In the Supreme Court Tomorrow: Prosecutorial Immunity

The United States Supreme Court is hearing oral argument in eight cases this week relating to such matters as habeas corpus, bankruptcy, and the fees charged by investment advisers of mutual funds.

For me the most interesting case is Pottawattamie County, Iowa v. McGhee which will be argued tomorrow and raises the question of the limits on prosecutorial immunity from civil suit.

The Supreme Court has long held that prosecutors are immune from civil suit for damages under 42 U.S.C. § 1983 for actions and decisions taken in connection with the prosecution of a case. In Pottawattamie County the claim is that the prosecutor procured false testimony during the investigation of a case and then used that testimony against the defendant at trial. The United States Court of Appeals for the Eighth Circuit concluded that there is no prosecutorial immunity "where the prosecutor was accused of both fabricating evidence and then using the fabricated evidence at trial."

Eight amicus briefs have been filed with the Court representing the views of over 40 states and organizations.