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April 05, 2019

Criminal prosecutor's claim of absolute immunity depends on the nature of the function he or she performed


Whether a prosecutor is entitled to absolute immunity for specific actions “depends principally on the nature of the function performed.” In this action the United  States Court of Appeals, Second Circuit, held that "[a]s the presentation of inculpatory evidence showing probable cause to the grand jury is an essential prosecutorial function, necessary to obtain an indictment, doing so is protected by absolute immunity", explaining that it is “intimately associated with the judicial phase of the criminal process."

With respect to the prosecutor giving "reassurance" to an infant witness, providing such reassurance is a protected act of “advocacy” in the course of presenting the prosecutor's  evidence to the grand jury.

For the purpose of determining whether this prosecutor is entitled to absolute immunity for placing the most crucial inculpatory evidence before the grand jury, and where the accused admits that the purpose of taping the infant's testimony was to present it to a grand jury, there is no functional difference between creating a recording of the infant’s testimony for presentation to the grand jury pursuant to New York's Criminal Procedure Law §190.32 and directly questioning the infant before the grand jury as both are the creation of the essential grand jury record.

The prosecutor, therefore, was entitled to absolute immunity with respect to the prosecutor's recording the infant’s testimony, including the prosecutor's "misguided effort to reassure the [infant]." 

The decision is posted on the Internet at:

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