Qualifying Prosecutorial Immunity Through Brady Claims

62 Pages Posted: 19 Apr 2021

See all articles by Brian Murray

Brian Murray

Seton Hall Law School

Paul S. Heaton

University of Pennsylvania Carey Law School

Jon Gould

ASU School of Criminology and Criminal Justice

Date Written: January 2021


This Article considers the soundness of the doctrine of absolute immunity as it relates to Brady violations. While absolute immunity serves to protect prosecutors from civil liability for good-faith efforts to act appropriately in their official capacity, current immunity doctrine also creates a potentially large class of injury victims—those who are subjected to wrongful imprisonment due to Brady violations—with no access to justice. Moreover, by removing prosecutors from the incentive-shaping forces of the tort system that are thought in other contexts to promote safety, absolute immunity doctrine may under-incentivize prosecutorial compliance with constitutional and statutory requirements and increase criminal justice system error.

The Article seeks to identify ways to use the civil justice system to promote prosecutorial compliance with Brady, while recognizing the need to provide appropriate civil protections to enable prosecutors to fulfill their unique role within the criminal justice system. After developing a novel taxonomy of Brady cases, evaluating such cases against basic tort principles, and considering the prosecutorial community’s views regarding appropriate Brady remedies, it proposes a statutory modification of absolute immunity that might better regulate and incentivize prosecutor behavior, reduce wrongful convictions, and improve access to justice.

Keywords: prosecutors, brady, absolute immunity, qualified immunity, §1983, misconduct, criminal procedure, civil rights

Suggested Citation

Murray, Brian and Heaton, Paul S. and Gould, Jon, Qualifying Prosecutorial Immunity Through Brady Claims (January 2021). Iowa Law Review, Vol. 107, 2021-22, Available at SSRN: https://ssrn.com/abstract=3822841

Brian Murray (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102
United States

HOME PAGE: http://https://law.shu.edu/faculty/full-time/Brian-Murray.cfm

Paul S. Heaton

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

HOME PAGE: http://https://www.law.upenn.edu/cf/faculty/pheaton/

Jon Gould

ASU School of Criminology and Criminal Justice ( email )

411 N. Central Ave, Suite 600
Phoenix, AZ 85004
United States

HOME PAGE: http://https://ccj.asu.edu/content/jon-gould

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