Last year I reported that a split panel of the Court of Appeals for the Seventh Circuit held in a case called Fields v Wharrie, that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case (as opposed to the trial phase of the case).
Above the Law is now reporting on a recent decision from the Court of Appeals for the Second Circuit holding that because the jury found that the prosecutor presented false evidence to
the grand jury that he either knew was false — or was reckless in
figuring out the truth of — he had no qualified immunity. Even though a
prosecutor can decide to exclude material evidence and can affirmatively
ignore exculpatory evidence in a grand jury presentation, the Second
Circuit didn’t have trouble finding that the law is pretty clearly
settled that a prosecutor can’t actually provide false evidence.
What is interesting in this case is that the court finds that presenting the case to the grand jury falls within the "investigation" phase of the case. The case is called Morse v. Fusto and you can read it here.