“Prosecutorial immunity” is a judge-made doctrine that cloaks prosecutors in near-absolute immunity from suit. Under this doctrine, prosecutors cannot be sued for any actions related to their job as a prosecutor, no matter how egregious the behavior. For example, prosecutors cannot be sued for knowingly prosecuting an innocent person, withholding evidence of innocence, or even fabricating false evidence of guilt. 

Prosecutorial immunity is an absolute shield against damages lawsuits for claims that arise from prosecutorial actions. Believing that the constant worry of lawsuits would impede prosecutors’ ability to do their job, in its 1976 decision Imbler v. Pachtman, the Supreme Court created this immunity to serve the “public trust” and ensure “the proper functioning of the criminal justice system.”  

Instead, experience shows that this immunity enables prosecutors to disregard constitutional rights in order to pursue convictions. Examples of prosecutors escaping liability are ubiquitous in the United States. For example, the 2nd U.S. Circuit Court of Appeals recently ruled that a group of nurses could not sue Suffolk County prosecutors who hid evidence and engaged in other misconduct as a political favor.  

Similarly, a Maryland court held in 2021 that a prosecutor could not be held personally accountable for withholding lab test results proving that a man jailed for allegedly flying with methamphetamines was in fact carrying only honey, just like he said. In both cases, prosecutors withheld the truth to serve their own interests, and they were never held to account for their violations. 

Despite prosecutorial immunity’s fundamental flaw, there is only one carveout to this otherwise impervious protection: It does not shield prosecutors from being sued for actions that are not related to advocating for the prosecution, such as acting as an investigator or police detective. In other words, “the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor.” 

However, because the line between prosecutor and investigator can be difficult to identify and judges define prosecutorial conduct very broadly, this exception is rarely applied. And in the very few cases where courts do not grant prosecutorial immunity, prosecutors are afforded the additional protection of qualified immunity. This means that victims who overcome the steep hurdle of prosecutorial immunity must also show that the prosecutor’s behavior violated clearly established law before they will receive their day in court. 

Learn more about our Immunity and Accountability work.

The Institute for Justice’s Project on Immunity and Accountability is devoted to a simple idea: If we the people must follow the law, our government must follow the Constitution.

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