Right Not to Be Framed: Preserving Civil Liability of Prosecutors in the Face of Absolute Immunity

The issue before the Supreme Court in Pottawattamie County, Iowa v. McGhee, was whether a prosecutor was immune from suit for framing a prospective defendant during an investigation, before indictment. The case settled while a decision was pending, so that precise question of law remains unresolved. However, I suspect that most Americans would be surprised to learn that the law is settled as to whether prosecutors are immune from suit for intentionally framing a defendant at trial -- and that it is settled in prosecutors' favor. This immunity largely forecloses civil liability as an avenue for addressing misconduct. While the law is clear that prosecutors are immune for activities “intimately associated with the judicial phase of the criminal process,” the law is in turmoil over what behaviors of prosecutors in advance of bringing a case to court are considered prosecutorial activities or otherwise subject to immunity. Pottawattamie might have brought some closure to this area of law if the case had progressed all the way to decision, but though the case was never decided, the oral arguments still shed significant light on the potential position of the Supreme Court on this issue. This note explores how different courts have dealt with the question of when prosecutorial immunity begins, and proposes that culpable activity on the part of a prosecutor in the period before that point should be actionable despite the fact that the actual harm from those activities occurred during a period when the prosecutor was immune.