Amicus Curiae Brief — Burns v. Reed

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QUESTION PRESENTED

Whether a prosecutor is entitled to absolute immunity

from suit for damages under 42 U.S.C. 1983 for giving

legal advice to police officers about the conduct of their

investigation and for later eliciting testimony during a

probable cause hearing to obtain a search warrant.

(1)

TABLE OF CONTENTS

Page

Interest of the United Stateeeeeeeees 1

ä

ee 8

Argument:

Prosecutors are absolutely immune from suit for

damages for giving legal advice to police officers

about the conduct of criminal investigations and for

participating in judicial proceedings related to such

ES A a 10

A. Under this Court’s decisions, absolute immunity

shields the performance of those prosecutorial

functions that directly affect the fairness and

integrity of the judicial process 10

B. Giving legal advice to police officers about the

conduct of an investigation is integral to the

prosecutor’s functions of screening cases for

formal presentment of charges and later judi-

cial proceedings and of safeguarding the fair-

ness of the criminal justice process 13

C. Eliciting testimony during a probable cause

hearing to obtain a search warrant is also in-

tegrally related to the prosecutor’s essential

e r...... 23

r é g . ͤ 222 26

TABLE OF AUTHORITIES

Cases:

Anderson v. Creighton, 483 U.S. 635 (1987) 19, 20, 21

Berger v. United States, 295 U.S. 78 (1935) 17

Bivens v. Six Unknown Federal Narcotics Agents,

e 1

Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872) 11

Briscoe v. LaHue, 460 U.S. 325 (19833 12

Butz v. Economou, 438 U.S. 478 (1979) 2,12

Cook v. Houston Post, 616 F.2d 791 (Sth Cir.

, /.. 14

IV

Cases—Continued : Page

Doe v. McMillan, 412 U.S. 306 (1973 12

Ferri v. Ackerman, 444 U.S. 193 (19799 23

Forrester v. White, 484 U.S: 219 (1988) 11, 12, 15

Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.

1979), cert. denied, 453 U.S. 913 (198177 14

Gerstein v. Pugh, 420 U.S. 103 (1975) 22

Gobel v. Maricopa County, 867 F.2d 1201 (9th Cir.

RR ͤ Ä ͤ ee 14

Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983), cert.

denied, 465 U.S. 1100 (198: 14

Hardin v. Hight, 106 Ark. 190, 153 S.W. 99

Err 25

Harlan v. Jones, 16 Ind. App. 398, 45 N.E. 481

. r ee ee ee ee 26

Harlow v. Fitzgerald, 457 U.S. 800 (1982) 1-2, 12, 19

Haynesworth v. Miller, 820 F.2d 1245 (D.C. Cir.

111 ˙ — inaiiiatieatat icin mnemamatinmces 20

Imbler v. Pachtman, 424 U.S. 409 (1976) ............... passim

Malley v. Briggs, 475 U.S. 335 (1986) 24, 25

Marx V. Gumbinner, 855 F.2d 783 (11th Cir.

8 ** 16

Mitchell v. Forsyth, 472 U.S. 511 (1988) 12

Morrison v. Olson, 487 U.S. 654 (198) 15

Myers v. Morris, 810 F.2d 1437 (8th Cir.), cert.

denied, 484 U.S. 828 (1987) )))) 17

Pierson v. Ray, 386 U.S. 547 (1967) 11, 25

Rex v. Teeples, 753 F.2d 840 (10th Cir. 1985) 19

Robinson v. Via, 821 F.2d 913 (2d Cir. 1987) 19

Rock v. Arkansas, 483 U.S. 44 (1987) 16

Rowley v. State, 483 N.E.2d 1078 (Ind. 1985) 16

Stump v. Sparkman, 435 U.S. 349 (19789) 11

Tiffany Fine Arts, Inc. v. United States, 469 U.S.

r ER OLS 13

United States v. Hasting, 461 U.S. 499 (1983) 22

United States v. Reliable Transfer Co., 421 U.S.

e EES SRR So 2 13

Westfall v. Erwin, 484 U.S. 292 (1988) 3 12

Wolfenbarger v. Williams, 826 F.2d 930 (10th Cir.

1 ̃ —— —.. ͤ ( — 17

Young v. United States ex rel. Vuitton et Fils

er 17, 22

V

Statutes, regulations, and rules: Page

... 1

Ind. Code Ann. (Burns 1985):

F eee oe SE 16

, stiieuemeniasesia 24

ET ee 24

§ 35-33-5-5 (b) (& Supp. 1990) ........................... 26

See 22

r 5 16, 22

§ 35-43-4-4 (h) (& Supp. 1990) .. 26

28 C. F. R.:

e centniatuniennions 22

r PON rae ae eS 22

a emo 23

r ee ee aro 23

Fed. R. Civ. P.:

SREY Uae eon Trae Team 5

c 5

Fed. R. Crim. P.:

Z 1 22

r a anal 24

Zr 24

. 26

e . x 22

Ind. Rules of Professional Conduct 3.8, comment

r —T—T—T—T—TVV—T—V—V— 17

ABA Model Code of Professional Responsibility

(1989):

. 22

r 17

1 ABA Standards for Criminal Justice 3-3.4 (2d

e nn a Ee Es anne 15-16, 17, 23, 24

Miscellaneous:

J. Jacoby, The American Prosecutor: A Search

— rn 21

Kress, Progress and Prosecution, 423 Annals 99

0 21

Miscellaneous—Continued:

Langbein, The Origins of Public Prosecution at

Common Law, 17 Am. J. Legal Hist. 313

% SS OS A= SE ee

McDonald, The Prosecutor’s Domain, in The Pros-

cutor (W. McDonald ed. 19799

National District Attorneys Ass’n, National Pros-

ecution Standards (1977) 0.

R. Van Duizend, L. Sutton & C. Carier, The

Search Warrant Process (1985)

Page

21

21

16, 23

In the Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1715

CATHY BURNS, PETITIONER

Vv.

Rick REED

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents a question this Court reserved in

Imbler v. Pachtman, 424 U.S. 409, 431 n.33 (1976):

whether a prosecutor has absolute immunity from suit

for damages under 42 U.S.C. 1983 for giving legal advice

to police officers about the conduct of their investigation

and for later eliciting testimony during a probable cause

hearing to obtain a search warrant. Although federal

officers are not subject to suit under Section 1983 for

constitutional violations, there is an implied right of ac-

tion against them for violations of constitutional rights,

see, e.g., Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971), and this Court has stated

that the scope of immunity available to federal officers in

such an action is generally the same as that available to

state officials sued under Section 1983. See Harlow v.

(1)

9

oo

Fitzgerald, 457 U.S. 800, 818 n.30 (1982); Butz v.

Economou, 438 U.S. 478, 504 (1978). The United States

thus has a direct and substantial interest in the Court’s

resolution of the question presented. The disposition of

this case is likely to have a significant effect on the lia-

bility of federal prosecutors sued for damages as a result

of actions taken in the performance of their official

duties.

STATEMENT

1. On September 2, 1982, petitioner reported that an

individual had entered her home in Muncie, Indiana,

knocked her unconscious, and then shot and wounded her

two children. During their investigation, Muncie police

officers Paul Cox and Donald Scroggins determined that

petitioner herself was “their prime suspect” in connec-

tion with the incident, Pet. App. 2a, even though she had

no difficulties with polygraph and voice stress examina-

tions, provided exculpatory handwriting exemplars, and

held to her story during repeated interviews. Cox and

Scroggins apparently believed that petitioner was a “mul-

tiple personality.” Ibid.

Cox and Scroggins decided to interview petitioner

under hypnosis. On September 21, 1982, Scroggins tele-

phoned respondent Rick Reed, the Chief Deputy Prosecu-

tor for Delaware County, at his home and asked him

about the propriety of such an interview. After hearing

that petitioner was the officers’ principal suspect and that

she alone could provide “additional information” about

the crime, respondent told Scroggins that he should pro-

ceed with the interview as planned. Pet. App. 2a-3a.

Cox and Scroggins then obtained petitioner’s consent

and hypnotized her at the police station. During the

interview, petitioner described the intruder and identi-

fied her as “Katie.” She also referred to herself as

1 Respondent was the “police liaison attorney” between the police

department and the county prosecutor’s office. Pet. App. 2a. Re-

spondent had no prior involvement in the officers’ investigation.

Tr. 65, 111.

“Katie,” and the officers interpreted that reference as

supporting their theory that petitioner had committed the

crime and that she suffered from a personality disorder.*

Once taken out of hypnosis, petitioner again told the offi-

cers that she had had nothing to do with the crime. Pet.

App. 3a.

Cox and Scroggins decided to keep petitione. in custody

and sought respondent’s advice about whether there was

probable cause to arrest her. Respondent met the officers

at the police station on the night of September 21. Offi-

cer Cox explain fed] to him what [the officers] had de-

veloped as a result of the hypnotic session and asked!

if he felt like we had probable cause to * * * arrest

[petitioner].” Tr. 107. Respondent told the officers that

they “probably had probable cause for the arrest.” Tr.

108. As a result, the officers placed petitioner under

arrest.“

The following day, September 22, respondent, accom-

panied by Officer Scroggins, appeared before a county

court judge to obtain a warrant to search petitioner’s

home.* Under respondent’s questioning, Scroggins testi-

fied at the probable cause hearing that petitioner, during

the September 21 interview, had confessed to shooting

her children. Neither Scroggins nor respondent explained

the peculiar circumstances of the interview, i. e., that peti-

2 The officers recorded the interview on videotape. According

to petitioner, that tape shows that Officer Cox gave petitioner a

“post-hypnotic suggestion * * that [she] would not remember

the hypnosis but would cooperate fully with the police in their

investigation.” Pet. 3; see Pet. Br. 4. Moreover, according to the

district court, the officers had “conned [petitioner| into submitting

to hypnosis, and then suggested a number of things to her when

she gave answers that they didn't like.” Pet. App. 16a.

3 Petitioner was later taken to a state hospital, where she spent

four months in a psychiatric ward. During that stay, medical and

psychological experts concluded that petitioner did not suffer from

a personality disorder. Pet. App. 4a.

* Respondent had been instructed to assist the police in procuring

the search warrant. Tr. 134-135.

4

tioner had been hypnotized. As a result of Scroggins’

testimony, the judge issued the search warrant. Pet.

App. 3a, 19a-22a.

On September 28, the county court judge issued a

formal warrant for petitioner’s arrest on charges of at-

tempted murder. The court issued that warrant based

on the affidavit of Jack Stonebraker, an investigator for

the Delaware County Prosecuting Attorney. That affi-

davit recounted petitioner’s alleged confession, but, like

Seroggins’ earlier testimony, did not mention the cir-

cumstances of the interview. Pet. 3a-4a.

Petitioner was charged under Indiana law with at-

tempting to murder her two children and was ordered to

stand trial.“ Before trial, petitioner filed a motion to

suppress the statements given under hypnosis. The state

trial court granted that motion. Since those statements

apparently were the linchpin of the State’s case, the

Delaware County Prosecuting Attorney’s Office dismissed

all criminal charges against petitioner. Pet. App. 4a.

2. In January 1985, petitioner filed a federal court

action against respondent, Scroggins, Cox, Stonebraker,

the Muncie Police Department, and other Muncie police

officials. With respect to respondent, petitioner claimed

that his approving the police officers’ request to interview

her under hypnosis, participating in her arrest, and later

eliciting misleading testimony about that interview dur-

ing the probable cause hearing violated her constitutional

As a result of petitioner's confinement to the psychiatric ward,

state authorities sought and obtained temporary custody of her

two children. After the criminal charges were dismissed, peti-

tioner’s older child was returned to petitioner’s custody in 1986;

as a result of his father’s demands, the younger child evidently

has not been allowed to live with petitioner. See Pet. 4; Pet. Br.

5-6.

Petitioner also lost her job as a radio dispatcher for the Muncie

Police Department as a result of this episode. She was unable to

regain that position after the criminal charges were dismissed.

Pet. 4-5; Pet. Br. 6.

rights. Compl. J 47; see id. 171, 32.“ Petitioner sought

compensatory and punitive damages. Id. J 47.

Before trial, respondent filed a motion for summary

judgment, contending that he was entitled to absolute

immunity from liability in damages for his conduct as a

prosecutor.’ The court denied that motion, finding that,

on the record presented to date, it was not clear whether

respondent’s alleged conduct fell within the scope of his

prosecutorial duties. The court thus concluded that there

were genuine issues of material fact that warranted pro-

ceeding to trial. Pet. App. 5a.*

After presentation of petitioner’s case, the district

court granted respondent’s motion for a directed verdict,

holding that Reed was absolutely immune from suit for

“giving legal advice and presenting a matter in court.”

Pet. App. 17a. The court found that respondent’s ap-

® Petitioner also claimed that respondent defamed her by stating

publicly, after the charges were dismissed, that he continued to

believe she was responsible for the crime. Compl. { 46. Since

petitioner presented no evidence on that claim the district court

granted respondent's motion for a directed verdict. Pet. App. 16a.

Petitioner sought no further review of that claim.

7 Respondent had also filed a motion to dismiss under Fed. R.

Civ. P. 12(b)(1) and (6). The district court denied that motion,

concluding that petitioner had alleged violations of federally pro-

tected constitutional rights and that she had raised claims that

principles of absolute and qualified immunity did not necessarily

bar. Order 7-9, Burns v. Cox, No. IP 85-155-C (S.D. Ind. Feb. 25,

1986).

In his motion for summary judgment, respondent argued in the

alternative that he was entitled to qualified immunity. The district

court denied that claim, concluding that respondent's failure to

make known to the county court judge all the pertinent facts in

the course of applying for the search warrant may have violated

clearly established federal law. Order 6-8, 10, Burns v. Coz, No.

IP 85-155-C (S.D. Ind. May 1, 1987).

»The court also denied the motions for summary judgment filed

by Scroggins, Cox, and Stonebraker. As a result, those defendants

settled with petitioner and agreed to pay her a total of $250,001.

Pet. 2; Pet. App. 5a. The district court later dismissed petitioner’s

claims against all defendants except respondent. See Pet. 2.

6

proval of the officers’ request to interview petitioner

under hypnosis amounted to “giving legal advice.” Id.

at 15a. With respect to respondent’s statement to the

officers that they had probable cause to arrest petitioner,

the court similarly found that this advice was his “legal

opinion.” Jd. at 16a. Finally, with respect to respond-

ent’s participation in the judicial hearing, the court found

that he “was doing his job as a deputy prosecuting at-

torney in presenting that evidence. Even though it was

fragmentary and didn’t go far enough, he did it as a

part of his official duties.” Jbid.

3. The court of appeals affirmed. Pet. App. Ia-14a.

It stated that, under Jmbler v. Pachtman, 424 U.S. 409

(1976), the scope of absolute immunity accorded to a

prosecutor’s conduct required consideration of three fac-

tors: (1) whether there is a historical or common law

basis for the asserted immunity; (2) whether the offi-

cial’s actions subject him to the risk of vexatious litiga-

tion; and (3) whether there are safeguards against the

official’s abuse of his authority. Pet. App. 9a & n.4.

Turning to that analysis, the court admitted that its

review of the historical or commonlaw [sic] basis

for the immunity in question does not yield any di-

rect support for the conclusion that a prosecutor’s

immunity from suit extends to the act of giving

legal advice to police officers.

Pet. App. lla. Borrowing from Indiana common law,

however, the court determined that “the dispositive ques-

tion is whether the conduct of the prosecutor is of a judi-

cial nature and requires the prosecutor to exercise anal-

ogous judgment.” Id. at lla-12a. Here, the court found

that when a prosecutor provides legal advice to police, he

does function ]] in a manner similar to both [his] role

as a prosecutor and to that of a judge.” Id. at 12a.

With respect to the second factor—the risk of vexatious

litigation—the court had “little doubt that a prosecutor’s

risk of becoming entangled in litigation based on his or

7

her role as a legal advisor to police officer [s] is as likely

as the risks associated with initiating [a] prosecution.”

Pet. App. 12a. Finally, the court found that there were

“sufficient checks upon the prosecutor to prevent abuses

of the authority to render legal opinions free from lia-

bility.” Id. at 13a. The court pointed to the judicial

process itself, the electorate, and professional disciplinary

rules. Accordingly, the court held that “a prosecutor

should be afforded absolute immunity for giving legal

advice to police officers about the legality of their prospec-

tive investigative conduct.” Ibid.“

On the record presented, the court found it “apparent

that [respondent] was rendering legal advice to the offi-

cers.” Pet. App. 13a.“ The court therefore held that he

was entitled to absolute immunty from suit.“

The court made clear, however, that “a prosecutor steps out-

side of his * * * quasi-judicial role when he * * * actually partici-

pates in investigative conduct * * * [and that] such conduct is not

accorded absolute immunity.” Pet. App. 13a.

The court, in a brief footnote, rejected petitioner's contention

that respondent’s “act presenting evidence before the county

judge in the probable se hearings was part of the investigative

stage of the case.” Pet, App. lla n.6. The court held that, under

Imbler v. Pachtman, 424 U.S. at 431, respondent was absolutely

immune from suit for such conduct taken “in initiating a prosecu-

tion and in presenting the states case.” Pet. App. lla n.6.

Judge Ripple filed a short concurring opinion, emphasizing that

the court had held only that “a prosecutor enjoys absolute immu-

nity with respect to legal advice given to law enforcement officers

* * * [and did] not hold that such absolute immunity necessarily

extends to situations in which the prosecutor goes beyond render-

ing legal advice and assumes responsibility for the management of

the investigation.” Pet. App. 14a.

8

SUMMARY OF ARGUMENT

A. The scope of absolute immunity for the perform-

ance of prosecutorial functions should be determined by

the need to protect those functions that directly affect the

fairness and integrity of the judicial process. As this

Court recognized in Jmbler v. Pachtman, harassment of

a prosecutor by unfounded litigation could divert his

energies, cause him to lose his independence of judgment,

and thus have an adverse effect on the functioning of the

criminal justice system. Even those prosecutorial activi-

ties that occur at the investigative stage, and that aid in

the investigation, may require the protection of absolute

immunity if they are “intimately associated with the

judicial phase of the criminal process.” Imbler v. Pacht-

man, 424 U.S. at 430.

In light of those principles, the inquiry in each case

should be whether the threat of a damages action will

unduly chill the exercise of the prosecutor’s judgment

and, if so, whether the fairness and integrity of the

judicial process itself is also threatened. Also relevant

to the inquiry are the insights afforded by consideration

of practices and precedents at common law, and the ex-

istence of available alternatives to a damages remedy for

the correction and deterrence of official misconduct.

Under this framework, the activities challenged here war-

rant absolute immunity from suit.

B. When a prosecutor provides legal advice to police

officers in connection with an investigation, the advice is

integral to, and in furtherance of, his core functions of

screening cases for formal presentment and of safe-

guarding the fairness of the criminal justice process.

The fact that such advice occurs at the investigative

stage is no more determinative of absolute immunity

than the fact that, at that stage, a judge issues a search

warrant or supervises a grand jury. The critical con-

sideration is that the prosecutor’s assessment of the legal

consequences of police investigative conduct is directly

related to his obligation to screen and develop cases for

9

trial. Similarly, this assessment of the existence of prob-

able cause to arrest is integral to the decision to file

formal charges and to the admissibility at trial of evi-

dence seized in the course of the arrest. Moreover, the

role of the prosecutor in furnishing such advice inter-

poses a check on law enforcement activity and bolsters

the fairness of the criminal justice process. The avail-

ability of damages actions for the giving of such advice

would seriously threaten to divert the time and energy

of the prosecutor, might discourage him from acting as

a check on the activities of the police, and, most im-

portantly, might substantially affect the exercise of his

judgment in deciding whether to bring formal charges,

and how to proceed once those charges have been brought.

Although there is no clear common law tradition with

respect to the prosecutor’s role in providing legal advice,

that history should not be controlling. The office of pro-

fessional public prosecutor was largely unknown at

English common law, and in this country, the office was

largely confined to the accusatory stages of the criminal

process until relatively recent times. But the importance

of the prosecutor’s role in the investigative stage, and its

close relation to his more traditional accusatory role,

are now widely recognized.

Recognition of absolute immunity in the circumstances

of this case is supported by the availability of alterna-

tive means of correction and deterrence. Those means

include judicial review of police conduct in both civil

and criminal proceedings, the exercise of judicial super-

visory power to correct prosecutorial abuses, and the

various avenues for subjecting prosecutors to profes-

sional discipline.

C. When a prosecutor elicits testimony during a prob-

able cause hearing to obtain a search warrant, he is also

entitled to absolute immunity from liability for damages.

His participation in the obtaining of the warrant is an

integral part of his responsibility to screen and prepare

cases for later judicial proceedings, and his participation

also furthers his role in safeguarding the criminal jus-

tice process. As with legal advice, the availability of

10

civil damages actions might deter prosecutors from per-

forming this valuable function—a function that is clearly

of importance to the court’s understanding of the need

for a warrant and the sufficiency of the application.

The basis for absolute immunity here is closely ana-

logous to the common law immunity afforded to prose-

cutors from actions for malicious prosecution. And again,

as in the realm of legal advice, there are significant al-

ternative means of correcting and deterring prosecutorial

abuse.

ARGUMENT

PROSECUTORS ARE ABSOLUTELY IMMUNE FROM

SUIT FOR DAMAGES FOR GIVING LEGAL ADVICE

TO POLICE OFFICERS ABOUT THE CONDUCT OF

CRIMINAL INVESTIGATIONS AND FOR PARTICI-

PATING IN JUDICIAL PROCEEDINGS RELATED TO

SUCH INVESTIGATIONS

A. Under This Court’s Decisions, Absolute Immunity

Shields The Performance Of Those Prosecutorial Func-

tions That Directly Affect The Fairness And Integrity

Of The Judicial Process

1. In Imbler v. Pachtman, 424 U.S. 409, 431 (1976),

this Court held that “in initiating a prosecution and in

presenting the State’s case, the prosecutor is immune

from a civil suit for damages under 42 U.S. C.] 1983.”

In so holding, the Court concluded that such activities

“were intimately associated with the judicial phase of

the criminal process, and thus were functions to which

the reasons for absolute immunity apply with full force.”

Id. at 430. Those reasons included the “concern that

harassment by unfounded litigation would cause a de-

flection of the prosecutor’s energies from his public du-

ties, and the possibility that he would shade his decisions

instead of exercising the independence of judgment re-

quired by his public trust,” id. at 423, the concern that

such litigation “could have an adverse impact upon the

functioning of the criminal justice system,” id. at 426,

11

and the availability of other checks on prosecutorial mis-

conduct short of civil damages actions, id. at 429.

As this Court has recognized, the prosecutor’s institu-

tional role includes a variety of responsibilities beyond

the filing of criminal charges and presenting the State’s

case in the courtroom. In Imbler v. Pachtman, for exam-

ple, the Court noted that the prosecutor’s task may

“cast him in the role of an administrator or investiga-

tive officer,” 424 U.S. at 430-431, and even the purely

advocatory functions of initiating and presenting a case

may require preliminary “actions apart from the court-

room,” id. at 431 n.33. In Imbler, however, the Court

had no occasion to determine the issues presented here—

whether and to what extent absolute immunity shields

these prosecutorial functions.

In approaching these issues, we recognize the Court’s

unwillingness to give expansive scope to the concept of

absolute immunity. See Forrester v. White, 484 U.S.

219, 224 (1988). As in other contexts, the scope of such

absolute prosecutorial immunity must be “justified and

defined by the functions it protects and serves, not by

the person to whom it attaches.” Id. at 227. Under such

a functional approach to absolute immunity, it is ad-

mittedly difficult to draw any broad generalizations re-

garding which of the prosecutor’s various official tasks

warrant protection. Nonetheless, the Court’s unwavering

concern with protecting the exercise of those functions

that directly affect the fairness, accuracy, and integrity

of the judicial process provides the pertinent benchmark.

The Court has long held that judges may not be sub-

jected to civil suit for the exercise of decisionmaking

authority that colorably falls within their jurisdiction

and is tied to their role in the judicial process. E. g.,

Forrester v. White, supra; Stump v. Sparkman, 435 U.S.

349 (1978); Pierson v. Ray, 386 U.S. 547 (1967); Brad-

ley v. Fisher, 80 U.S. (13 Wall.) 335 (1872). The Court

has accorded trial witnesses similar protection, princi-

pally to insure that the integrity of the judicial process

is not impaired by witnesses’ fears that accurate and

12

complete testimony will expose them to damages actions.

E. g., Briscoe v. LaHue, 460 U.S. 325 (1983). Moreover,

although the full scope of prosecutorial immunity is not

settled, Imbler makes plain that—at a minimum—civil

damages liability may not be based on the performance of

those prosecutorial functions that are “intimately asso-

ciated with the judicial phase of the criminal process“

ivi Hity. Imbler v. Pacht-

man, 424 U.S. at 430; see Butz v. Economou, 438 US.

478, 516-517 (1978).

2. This Court’s functional approach and its overarch-

ing concern with preserving the integrity of the judicial

process suggest the appropriate framework for deter-

mining the scope of absolute immunity in this case. That

framework calls for the Court first to identify the par-

ticular prosecutorial functions implicated by the chal-

lenged conduct. The Court should then assess whether

the specter of a damages action will unduly hamper the

prosecutor’s exercise of those functions and, if so, will

ultimately impair the fairness and integrity of the judi-

cial process itself. See, e.g., Westfall v. Erwin, 484 U.S.

292, 295-296 & n.3 (1988); Forrester v. White, 484 U.S.

at 223-224; Harlow v. Fitzgerald, 457 U.S. 800, 811-812

(1982); Butz v. Economou, 438 U.S. at 511-517; Doe v.

McMillan, 412 U.S. 306, 319-320 (1973). The Court

should next consider the historical materials—whether

there were analogous practices and precedents at com-

mon law and whether those practices and precedents cast

light on the protection to be afforded. Finally, the Court

should consider the extent to which alternatives to a

damages remedy can rectify and deter misuse of prosecu-

torial authority. See, e.g., Mitchell v. Forsyth, 472 US.

511, 521-522 (1985); Briscoe v. LaHue, 460 U.S. at 330-

336; Imbler v. Pachtman, 424 U.S. at 421-429.

Under this framework, respondent’s challenged pros-

ecutorial activities warrant absolute immunity from suit

for damages. Those activities—giving legal advice to

police officers about the conduct of an investigation and

later participating in a judicial proceeding to obtain a

13

search warrant—are integral to core prosecutorial func-

tions, namely, screening cases for formal presentment of

charges and later judicial proceedings and safeguarding

the fairness of the criminal justice process. Exposing

such conduct to the intimidation and harassment of civil

litigation would thus undermine the judicial process

itself—a result not at all compelled by relevant common-

law principles. Finally, there are other means available

—short of a civil damages remedy—to provide adequate

legal redress for injuries arising from prosecutors’ mis-

conduct in discharging their responsibilities.

B. Giving Legal Advice To Police Officers About The Con-

duct Of An Investigation Is Integral To The Prosecu-

tor’s Functions Of Screening Cases For Formal Pre-

sentment Of Charges And Later Judicial Proceedings

And Of Safeguarding The Fairness Of The Criminal

Justice Process

1. Petitioner first seeks to hold the prosecutor liable

for injuries arising out of his legal advice to the police

officers during the course of their investigation, i.e., his

approval of the officers’ request to question petitioner un-

der hypnosis and his later advice to the officers that there

was probable cause to arrest her.“ In petitioner’s view

(Br. 17-22), such conduct on behalf of a prosecutor

merely furthers a police investigation and thus falls out-

side the scope of absolute immunity recognized in Imbler.

12 Both the district court, Pet. App. 15a-17a, and the court of

appeals, id. at 13a, expressly found that respondent’s challenged

conduct amounted to the giving of “legal advice.” Petitioner has

offered no persuasive reason to challenge that factual finding con-

curred in by both lower courts. See, e.g., Tiffany Fine Arts, Inc.

v. United States, 469 U.S. 310, 317-318 n.5 (1985); United States

v. Reliable Transfer Co., 421 U.S. 397, 401 n.2 (1975).

In the district court, petitioner also sought relief for respond-

ent’s alleged role in securing a warrant for her arrest. See Compl.

"34. The district court apparently rejected that claim at some

point before it granted respondent’s motion for a directed verdict.

See Tr. 199, 205. Petitioner has not raised that claim before this

Court.

14

At the outset, petitioner’s labelling of conduct as in-

vestigative” or “advocatory” is largely beside the point,

since it ignores the particular activity’s relation to the

functions entrusted to the prosecutor and the significance

of those functions in the criminal justice process. Cf.

Gray v. Bell, 712 F.2d 490, 499 n.21 (D.C. Cir. 1983),

cert. denied, 465 U.S. 1100 (1984) (rejecting conten-

tion that prosecutorial immunity turns on whether con-

duct can be labelled advocatory, investigatory, or admin-

istrative). Certain activities in the course of an investi-

gation may be crucial to the prosecutor’s role in screen-

ing a case or preparing for trial. Indeed, as this Court

has noted, [preparation both for the initiation of the

criminal process and for a trial, may require the obtain-

ing, reviewing, and evaluating of evidence.” Imbler v.

Pachtman, 424 U.S. at 431 n.33. Accordingly, lower

courts have recognized that the core prosecutorial func-

tions protected by Imbler's absolute immunity encompass

“investigatory” activity that is needed to evaluate and

prepare a criminal prosecution. See, e.g., Gobel v.

Maricopa County, 867 F.2d 1201, 1204 (9th Cir. 1989) ;

Cook v. Houston Post, 616 F.2d 791, 793 (5th Cir. 1980) ;

Forsyth v. Kleindienst, 599 F.2d 1203, 1215 (3d Cir.

1979), cert. denied, 453 U.S. 913 (1981). Thus, the cen-

tral question is not, as petitioner asserts, whether the

activity can be characterized as “investigatory”. Rather,

the inquiry centers on whether the activity at issue fur-

thers a prosecutorial function that must be shielded from

vexatious damages actions in order to protect the fair-

ness and integrity of the judicial process.

Petitioner’s amici (ACLU Br. 15-17) similarly err in

contending that when a prosecutor gives legal advice to

the police in connection with a criminal investigation, the

advice is not a “uniquely prosecutorial function” man-

dated by the judicial process but is instead more closely

allied to law enforcement functions that have been af-

forded only qualified immunity. This Court has empha-

sized that absolute immunity must be determined by “the

nature of the function performed, not the identity of

15

the actor who performed it * * *.” Forrester v. White,

484 U.S. at 229. To be sure, if the various participants

in the criminal justice system performed functions that

were not only characteristic of their office but also mu-

tually exclusive, a “uniquely prosecutorial” test might

have some validity. But the functions assigned to those

participants cannot be so neatly pigeonholed.

Judges, for example, perform several functions that

are closely tied to criminal investigations. As the Court

has explained:

[Federal courts have traditionally supervised grand

juries and assisted in their “investigative function”

by, if necessary, compelling the testimony of wit-

nesses. * * Federal courts also participate in the

issuance of search warrants, * * * and review ap-

plications for wiretaps, * * * both of which may re-

quire a court to consider the nature and scope of

criminal investigations on the basis of evidence or

affidavits submitted in an ex parte proceeding.

Morrison v. Olson, 487 U.S. 654, 681-682 n.20 (1988)

(citations omitted). Such actions are essential to the

judicial function and thus, despite their “investigatory”

attributes, fall within the ambit of a judge’s absolute

immunity. For similar reasons, the fact that a prosecu-

tor’s actions may aid a criminal investigation cannot be

determinative on the question of absolute immunity. To

the contrary, the scope of prosecutorial immunity de-

pends on the significance of the pertinent prosecutorial

function as it implicates the need to protect the judicial

process itself.

2. Turning to that inquiry, we believe that the pros-

ecutor’s legal advice to the police about the conduct of an

investigation is integral to two core, interrelated prose-

cutorial functions—screening cases for formal present-

ment of charges and later judicial proceedings and safe-

guarding the fairness of the criminal justice process.

First, the prosecutor’s assessment of the legal conse-

quences of police investigative conduct is directly related

to his obligation to screen and develop cases for trial.

See, e.g., 1 ABA Standards for Criminal Justice 3-3.4 &

16

pp. 3.46 to 3.47 (2d ed. 1980) (ABA Standards); Na-

tional District Attorneys Ass’n, National Prosecution

Standards 8.6 & pp. 126-128 (1977) (National Prosecu-

tion Standards). For example, the propriety of using

hypnosis as a means of interrogating a suspect in a mur-

der investigation would affect the admissibility of that

person’s statements (and fruits of those statements) in

any criminal proceeding. See, e.g., Rowley v. State, 483

N.E.2d 1078, 1081 (Ind. 1985); ef. Rock v. Arkansas,

483 U.S. 44, 56-62 (1987). And in this case, given the

apparent lack of incriminating evidence other than peti-

tioner’s statements under hypnosis, it is evident that the

legal consequences of that interrogation bore directly on

the strength of the State’s case and would have been

taken into account in the decision to file formal charges.

See, e.g., 1 ABA Standards 3-3.6 & 3-3.7 & pp. 3.49 to

3.52; National Prosecution Standards 9.4.

Similarly, the prosecutor’s assessment of whether the

police had probable cause to make a warrantless arrest

bears on his view of the strength of the state’s case

against a suspect. Absent probable cause, the arrest

would be invalidated, any evidence seized incident to the

arrest could be rendered inadmissible, and the basis for

lodging formal charges against the suspect would be un-

dermined. Viewed from this perspective, the prosecutor’s

assessment here of whether the police had probable cause

to arrest petitioner would likely be an integral part of

his formal charging decision.“ Indeed, as lower courts

have recognized, the initial determination of whether

such probable cause exists is part of the larger process of

determining whether to initiate a prosecution.” Marz v.

Gumbinner, 855 F.2d 783, 790 (11th Cir. 1988); accord

18 Under Indiana law, the police must promptly bring an indi-

vidual arrested without a warrant before a judicial officer for a

probable cause determination that a crime was committed. See

Ind. Code Ann. § 35-33-7-2 (Burns 1985). The authorities may not

seek an arrest warrant unless the suspect has first been formally

charged with a crime. See Ind. Code Ann. § 35-33-2-1(c) (Burns

1985).

17

Myers v. Morris, 810 F.2d 1437, 1448 (8th Cir.), cert.

denied, 484 U.S. 828 (1987); but ef. Wolfenbarger v.

Williams, 826 F.2d 930, 937 (10th Cir. 1987) (prosecu-

tor’s advisory function entitled only to qualified immun-

ity).

Second, the provision of legal advice about the pro-

priety of police conduct furthers the prosecutor’s insti-

tutional responsibility to safeguard the fairness of the

criminal judicial process. This Court has emphasized

that the prosecutor’s institutional role extends beyond his

obligation to serve as an advocate for the state:

The [prosecutor] is the representative not of an

ordinary party to a controversy, but of a sovereignty

whose obligation to govern impartially is as com-

pelling as its obligation to govern at all; and whose

_ interest, therefore, in a criminal prosecution is not

that it shall win a case, but that justice shall be

done. As such, he is in a peculiar and very definite

sense the servant of the law, the twofold aim of

— is that guilt shall not escape or innocence suf-

er.

Berger v. United States, 295 U.S. 78, 88 (1935); ac-

cord Young v. United States ex rel. Vuitton et Fils S.A.,

481 U.S. 787, 802-804 (1987).

Under that well-recognized obligation, the prosecutor

has the responsibility to “provide legal advice to the

police concerning police functions and duties in criminal

matters.” ABA Standards 3-2.7(a); accord ABA Model

Code of Professional Responsibility EC 7-13 (1989).™

Thus, when a prosecutor advises police officers about the

legal ramifications of their conduct he truly acts in a

“quasi-judicial” capacity, not simply because he renders

a legal opinion, but because the exercise of the prosecu-

See also Indiana Rules of Professional Conduct 3.8, comment

(1990) (“A prosecutor has the responsibility of a minister of

justice and not simply that of an advocate. This responsibility

carries with it specific obligations to see that the defendant is ac-

corded procedural justice and that guilt is decided upon the basis

of sufficient evidence.” ).

18

tor’s judgment in rendering that opinion interposes a

check on law enforcement activity and bolsters the fair-

ness of the criminal justice process.

3. The prosecutorial functions implicated by a prose

cutor’s legal advice—screening cases for formal present-

ment of charges and later judicial proceedings and safe-

guarding the fairness of the criminal justice process—

warrant the protection of absolute immunity. Since the

provision of legal advice furthers the prosecutor’s ability

to sereen and develop cases, such conduct should be ac-_

corded absolute immunity for the same reasons as those

articulated in Jmbler: a prosecutor must be free to exer-

cise his discretion to initiate a criminal proceeding with-

out fear that an error will embroil him in civil dsputes

and expose him to personal liability, thereby causing

a deflection of the prosecutor’s energies from his public

duties, and the possibility that he would shade his deci-

sions instead of exercising the independence of judgment

required by his public trust.” Jmbler v. Pachtman, 424

U.S. at 423.

Similarly, insofar as the prosecutor’s legal advice fur-

thers the “quasi-judicial” function of safeguarding the

fairness of the criminal justice process, a prosecutor

should not be subject to the risk that the mere expression

of an opinion as to the legality of a police action will expose

him to damages suits. As the court of appeals pointed

out, any other result will discourage the prosecutor from

providing such advice, thereby removing an important

and salutary check on police conduct of an investigation:

[I}t is entirely likely that if prosecutors were granted

only qualified immunity from suits for conduct re-

lating to their role as the officers’ legal advisor, the

end result would be to discourage prosecutors from

fulfilling this vital obligation. Police officers, in turn,

would be left to take their best guess as to what a

suspect’s rights are. On balance, one of the central

goals of the criminal justice system would be dra-

matically undercut. Police officers will be less well-

informed about both their ability to employ certain

investigative techniques, and the possibility that their

19

proposed conduct will violate the rights of their sus-

pects.

Pet. App. 12a-13a.""

The prosecutorial functions implicated vi

r r.

cause qualified or conditional immunity will not ade

quately insure that the prosecutor can perform these

functions without becoming entangled in damages actions.

To be sure, such reduced protection would still preclude

liability if the prosecutor’s conduct does not violate clearly

established federal law. See, e. g., Harlow v. Fitzgerald,

457 U.S. at 815-819. That potential liability, however, is

only one aspect of the problem. Protection is also needed

to offset the substantial risk of committing the prosecu-

tor’s time and resources to defending against damages

actions, and to reduce the chilling effect of potential law-

suits. By its terms, qualified immunity—an affirmative

defense—does not insulate prosecutors from the risk of

vexatious litigation. See Anderson v. Creighton, 483 U.S.

635, 646-647 n.6 (1987).

Indeed, in Imbler this Court accorded the protection of

absolute immunity to certain prosecutorial functions be-

cause any lesser protection would still force the prosecu-

tor to answer in court every time a disgruntled individ-

ual alleged official misconduct. Imbler v. Pachtman, 424

U.S. at 424.“ That reasoning obtains here. The prosecu-

There will be instances in which a prosecutor not only ex-

presses a legal opinion on the ramifications of police conduct but

also controls or actively participates in a law enforcement inves-

tigation. See, ., Robinson v. Via, 821 F.2d 913, 918-919 (2d

Cir. 1987) (participating in raid during preliminary investiga-

tion); Rex v. Teeples, 753 F.2d 840, 843-844 (10th Cir. 1985)

(interviewing suspect during investigation). The question whether

and to what extent absolute immunity shields those sorts of pros-

ecutorial activities is not presented here since respondent's role

was entirely advisory. See note 12, supra.

We recognize, as did the court of appeals (Pet. App. 8a n.3),

that the functional analysis underlying a claim of absolute im-

munity may itself require resolution of certain factual matters

20

torial functions implicated in this case—screening cases

for formal presentment of charges and trial and safe-

guarding the fairness of the criminal justice process—

are no less important than those addressed by /mbler.

Moreover, the absolute immunity recognized in /mbler

would itself be eroded if litigants, through artful plead-

ing, could freely assert claims based on prosecutorial con-

duct warranting only qualified immunity. As a practical

matter, decisions regarding presentation of the case or

the initiation of a prosecution—the core functions en-

titled to absolute immunity under /mbler—can often be

linked to some series of actions preceding the filing of

formal charges. If preliminary actions—such as assess-

ing probable cause to arrest or evaluating the admissi-

bility of evidence—are accorded less than full protection,

the absolute immunity recognized in Imbler will in-

evitably be diminished, and the risk that prosecutors will

be subjected to vexatious claims for damages will be

bstantially increased.

— — to the suggestion of petitioner’s amici

(ACLU Br. 7-8), the absence of any clear common law

tradition of absolute immunity in the circumstances of

this case does not foreclose the result reached by the

courts below. Although that tradition has informed the

Court’s decisions, the Court has “never suggested that

the precise contours of official immunity can and should

be slavishly derived from the often arcane rules of the

common law.” Anderson v. Creighton, 483 U.S. at 645.

ex prosecutors to some degree of entanglement in

2 — 3 — Nonetheless, even if the protection afforded by

absolute immunity is not complete, it is a far more effective means

of insuring that many—if not all—damages actions against pros-

ecutors will present pure questions of law that, contrary to peti-

tioner’s view (Br. 25), the court can resolve on the pleadings.

Cf. Haynesworth v. Miller, 820 F.2d 1245, 1266 n.161 (D.C. Cir.

1987) (noting that claim of absolute immunity can be resolved

on pleadings where complaint fairly discloses the character of the

challenged official conduct).

21

In the first place, the office of professional public prose-

cutor was largely unknown at English common law. See

Kress, Progress and Prosecution, 423 Annals 99, 100-101

(1976); Langbein, The Origins of Public Prosecution at

Common Law, 17 Am. J. Legal Hist. 313 (1973). That

office, which developed in this country during the eigh-

teenth and nineteenth centuries, initially confined its

jurisdiction to the formal accusatory—as opposed to in-

vestigatory—stages of the criminal process, i. e., filing

formal criminal charges, dismissing charges initiated by

the police, and presenting the state’s case in court. See

J. Jacoby, The American Prosecutor: A Search For

Identity 11-19 (1980); McDonald, The Prosecutor's

Domain, in The Prosecutor 15, 23-28 (W. McDonald ed.

1979). Indeed, such prosecutorial control as the provi-

sion of legal advice to police about pending investigations

is principally a twentieth-century phenomenon. See J.

Jacoby, supra, at 107-110; McDonald, supra, at 32-38.

Thus, the prosecutor’s conduct at issue here—advising

the police about the consequences of an investigative tech-

nique or the legal bases for an arrest—cannot be fairly

compared to functions performed by prosecutors in times

past.

As this Court suggested in Anderson v. Creighton, the

absence of a comparable common law analogue should

not preclude extension of absolute immunity to modern

prosecutorial functions. Rather, the scope of immunity

should turn on the substantial public interest in vigorous

exercise of those current day functions that directly af-

fect the integrity of the judicial process. Here, immunity

from damages liability for the prosecutor’s giving legal

advice to police officers facilitates the exercise of the

prosecutor’s discretionary function to initiate and con-

duct judicial proceedings—a function that in turn serves

the weighty public interest in promoting the fairness and

efficacy of criminal justice.

Indeed. the integral relation between the actions complained

of here and the more traditional functions of the public prosecutor

5. Finally, according absolute immunity in the cir-

cumstances of this case is warranted because of other

available checks on prosecutorial misconduct. First,

police conduct itself is amenable to judicial review in

both civil and criminal proceedings. For example, war-

rantless arrests are subject to prompt judicial hearings

for probable cause determinations. See, e. g., Gerstein v.

Pugh, 420 U.S. 103 (1975); see Ind. Code Ann. § 35-33-

7-1 and 2 (Burns 1985). Similarly, as shown by peti-

tioner’s defense of the state criminal charges, material

statements obtained through improper invesitgative tech-

niques are subject to judicial review. See, e. 9., Ind. R.

Crim. P. 3; Fed. R. Crim. P. 12(b).

Second, a court may exercise its supervisory power to

correct misuses of prosecutorial authority that result in

fundamental and pervasive prejudicial errors in the judi-

cial process. See, ¢.g., Young v. United States ex rel.

Vuitton et Fils S.A., 481 U.S. at 809-810; United States

v. Hasting, 461 U.S. 499, 505 (1983). Third, as this

Court recognized in Imbler, 424 U.S. at 429, prosecutors

remain subject to professional discipline and may be held

accountable for engaging in conduct that violate stand-

ards of professional ethics. See, e. g., ABA Code of Pro-

fessional Responsibility DR 7-103(A) (1989)."*

strongly suggests that common law immunity would have been

afforded to such actions for the same reasons that immunity was af-

forded from actions for malicious prosecution. See pp. 25-26, infra.

The case, in other words, is very different from one in which

courts at common law declined to recognize claims of absolute im-

munity for the same kinds of prosecutorial conduct that are the

subject of a present day damages action.

Under regulations promulgated by the Attorney General, fed-

eral prosecutors guide their conduct by the ABA Code of Profes-

sional Responsibility. See 28 C. F. R. 45.735-1(b). The Office of

Professional Responsibility of the Department of Justice investi-

gates allegations of professional misconduct by federal prosecu-

tors. Violations of applicable ethical standards subject prosecutors

to disciplinary sanctions. See 28 C. F. R. 45.735-1(c).

We acknowledge that such remedies may not afford

complete redress in every case of prosecutorial miscon-

duct. But the substantial public interest in protecting

the integrity of the criminal justice process outweighs

any shortcomings in the panoply of remedies. Indeed, this

Court has recognized that

[als public servants, the prosecutor and the judge

represent the interest of society as a whole. The

conduct of their official duties may adversely affect

a wide variety of different individuals, each of whom

may be a potential source of future controversy. The

societal interest in providing such public officials with

the maximum ability to deal fearlessly and impar-

tially with the public at large has long been recog-

— as an acceptable justification for official im-

munity.

Ferri v. Ackerman, 444 U.S. 193, 202-203 (1979).

C. Eliciting Testimony During A Probable Cause Hearing

To Obtain A Search Warrant Is Also Integrally Re-

lated To jhe Prosecutor’s Essential Functions

Under the framework and analysis set forth above, the

prosecutor’s participation in a judicial hearing to obtain

a search warrant—conduct intimately connected with the

judicial process itself—also merits absolute immunity

from suit for damages.

1. First, the prosecutor’s participation in obtaining a

search warrant is an integral part of his responsibility

to screen and prepare cases for later judicial proceedings.

In setting forth the standards regarding the prosecutor’s

“(djecision to charge,” leading authorities state that

al bsent exceptional circumstances, no arrest warrant

or search warrant should issue without the approval of

the prosecutor.” ABA Standards 3-3.4(b); accord Na-

tional Prosecution Standards 7.3. The federal govern-

ment has an established practice of requiring prosecutors

to review applications for search warrants. See 28 C. F. R.

59.4(b) and 60.1. And today, many state and local juris-

24

dictions follow similar procedures. See R. Van Duizend,

L. Sutton, & C. Carter, The Search Warrant Process 20-

21 (1985); ABA Standards 3-3.4(c), pp. 3.45 to 3.46.

That screening function is necessarily one component of

the prosecutor’s ultimate charging function. By review-

ing the warrant application, the prosecutor can insure

that the application is sound and thus can minimize the

risk of suppression of evidence critical to the gtate’s case.

Cf. Malley v. Briggs, 475 U.S. 335, 345-346 (1986).

Second, the prosecutor’s participation in the probable

cause hearing—aiding the court to determine the exist-

ence of probable cause—furthers his role in safeguarding

the criminal justice process. That participation not

only clarifies for the court the bases of the warrant ap-

plication, but also enables the court directly to pose ques-

tions to the prosecutor as an aid to understanding the

need for and sufficiency of the application. In these cir-

cumstances, the prosecutor’s participation, when properly

discharged, helps assure the fairness of the warrant pro-

ceeding and ultimately of the criminal justice process as

a whole.”

„ Ordinarily, applications for search warrants are submitted

with written affidavits. See, e.g. Fed. R. Crim. P. 41(c) (1); Ind.

Code Ann. § 35-33-5-2(a) (Burns 1985). State and federal crim-

inal procedure, however, provide that courts may issue search

warrants on the basis of sworn testimony elicited at a hearing.

See, e.g., Fed. R. Crim. P. 41(c) (2); Ind. Code Ann. § 35-33-5-2

(ec) (Burns 1985).

% Petitioner (Br. 22-23) and her amici (ACLU Br. 18-19)

maintain that respondent, in eliciting testimony at the search

warrant hearing, performed an “investigatory” function. The rec-

ord belies that characterization. Respondent played no role in the

management or conduct of the police officers’ investigation, in-

cluding their decision to search petitioner's house. See Tr. 44,

134-135. As respondent explained, “I was told the police officers)

wanted a search warrant. I went to court to ask the officers what

it was they based their request on.” Tr. 145.

For that reason, petitioner's amici (ACLU Br. 19-20) err in

relying on Malley v. Briggs, 475 US. 335 (1986). There, the -

police officer who testified at the probable cause hearing was di-

25

2. For the reasons detailed above, see pp. 18-23, supra,

the prosecutorial function of participating in the search

warrant hearing warrants the protection of absolute im-

munity.

First, absent such protection, the prosecutor could be

exposed to repeated claims for damages arising out of

his review of search warrant applications or participation

in search warrant proceedings. That could in turn chill

a prosecutor’s willingness vigorously to support mertiori-

ous warrant applications.

Second, had the prosecutor’s screening function existed

before modern times, we believe that common law would

have recognized an immunity from suit with respect to

his participation in warrant proceedings. Although the

common law did not provide immunity to the complain-

ing witness at a warrant hearing, see Malley v. Briggs,

475 U.S. at 340-341 & n.3, the prosecutor who elicits

testimony at such a hearing is not acting as a witness.

Rather, at that point, the prosecutor is actually further-

ing the state’s criminal prosecution of the target of the

search. The analogous common law tort embracing such

conduct is malicious prosecution. See, e.g., Hardin v.

Hight, 106 Ark. 190, 197, 153 S.W. 99, 101 (1913) (pro-

recting the criminal investigation and made the decision to procure

the warrant. Id. at 338-339. Here, by contrast, respondent’s role

was limited to eliciting testimony to enable the court to make the

probable™thuse determination. And application of absolute im-

munity is not foreclosed by the fact that a prosecutor, who par-

ticipates in a judicial proceeding to aid the police in obtaining a

search warrant, may be seen as performing a police or investiga-

tory function. A judge who issues a search warrant also facilitates

a police investigation, but he is nonetheless entitled to absolute im-

munity—even if it should have been obvious that the application

was inadequate. See Pierson v. Ray, 386 U.S. 547 (1967). The

pertinent inquiry is not whether the challenged action relates to

(or furthers) a police investigation. Rather, the inquiry is

whether that action furthers an institutional function that di-

rectly affects the fairness and integrity of the judicia! process.

Viewed from this perspective, the prosecutor’s efforts to assist

the court in a probable cause hearing fall within that category

of functions meriting immunity.

26

curing search warrant may ground action for malicious

prosecution): Harlan v. Jones, 16 Ind. App. 398, 45

N. E. 481 (1896) (same). And, as /mbler makes clear,

prosecutors were generally held immune from claims of

malicious prosecution at common law. Imbler v. Pacht-

man, 424 U.S. at 421-423.

Third, prosecutorial misconduct at search warrant

hearings can be adequately remedied through means

other than a damages remedy. Errors at that early stage

of the criminal process can be quickly exposed to judicial

scrutiny, even before the institution of criminal charges,

by a motion for the return of property seized. See, e. g.,

Ind. Code Ann. §§ 35-33-5-5(b) and 35-43-4-4(h)

(Burns 1985 & Supp. 1990); Fed. R. Crim. P. 41(e).

Moreover, after charges are lodged, prosecutorial im-

proprieties may be effectively remedied on pretrial mo-

tions seeking to dismiss those charges or on motions to

suppress evidence seized as a result of the search.

Lastly, the various disciplinary mechanisms in place for

policing prosecutorial misconduct are available to rectify

and deter such misuse of official authority.

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

DAVID L. SHAPIRO

Deputy Solicitor General

MICHAEL R. LAZERWITZ

Assistant to the Solicitor General

BARBARA L. HERWIG

JEFFREY A. CLAIR

SEPTEMBER 1990 Attorneys

WT wv. &. GOVERNMENT PRINTING OFrice, 1990 262203 20130