WHITE, J., concurring in judgment 424 U.S. pendence without which no judiciary can be either respectable or useful. . . . See also cases discussed in Yaselli v. Goff, 12 F. 2d 396, 399-401 (CA2 1926), summarily aff'd, 275 U. S. 503 (1927). The majority articulates other adverse consequences which may result from permitting suits to be maintained against public officials. Such suits may expose the official to an unjust damage award, ante, at 425; such suits will be expensive to defend even if the official prevails and will take the official's time away from his job, ante, at 425; and the liability of a prosecutor for unconstitutional behavior might induce a federal court in a habeas corpus proceeding to deny a valid constitutional claim in order to protect the prosecutor, ante, at 427. However, these adverse consequences are present with respect to suits against policemen, school teachers, and other executives, and have never before been thought sufficient to immunize an official absolutely no matter how outrageous his conduct. Indeed, these reasons are present with respect to suits against all state officials 3 and must necessarily have been rejected by Congress as a basis for absolute immunity under 42 U. S. C. § 1983, for its en 3 3 Even the risk that decisions in habeas corpus proceedings will be skewed is applicable in the case of policemen; and if it supplies a sufficient reason to extend absolute immunity to prosecutors, it should have been a sufficient reason to extend such immunity to policemen. Indeed, it is fair to say that far more habeas corpus petitions turn on the constitutionality of action taken by policemen than turn on the constitutionality of action taken by prosecutors. We simply rely on the ability of federal judges correctly to apply the law to the facts with the knowledge that the overturning of a conviction on constitutional grounds hardly dooms the official in question to payment of a damage award in light of the qualified immunity which he possesses, and the inapplicability of the res judicata doctrine, ante, at 428 n. 27. 409 WHITE, J., concurring in judgment actment is a clear indication that at least some officials should be accountable in damages for their official acts. Thus, unless the threat of suit is also thought to injure the governmental decisionmaking process, the other unfortunate consequences flowing from damage suits against state officials are sufficient only to extend a qualified immunity to the official in question. Accordingly, the question whether a prosecutor enjoys an absolute immunity from damage suits under § 1983, or only a qualified immunity, depends upon whether the common law and reason support the proposition that extending absolute immunity is necessary to protect the judicial process. II The public prosecutor's absolute immunity from suit at common law is not so firmly entrenched as a judge's, but it has considerable support. The general rule was, and is, that a prosecutor is absolutely immune from suit for malicious prosecution. 1 F. Harper & F. James, The Law of Torts § 4.3, p. 305 n. 7 (1956) (hereafter Harper & James), and cases there cited; Yaselli v. Goff, supra; Gregoire v. Biddle, 177 F. 2d 579 (CA2 1949); Kauffman v. Moss, 420 F. 2d 1270 (CA3 1970); Bauers v. Heisel, 361 F.2d 581 (CA3 1965); Tyler v. Witkowski, 511 F. 2d 449 (CA7 1975); Hampton v. City of Chicago, 484 F. 2d 602 (CA7 1973); Barnes v. Dorsey, 480 F. 2d 1057 (CA8 1973); Duba v. McIntyre, 501 F. 2d 590 (CA8 1974); Robichaud v. Ronan, 351 F. 2d 533 (CA9 1965). But see Leong Yau v. Carden, 23 Haw. 362 (1916). The rule, like the rule extending absolute immunity to judges, rests on the proposition that absolute immunity is necessary to protect the judicial process. Absent immunity, "it would be but human that they [prosecutors] might refrain from presenting to a grand jury or prosecuting a matter which in their judgment called for action; but WHITE, J., concurring in judgment ... 424 U.S. which a jury might possibly determine otherwise.'" 1 Harper & James § 4.3, pp. 305-306, quoting Yaselli v. Goff, 8 F.2d 161, 162 (SDNY 1925). Indeed, in deciding whether or not to prosecute, the prosecutor performs a "quasi-judicial" function. 1 Harper & James 305; Yaselli v. Goff, 12 F. 2d, at 404. Judicial immunity had always been extended to grand jurors with respect to their actions in returning an indictment, id., at 403, and “the public prosecutor, in deciding whether a particular prosecution shall be instituted . . . performs much the same function as a grand jury.'" Id., at 404, quoting Smith v. Parman, 101 Kan. 115, 165 P. 633 (1917). The analogy to judicial immunity is a strong one. Moreover, the risk of injury to the judicial process from a rule permitting malicious prosecution suits against prosecutors is real. There is no one to sue the prosecutor for an erroneous decision not to prosecute. If suits for malicious prosecution were permitted, the prosecutor's incentive would always be not to bring charges. Moreover, the "fear of being harassed by a vexatious suit, for acting according to their consciences" would always be the greater “where powerful" men are involved, 1 W. Hawkins, Pleas of the Crown 349 (6th ed. 1787). Accordingly, I agree with the majority that, with respect to suits based on claims that the prosecutor's decision to prosecute was malicious and without probable cause at least where there is no independent allegation that the prosecutor withheld exculpatory information from a grand jury or the court, see Part III, infra-the judicial process is better served by absolute immunity than by any other rule. I agree with the majority that it is not sufficient merely to set the standard of proof in a malicious prosecution case very high. If this were done, it might be possible to eliminate the danger of an unjust damage award against a prosecutor. However, the risk of having to defend a suit-even if certain of ultimate vindication— would remain a substantial deterrent to fearless prosecution. 409 WHITE, J., concurring in judgment Public prosecutors were also absolutely immune at common law from suits for defamatory remarks made during and relevant to a judicial proceeding, 1 Harper & James §§ 5.21, 5.22; Yaselli v. Goff, 12 F. 2d, at 402403; and this immunity was also based on the policy of protecting the judicial process. Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Col. L. Rev. 463 (1909). The immunity was not special to public prosecutors but extended to lawyers accused of making false and defamatory statements, or of eliciting false and defamatory testimony from witnesses; and it applied to suits against witnesses themselves for delivering false and defamatory testimony. 1 Harper & James § 5.22, pp. 423 424, and cases there cited; King v. Skinner, Lofft 55, 98 Eng. Rep. 529, 530 (K. B. 1772) (per Lord Mansfield); Yaselli v. Goff, 12 F. 2d, at 403. The reasons for this rule are also substantial. It is precisely the function of a judicial proceeding to determine where the truth lies. The ability of courts, under carefully developed procedures, to separate truth from falsity, and the importance of accurately resolving factual disputes in criminal (and civil) cases are such that those involved in judicial proceedings should be "given every encouragement to make a full disclosure of all pertinent information within their knowledge." 1 Harper & James § 5.22, p. 424. For a witness, this means he must be permitted to testify without fear of being sued if his testimony is disbelieved. For a lawyer, it means that he must be permitted to call witnesses without fear of being sued if the witness is disbelieved and it is alleged that the lawyer knew or should have known that the witness' testimony was false. Of course, witnesses should not be encouraged to testify falsely nor lawyers encouraged to call witnesses who testify falsely. However, if the risk of having to defend a civil damage suit is added to the deterrent against such WHITE, J., concurring in judgment 424 U.S. conduct already provided by criminal laws against perjury and subornation of perjury, the risk of self-censorship becomes too great. This is particularly so because it is very difficult if not impossible for attorneys to be absolutely certain of the objective truth or falsity of the testimony which they present. A prosecutor faced with a decision whether or not to call a witness whom he believes, but whose credibility he knows will be in doubt and whose testimony may be disbelieved by the jury, should be given every incentive to submit that witness' testimony to the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies. "Absolute privilege has been conceded on obvious grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist. It is essential to the ends of justice that all persons participating in judicial proceedings (to take a typical class for illustration) should enjoy freedom of speech in the discharge of their public duties or in pursuing their rights, without fear of consequences." Veeder, supra, 9 Col. L. Rev., at 469. For the above-stated reasons, I agree with the majority that history and policy support an absolute immunity for prosecutors from suits based solely on claims that they knew or should have known that the testimony of a witness called by the prosecution was false; and I would not attribute to Congress an intention to remove such immunity in enacting 42 U. S. C. § 1983. 5 5 For the reasons set forth in Part III, infra, absolute immunity would not apply to independent claims that the prosecutor has withheld facts tending to demonstrate the falsity of his witness' testimony where the alleged facts are sufficiently important to justify a finding of unconstitutional conduct on the part of the prosecutor. |