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A physician who botches an operation or an attorney in private practice whose incompetence costs his client a small fortune can both be sued for malpractice. A prosecutor who convicts a defendant of a crime he didn’t commit, on the other hand, enjoys immunity from civil suits. That immunity was almost absolute, but a series of court rulings in the last decade have begun to whittle away at the protections for prosecutors who break rules in gaining convictions.

In 1976, the U.S. Supreme Court ruled in Imbler v. Pachtman that prosecutors should be protected by absolute immunity from civil lawsuits, reasoning that the threat of litigation from defendants might interfere with a prosecutor’s job. The justices also assumed that supervisors and bar disciplinary boards would offer punishment enough to deter prosecutors from breaking rules. Research conducted since the Imbler decision suggests that in most prosecutors’ offices and at most state disciplinary agencies, the justices’ expectations are not being met: prosecutors are rarely disciplined for misconduct in the courtroom. The justices have not overridden the 1976 ruling.

In a separate opinion in the Imbler ruling, Justice Byron White concurred with the majority but wondered about the wisdom of extending absolute immunity to prosecutors who withheld evidence suggesting that a defendant was innocent. Prosecutors ought to live in fear that failure to disclose such evidence could lead to civil liability, White insisted. But twenty-seven years later, prosecutors have pretty much absolute immunity from civil lawsuits as long as they are acting as government advocates “intimately associated with the judicial phase of the criminal process.”

After the Pachtman ruling, various courts invoked absolute immunity for prosecutors who broke promises that they would not charge a suspect with a crime; presented false or misleading evidence to a grand jury; offered to drop charges if a defendant agreed to withdraw from a civil proceeding; shopped for an expert forensic witness until finding a sympathetic one, despite knowing that the expert used questionable methods; and, as Justice White had feared, withheld evidence suggesting innocence.

By 1991, however, enough splits had emerged within and between the circuit courts that the Supreme Court revisited immunity for prosecutors in a case called Burns v. Reed. By and large, the Court upheld the principle, but with one exception: a prosecutor could be sued for his actions during the investigative, and not judicial, stage of a case.

Just two years later, in 1993, the U.S. Supreme Court ruled in another case involving the degree of immunity from civil liability protecting prosecutors. The dispute had its beginnings in an Illinois wrongful conviction case; the Justices again found that immunity did not extend to actions prosecutors undertook while investigating a case.

In 1997, the Supreme Court heard the case of Lynne Kalina v. Rodney Fletcher, and found an instance in which a prosecutor could be held liable for her actions.

Fletcher was charged with stealing from a school and spent a day in jail after his arrest. A month later, Kalina, the prosecutor, dismissed the case. Fletcher sued Kalina, who asked that the lawsuit be dismissed. At issue were the documents Kalina filed to get an arrest warrant. Kalina contended that she had filed the documents as part of her official duties and enjoyed absolute immunity from liability. The trial court and an intermediate appellate court disagreed with Kalina. The U.S. Supreme Court accepted the case “because we have never squarely addressed the question whether a prosecutor may be held liable for conduct in obtaining an arrest warrant.”

The justices said Kalina’s “activities in connection with the preparation and filing of two of the three charging documents—the information and the motion for an arrest warrant—are protected by absolute immunity.” A third document, however—a certification that the other documents were accurate—troubled the court. “Indeed, except for her act in personally attesting to the truth of the averments in the certification, it seems equally clear that the preparation and filing of the third document in the package was part of the advocate’s function as well. The critical question, however, is whether she was acting as a complaining witness rather than a lawyer when she executed the certification under penalty of perjury.”

Kalina offered the certification because it was local practice for somebody from the prosecutor’s office to do so. That practice perhaps needed re-thinking, the justices said. When Kalina personally signed the certification, she was acting as a witness, not as an advocate. Therefore, she could not expect absolute immunity.

Much of the time when an aggrieved defendant sues a prosecutor, there is no monetary recovery or the outcome is shrouded in secrecy. Fletcher’s lawsuit against Kalina, however, yielded payment to him in a public outcome. Norm Maleng, King County’s elected prosecutor, apologized to Fletcher, as did Kalina separately. King County, Kalina’s employer, paid Fletcher $162,500 to settle the lawsuit before trial.

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