Whether prosecutors are always absolutely immune from 42 U.S.C. § 1983 liability for (1) post-charge acts (2) taken to marshal evidence to present at trial

QUESTIONS PRESENTED In this case, a divided Third Circuit panel, over a dissent by Judge Shwartz, deepened a widely-recognized and entrenched circuit conflict regarding the scope of absolute immunity for prosecutors. Respondent was convicted of homicide. His conviction was later vacated, and on retrial he was acquitted. He sued the original prosecutor, petitioner here, and alleged that, one month before the first trial, petitioner deliberately located a new witness and persuaded the witness to fabricate testimony for use at respondent’s trial. The majority below, rejecting the tests used in other circuits, held that, by seeking out a new witness, petitioner stepped out of his prosecutorial role and into an “investigative” role, forfeiting his entitlement to absolute prosecutorial immunity. Judge Shwartz dissented, concluding, as numerous other circuits have, that “collecting evidence in preparation for trial” is “clearly the work of an advocate” and therefore subject to prosecutorial immunity. In the 31 years since Buckley v. Fitzsimmons, 509 U.S. 259 (1998), the Circuits have fallen into an acknowledged, intractable conflict over how to distinguish when a prosecutor is acting in a “prosecutorial” capacity entitled to absolute immunity versus in an “investigative” capacity subject to qualified immunity. The questions presented are: 1. Whether prosecutors are always absolutely immune from 42 U.S.C. § 1983 liability for (1) post-charge acts (2) taken to marshal evidence to present at trial, as four Circuits have held, or not, as two Circuits have held. 2. Whether the Court should clarify or, if necessary, recede from its dictum in footnote five of Buckley, that “a determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards.” (i)