 neater in feentinn of -
pression by participants in judicial proceedings
uninhibited by any risk of resultant suits for
defamation, outweighs the interest of the indi-
vidual in the protection of his reputation from
defamatory impairment in the judicial forum.

The reason for the public interest in the “freedom of
expression”’ of a witness is that the judgment of the

** Restatement of Torts (Ten. Draft No. 20) § 588.

* See F. Harper & F. James, The Law of Torts, § 5.22 at 424
{ — W. Prosser, The Law of Torts, § 114 at 778 (4th ed.

* Imbler, supra at 439.

. The common law immunity was not confined to defamation
suits but extended, as noted, to any suit for damages arising out
of relevant testimony. Of relevance to the present case is the rule
that “false testimony in a criminal action that results in a con-
viction of the plaintiff does not furnish the basis of a civil suit to
recover damages.” 60 Am. Jur. 2d, Perju
ory » Perjury, §75 (footnotes

** Petty v. General Accident Fire & Life Assura
F. 2d 419, 491 (3rd Cir, 1966). ‘ acta

90a

judicial process itself, the centerpiece of all judicial
immunities, may well be based on the testimony of the
witness and the witness, thus, should be fully en-
couraged to disclose pertinent information. “For a
witness,” Justice White states, ‘this means he must
be permitted to testify without fear of being sued if
his testimony is dishelieved.” ® Full disclosure may be
impaired, in other words, if there can be “intimida-
tion” deriving from “the possibility of civil liability.” °°
Set against the value of full freedom for the wit-
ness is, as Judge Hastie noted, the possible damage,
e.g., to the reputation of others, that may ensue. This
danger has its limits, however, because witnesses are,
of course, “subject to the control of the trial judge
and are subject to contempt citations for misbehavior
in the exercise of the privilege and to prosecution for
perjury if convicted of knowingly giving false testi-
mony.’’™ Thus, with a deterrent already available
against perjury by a witness in the form of criminal
sanctions, the common law regarded the additional
deterrent of having to defend a civil damage suit as
rendering “the risk of self-censorship * * * too
great.” *
In striking the balance in favor of absolute im-
munity, the common law meant in no way to derogate
the duty of the witness to state the facts objectively.
Of course, the witness has no discretion to commit
perjury, but, to borrow from Learned Hand, it might
be “impossible to know whether the claim [of per-
jury] is well founded until the case has been tried.’’ *

8° Jmbler, supra at 439.

% W", Prosser, supra n.85 at 778.

* F. Harper & F. James, supra n. 85 at 424.

* Imbler, supra at 440 (White, J.) :

* Gregoire v. Biddle, 177 F, 2d 579, 581 (2d Cir. 1949), cert.

denied, 339 U.S. 949 (1950).

91a

Such a possibility, Judge Hand concluded (in the con-
text of prosecutorial immunity), could ‘‘dampen the
ardor’’* of even the person intending to perform
truthfully and properly. The witness immunity at
common law is apparently so thorough that it makes
no exeeption for an action where the perjury seems,
on the face of the complaint, to admit of no ambi-
guity, such as when a husband of twenty five years tes-
tifies, for example, that he has never been married.
Even though it might be “‘monstrous to deny re-
covery” * in that case, the common law is so unwill-
ing to expose the honest witness to any civil risk that
it would not allow even that case to go to trial.

The policies underlying common law immunity for a
witness justify the availability of absolute immunity
for a witness sued in a § 1983 or Bivens-type action.
As noted, the common law regarded absolute immu-
nity for the witness as essential to the protection of
the integrity of the judicial process. Similarly, each
time the Supreme Court in a § 1983 suit has con-
sidered the immunities related to the judicial process,
the Court has continued the absolute immunity of the
common law—for judges in Pierson and for prosecu-
tors in Imbler. Indeed, the Imbler Court strongly sug-
gested, both in the majority and separate opinions,
that it would readily extend the full immunity to
grand jurors ” and defense counsel.” The Court’s con-
tinued extension of absolute immunity to all the
participants in the judicial process, which undeniably
includes witnesses, represents a thorough acceptance
of the common law policy that the provision of only

%* Ibid.

% Ibid.

** Imbler, supra at 423 n. 20; Id. at 488 (White, J.)
* Imbler, supra at 426 ; Id. at 439 (White, J.)

257-916—7s——-8

92a

qualified immunity might inhibit the full disclosure
of relevant evidence and impair the judgment of the
court. In each instance the common law policy has
been assessed as a “compelling” enough justification
for the absolute immunity also to be available for

constitutional torts. ¥
The majority gives no reason at all, and none ap-

pears to me, why a witness should be singled out for
less than the full protection afforded all the other
participants.* As for other participants, the possi-

*In terms of policy analysis of witness immunity, the
majority appears to rest its entire argumentation on the follow-
ing enigmatic sentence: “Policy considerations counselling the
insulation of private citizens from civil liability arising from
their performance as witnesses do not apply with equal force
when a complaint charges that constitutional rights have been
violated by a public employee operating from the witness stand.”
Maj. op. at 35 (emphasis original). The exact meaning to be
drawn from this single statement remains unclear to me. There
are two possible meanings that can be inferred; both, however,
are without merit, certainly in this conclusory form.

The first possible meaning is that because appellees allege a
“constitutional” tort rather than a common law tort the signifi-
cance of an absolute witness immunity at common law should be
greatly discounted. I agree with the majority, as I have already
stated, supra at 46-47, that the common law is not binding for a
Bivens-type action, but I hasten to repeat, see supra at 47, that
in virtually all cases, with the possible exception of one, see n. 78
supra, the Supreme Court has adopted the immunity of the com-
mon law. Particularly with functions related to the judicial proc-
ess, Pierson (judges) and /mbler (prosecutors), the Court has
followed the common law immunity even in the setting of a “con-
stitutional tort.” The majority may wish to argue in particular
policy terms why absolute witness immunity is not justified in a
Bivens-type suit, but it fails to do that here. Instead, the major-
ity ignores Tenney, Pierson and Jmbler, where the absolute im-
munities of the common law were all sustained in § 1983 actions,

93a

bility of civil lability for the witness undoubtedly can
be'said to provide some “chill” to the full expression

if it means to rest its case for the rejection of absolute common
law, immunity solely on the fact that a “constitutional tort” is
alleged here.

The second possible meaning of the majority’s key sentence,
quoted above, is that because the witness testifying is a govern-
ment official rather than a private citizen the policy concerns of
the common law, e.g. about the possible inhibition of full disclo-
sure from the threat of civil suit, are not as realistically justified.
The majority provides no support or argumentation at all for this
contention, if, indeed, this is what the majority is advancing. I
would think, as a practical matter, that the policy concerns about
the private citizen have at least as much bearing to the public of-
ficial, Let me take simply one illustration. Behind the concern for
“intimidation” of the witness by threat of lawsuit is the un-
doubted relization of the common law of how burdensome litiga-
tion can be for the private party. Litigation for the public official
is not necessarily any less burdensome: even if government coun-
sel is provided, the long time delay of litigation, with possible
money liability at the end, may be quite unsettling. In /mbler, for
instance, the issue of absolute immunity was not finally deter-
mined until 1976, while the events of the robbery and the trial oc-
curred in 1961; in /mbler, the criminal defendant appealed
through the state courts, sought habeas through the state courts,
sought habeas in the federal courts and then sued the prosecutor.

If a § 1983 suit arising out of a criminal conviction has to awuit
the full exhaustion of remedies on appeal and at habeas, see Guero
v. Mulhearn, 498 F. 2d 1249, 1253, (1st Cir. 1974), then the pattern
of delay in /mbler might not be atypical. Delay, of course, makes
litigation additionally burdensome, particularly for officials wh»
may have left government or taken up other positions, e.g., judz-
ships, as did one of the defendants in this very suit. (William H.
Stafford of the Northern District of Florida; see Briggs v. Staf-
ford, No. 75-1578, a companion case).

This brief line of argument about the burdensomeness of litiga-
tion for officials serves to illustrate that there are a number of
issues, calling for exposition and debate, about whether the policy

94a

of his testimony. Where ‘‘the trier of fact in criminal
cases often would be denied revelant evidence,” ”
as a consequence of the provision of only qualified
immunity, the judgment of the court can plainly be
said to be impaired. The possibility of this “adverse
effect upon the functioning of the criminal justice
system”*” has warranted absolute immunity for
other participants in the judicial process and war-
rants absolute immunity for the witness too.

The witness should not be singled out for lesser
protection than the other participants in the judicial
process because, like those participants, he is also
subject to other checks on the abuse of his power.
Testimony may be excluded from court or tested
under cross-examination and through jury serutiny.
The witness himself is subject to the supervision and
discipline of the court and may even be indicated
and convicted of perjury. Following the reasoning
of the Imbler Court about prosecutorial immunity,
it is fair to say that the existence of those other
checks undermines the argument that the imposition
of civil liability is the only way to prevent a witness
from inflicting constitutional injury through false
testimony.

It is noteworthy that the only other court to con-
sider the liability of a witness in a Bivens-type suit

concerns of the common law towards a witness apply with “equal
force” to government officials ag they do to private parties. If the
majority means to rest its rejection of the common law immunity
on this difference, it is surely obliged to offer more reasons and
support than its summary statement here.

” Imbler, supra at 426.

1 Ibid.

11 See Imbler, supra at 428-29.

95a

had no hesitation in awarding absolute immunity—
Brawer v. Horowitz.” Noting the need for “fearless”
witnesses and the means, other than damage suits,
for deterring perjury, Judge Aldisert, writing for a
unanimous panel of the Third Circuit, concluded: '”
The policy arguments supporting common-

law witness immunity obtain equally to im-

munize a single witness from a Biven-type
action.

This is the holding, and it is good precedent here,
despite the majority’s unwillingness to accept it.’
The majority’s notation that the merits of Brawer
were reached only by assuming arguendo that the
witness was acting under color of law is beside the
point, as Brawer’s assumption of state action does
not invalidate its documentation and reasoning.’”

In addition to the common law policies discussed
above and followed in Brawer, there are reasons why
the absolute immunity should especially be preserved
for the official as witness. Officials who are called as
witnesses have duties in addition to the duty to tell
the truth in their testimony. To the extent these ad-
ditional duties are impaired by qualified immunity,
that is all the more reason to assure them the full
immunities afforded private citizens who have only
their duties as witness.

22 535 F. 2d 830 (3rd Cir. 1976).

203 Td. at 837.

2% Op. at 34-35 n. 15.

*°5 Td. at 36. Indeed, our own circuit en bane proceeded to the
merits of an equal protection challenge by “reserving,” and assum-
ing arguendo, the question of state action. Ripon Society v. Na-
tional Republican Party, 525 F. 2d 567 (1975) (McGowan, J., for
the court).

96a

Let us take the office of the prosecutor, for example.
Suppose as a witness a prosecutor responds to ‘the
judge with very definitive but honest answers, but
later uncovers evidence that puts into serious doubt
the accuracy of his testimony. If he were only «.fforded
qualified immunity, then this warning from Imbler be-
comes very appropriate: ‘‘The possibility of personal
liability * * * could dampen the prosecutor’s exercise
of his duty to bring to the attention of the court or of
proper officials all significant evidence se paraiteth of
innocence or mitigation.” *”

Other officials are subject to similar duties. An FBI
agent, for example, is supposed to reveal to the prose-
cutor mitigating evidence he unearths. Will the FBI
agent be chilled in the exercise of this duty because he
testified, albeit honestly, to the contrary, and fears a
lawsuit for perjury as a witness, defensible only with
a qualified immunity? Considerations such as these,
left unaddressed by the majority, further tipped. the
balance towards absolute immunity in Imbler and, as
shown, counsel us to provide absolute immunity to of-
ficials in their capacity as witnesses.

In sum, the rejection, in toto by the majority of an
absolute immunity for a witness in a Bivens-type, suit
amounts to a tearing of the whole seamless fabric of
absolute immunity granted the other participants in
the judicial process—judges, prosecutors, defense
counsel and jurors. In doing so, the majority clearly
fails to engage in a full and reasoned analysis ofthe
common law immunity, as Imbler requires and, ex-
emplifies. The majority’s result not only clashes with

106 Imbler, supra at 427 n. 25.

97A

the one other Circuit holding on witness immunity
but,-most significantly, undercuts a compelling interest
that is at the heart of the judicial process, that is, that
the integrity of its fact-finding function is best served
by providing absolute freedom from civil suit to its
participants so as to encourage unintimidated dis-
closure and expression.

The majority also argues the point that whatever
the value of the common law immunity of the witness
these policies are “tangential, and essentially irrele-
vant” to this case because the prosecutor here was not
an ‘‘ordinary witness.” In attempting to carve out, an
exception to the absolute immunity of the witness the
majority relies, as we shall see, upon a particular read-
ing of immunity doctrine that was clearly rejected in
Imbler. Noting that Goodwin did not testify “in the
usual sense at a trial or even before grand jurors,” the
majority also recites that it was the judge who asked
the question and that the opportunity for cross-exami-
nation was denied.’” These circumstances demonstrate
for the majority, as it said earlier,“ how the state-
ment was thus “insulat{[éd]” from examination and
appraisal and how, therefore, it warrants only quali-
fied immunity. As I understand this rationale, it goes
more fully as follows: one justification for absolute
witness immunity is that possible perjury by a witness
will be subjected to the “rough-and-tumble” of the
trial process—cross-examination, jury scrutiny, and
the presentation of conflicting evidence, so that when
these corrective elements are lacking, as when cross-
examination is foreclosed, the witness is not really an
“ordinary” witness for purposes of absolute immunity

107 Maj. op. at 31, 32-33.
208 Maj. op. at 28.

98a

and may justifiably be accorded only qualified
immunity. fais

In Imbler, however, the majority expressly rejected
the argument that absolute immunity for a prosecutor
should turn on whether his possible constitutional vio-
lation in particular could be corrected through the
trial process.” As explained in more detail earlier,"
Imbler meant for the prosecutor to have absolute im-
munity even if his constitutional violation had in-
volved the complete suppression of exculpatory evi-
dence, a decision insulated from scrutiny at trial.
Similarly with a witness, the provision of absolute im-
munity should not turn on whether the testimony
could be tested for accuracy through cross-examina-
tion or whether the substance of the testimony itself
amounted to a total suppression of the information
sought. Absolute immunity for a witness is meant to
ensure an unintimidated opportunity to contribute to
the fact-finding of the judicial process; its availability
should not depend on how, in a particular case, that
opportunity was utilized.”

*® Nor did the common law offer less protection to the wit-
ness who was not cross-examined. In fact, the only requirement
of the common law for full protection is that the “witness * * *
must be engaged in giving testimony that has some reasonable
relationship at the case in hand.” F. Harper & F. James,
supra n. 85 at 424.

10 See n. 10 supra and text, supra at 24-26.

*4 Tt thus makes no difference that the judge here asked only
a single question, calling for a simple answer. The common law
did not make an exception even for a witness who appears to have
plainly given a false answer. See supra at 50. However, I do not
understand the majority to be basing its rejection of absolute
witness immunity here upon a “plain perjury” exception that it
may wish to engraft onto the witness immunity doctrine.

994

Such an ad hoc rule, to be applied retroactively, as
the majority enunciates here, would bg totally devas-
tating to any realistic protection by “absolute” (?)
tmmunet y.

The majority’s other argument for finding absolute
witness immunity inapplicable is because “[t]he state-
ment assailed here was prompted by, and directly in-
cidental to, appellant’s status as a prosecutor manag-
ing and administering an investigation.” * Since the
statement was related to his status as an investigator,
as the majority sees it, he then is entitled to only a
qualified immunity.’ Even accepting the majority’s

112 Maj. op. at 32.

™° To begin with, the majority’s view of Goodwin and the grand
jury’s roles and relationships rests on some very fundamental
misconceptions, as I hope I have made clear in Part I, C, supra.
But even to take the majority’s distorted separation of grand
jury functions and the prosecutor's supposedly different im-
munity hinging thereupon, the facts do not bear out the ma-
jority’s claims. The majority says that at the time of the alleged
perjury the grand jury was functioning as an “investigative
tool” for use as discovery into VVAW activities and not as a
“deliberative body” deciding whether to return indictments. Maj.
op. at 26. As suggested earlier, supra n. 11, how then does the
majority explain the uncontested fact that on the same day as
Goodwin's testimony, 13 July 1972, the grand jury returned
indictments against six of the appellees for criminal violations
of eight sections of the U.S. Code?

Astonishingly, the majority cites as evidence of the “investiga-
tive” function of the grand jury on 13 July the fact that “none
of the VVAW members subpoenaed actually testified.” Maj. op.
at 26 (emphasis original). I would think that this fact points in
precisely the opposite direction, that because not a single sub-
poenaed VVAW member was called for inquiry before the grand
jury, the grand jury was not acting primarily as an “investigative
tool” into the VVAW. The more logical conclusion to draw from
this fact—and from the fact that the indictments were returned
on the day of the alleged perjury—is that the grand jury was in-

1004

characterization of Goodwin’s underlying status-as an
“investigator,” it appears that the majority’s analysis
simply begs the question of witness immunity. If a
witness is only entitled to the immunity of his under-
lying status, then the majority ts really rejecting ab-
solute witness immunity entirely as a special immu-
nity that attaches to a certain class of participants in
the judicial process. A police officer testifying about a
search and seizure, for example, may only have a
qualified immunity, as a police officer, but that does
not mean he is not entitled to absolute immunity, as a
witness. If the underlying status is dispositive of the
degree of witness immunity, qualified or absolute, then
the majority is really saying that there should be no
special witness immunity at all.

Thus, its view that Goodwin in this particular case
should not have absolute witness immunity is based
upon its general position that no witness, gua witness,
should be afforded absolute immunity where a “con-
stitutional tort’’ is involved. And THAT is an idea
whose time has not hitherto come in any court. I am
not ready for it here.

D. Absolute Counsel Immunity

Still another reason that the majority advances for
considering witness immunity inapt is that, for all
practical purposes, Goodwin could readily have given
the same answer from the counsel table, “as an officer
of the court,”** as he gave from the witness stand.

deed, functioning in its role as a deliberative body deciding
whether to return indictments. If there is any validity whatsoever
in the principle of separating grand jury functions espoused by
the majority, the facts here dictate a conclusion different from
that reached by the majority.

™4 Maj. op. at 32.

101A

There should be no difference, the majority contends,
in the scope of immunity conferred for the same state-
ment whether the prosecutor is on the witness stand
or at the counsel table. With that last general state-
ment I am in agreement, for the prosecutor from the
counsel table, as “an officer of the court,’”’ is under no
less of an obligation to tell the truth than a prosecutor
on the witness stand. But the problem with the major-
ity’s conclusion, that the witness here, therefore,
should not have absolute immunity, is that there is
also an established absolute immunity for all relevant
statements made by counsel in court. In other words,
if Goodwin had made the same statement from the
counsel table rather than from the witness stand, he
would have absolute immunity as counsel in a judicial
proceeding, even apart from whatever protection is
available under Imbler. Goodwin did make the state-
ment in the momentary capacity of a witness, so this
dissent has taken up that imnmamnity in some detail, but
if the majority wishes to contend that the witness im-
munity here should be the equivalent here of counsel
immunity, I am willing to contend as well that absolute
counsel immunity would extend to Goodwin’s state-
ment from the table, if that had happened instead.

As with judges and witnesses, the common law
afforded absolute immunity to action taken by counsel
in judicial proceedings. Indeed, as Prosser ex-
plains,” the “privilege covers anything that may be
said in relation to the matter at issue, whether it be
in the pleadings, in affidavits, or in open court.’’ In
common with the other immunities, absolute counsel
immunity was and is based on the policy of protect-
ing the judicial process. And with the other immuni-

115 See W. Prosser, supra n. 85 at 778.

102A

ties, it is equally as well settled.” In the context of a
§ 1983 or Bivens-type suit, this absolute immunity at
common law should carry over, even as against con-
stitutional torts, precisely because of the compelling
interest, as illustrated by the common law, in protect-
ing the judicial process. I have explained these inter-
ests and policies in more detail in my argument
earlier that the absolute witness immunity of common
law should also be available in § 1983 and Bivens-type
suits,” and need not repeat them here. Suffice it to
say that Goodwin would surely have been acting as
counsel in the case if the judge had asked him a
question during a grand jury proceeding, even apart,
of course, from whether he was acting as a prosecutor
in the Jmbler sense. At common law, as noted, all
relevant statements of counsel, be they termed ad-
voeacy or investigation, within the confines of the
courtroom process were entitled to absolute protec-
tion. If counsel immunity is to be carried over for
constitutional torts, as would be expected under the
unwavering protection afforded the judicial process
by the Supreme Court, then there is simply no basis
for assuming that Goodwin’s statement, if made from
the counsel table instead, would be entitled to only
qualified immunity.”

"6 See F. Harper & F. James, supra n. 85 at 423-24, and cases
there cited.

7 See supra at 48-53.

"8 The sole question for decision in this case is whether Good-
win is entitled to absolute or qualified immunity. Having decided
that. only qualified immunity is appropriate here, the majority
seeks in addition to define the exact scope of that immunity on
remand: “[H]is protection from liability depends upon a show-
ing that he entertained a good-faith, reasonable belief in the
truth of his response to the federal district judge in Florida.” Maj.
op. at 10, Believing that the definition of good-faith immunity

1034

may be more complicated than the majority appears to recognize,
I think that the formulation of this definition should be left for
the trial judge in the first instance. This is so particularly since
the exact definition of the immunity is unnecessary and irrelevant
to the question for decision.

The problem that I have with the majority's definition is that
it does not focus on whether Goodwin may have had a reasonable,
good faith belief that his action did not violate the constitutional
rights of appellees. The leading cases on the immunity standara
traditionally inquire into the reasonableness and the good-faith
belief that one’s action did not violate the Constitution. See, e.g.,
Wood v. Strickland, 420 U.S. 308, 321-22 (1975); Zweibon v.
Mitchell, 516 F. 2d 594, 671 (D.C. Cir. 1975) (en bane). Instead,
the majority ignores the Constitutional dimension to the qualified
immunity and inquires only as to the good-faith belief in the ac-
curacy of the testimony. The majority is thus assuming that per-
j

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0701%3A1. Public record. Not legal advice.