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You Mean I Can't Lie in the Name of Justice?

Our Supreme Court permits police officers to lie in the name of justice. Dupe a suspect to get at truth? Why not? All's fair in the war on crime.

But can prosecutors lie with impunity? Penetrating prosecutorial immunity in suits arising under 42 U.S.C. Section 1983 is difficult. The functional tests laid out in Imbler v. Pachtman and Kalina v. Fletcher are demanding. No wonder some prosecutors think they can get away with murdering the truth.

A recent Supreme Court decision in Idaho suggests a new line of attack on prosecutorial misconduct.

At an ex parte probable cause hearing a prosecutor named Shari Dodge told a judge that a defendant had once "pulled a shotgun" on a cop. It turns out that wasn't true. Unsurprisingly, the magistrate hearing this jacked up the defendant's bond. The defendant was dangerous, wasn;t he?

The Idaho Supreme Court found that the prosecutor violated her duty of candor toward the tribunal. Idaho State Bar v. Dodge, Idaho, No. 30498, 2/22/05. 

"If an attorney does not know if an assertion is true or cannot point to a reasonably diligent inquiry to ascertain the truth of the statement, the attorney can remain silent, profess no knowledge, or couch the assertion in equivocal terms so the court can assess the assertion's probative value," the Court ruled. Experienced litigators understand this rule: Not quite sure you can prove an assertion? You signal so by saying "upon information and belief," or some such locution.

I think Ms. Dodge is vulnerable under 1983. In the Kalina case, a prosecutor was held subject to suit when he made material mistatements of fact on a warrant affidavit. Dodge's verbal speech should yield similar liability.

Of course, Courts are wary to permit suits against prosecutors. But why? A prosecutor violating the duty of candor toward the tribunal is not acting in her advocacy function or role. And not theory of qualified immunity should bar a suit.

Of course, on the second prong of Harlow v. Fitzgerald I can foresee the following defense: An objectively reasonable prosecutor could think lying is permissible on the theory that cops are permitted deceit.

The difference between cops and prosecutors is significant, however. Police officers have no duty of candor.

Will Dodge be sued? That's up to Idaho counsel. But it seems a shame to let this Idaho Supreme Court ruling go to seed without harvesting a chance to push back against the use of lies by those sworn to serve the interest of justice.