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Argument recap: Common law and common practice

The public generally perceives the Supreme Court as dealing with grand, abstract constitutional principles and writing esoteric opinions filled with judicial philosophy.  But while some cases might fit that description, much of the Court’s docket is comprised of cases that are less about dueling judicial philosophies, and more about weighing the practical implications of a particular rule in the context of the day-to-day functioning of the judicial system.

Such is the case in Rehberg v. Paulk, which was argued on Tuesday, November 1.  The issue in Rehberg is whether a complaining witness who provides grand jury testimony is absolutely immune from malicious prosecution liability under 42 U.S.C. § 1983.  Rehberg filed a federal complaint alleging that Paulk, an investigator for the District Attorney’s Office, had knowingly provided false testimony against him in multiple grand jury proceedings, which led to three indictments, all of which were subsequently dismissed.  Paulk moved to dismiss the complaint, arguing that in Briscoe v. LaHue (1983), the Court held that witnesses testifying at trial are absolutely immune from civil rights liability stemming from their testimony, and that his grand jury testimony was similarly shielded by immunity.  Rehberg countered that in Malley v. Briggs (1986) and Kalina v. Fletcher (1997), the Court held that a law enforcement officer and prosecutor, respectively, were not entitled to absolute immunity for acting as “complaining witnesses” by submitting affidavits in support of an arrest warrant and that Paulk was nothing more than a complaining witness.  The district court agreed with Rehberg and denied absolute immunity, while the Eleventh Circuit sided with Paulk and held that grand jury testimony, like trial testimony, is subject to absolute immunity.

The argument underscores the somewhat schizophrenic nature of the Supreme Court’s immunity jurisprudence.  The Court has repeatedly stated that it is not free to create immunities under Section 1983, and can only recognize immunities that existed in the common law in 1871, when the statute was enacted.  On the other hand, the Court has, on several occasions, been less concerned with the common law foundation for immunity than the practical implications of failing to extend immunity to particular functions related to judicial proceedings.

Rehberg’s attorney, Andrew J. Pincus of Washington, D.C., led with what one would think to be the dispositive point in the case:  at common law, complaining witnesses were not immune from malicious prosecution claims for testimony in grand jury proceedings.  But then, from a practical standpoint, the Court started to nibble around the edges.  JusticeAlito queried whether there is even such a thing as a complaining witness in the context of a federal grand jury, since the grand jury itself returns the indictment, not the individual witness.  Pincus replied that grand juries performed the same function at common law in 1871, yet complaining witnesses could be sued for malicious prosecution.  The Chief Justice and Justice Alito both noted that several witnesses might testify in a grand jury proceeding, each on a different point, and they asked how courts could determine which of them is a complaining witness for purposes of liability.   Pincus again responded that these sorts of questions come up in the context of common law tort claims, which suggests that they are not insurmountable.

Justice Ginsburg then expressed concern that, because the prosecutor actually instigates a prosecution but has absolute immunity, if Paulk simply provided testimony at the prosecutor’s bidding then he could not be the “prime mover” of the prosecution.  Pincus pointed out that here the complaint alleges much more – viz., that Paulk conspired with the prosecutor to bring the charges – and that the first indictment specifically listed Paulk as the complainant.

Justice Kennedy asked whether a witness who is appearing involuntarily by way of subpoena could be a complaining witness.   Pincus responded in the negative, explaining that under those circumstances the witness did nothing more than simply provide testimony on an involuntary basis.  He drew a distinction between a witness who did nothing more than testify in response to a subpoena , and someone who approaches a prosecutor, urges an indictment, and is then subsequently subpoenaed.  Justice Alito then asked whether merely issuing a subpoena will insulate a grand jury witness from liability and –if so – why the prosecution wouldn’t just subpoena every witness.  Pincus replied that the issuance of a subpoena would not negate conduct by the witness – such as urging the prosecutor to bring the charges in the first instance –that occurred before the grand jury proceedings.  .

Justice Kagan next inquired whether, in a case in which the prosecutor is the “prime mover,” there can ever be a complaining witness.  Pincus noted that the Court has indicated in prior cases that the fact that the prosecutor is ultimately the one who decides whether to bring charges does not insulate others in the chain of causation from liability for an improper prosecution.  And when Justice Scalia asked whether a prosecutor can ever be a complaining witness, Pincus responded in the negative.  Justice Scalia then asked how far back the chain of causation can go:  if a complaining witness is a person who instigates the prosecution, what about the person who “instigates the instigator” or even the “instigator of the instigator of the instigator”?  Pincus responded that these sorts of causation issues have already been sorted out in the context of common law malicious prosecution tort actions going back to 1871; thus, the Court is not writing on a “blank slate.”

Justice Kagan asked whether there can be a malicious prosecution claim based upon grand jury testimony alone, or whether the witness had to have engaged in other acts prior to the grand jury proceedings.  Pincus explained that testimony alone could – and, at common law, did – support a malicious prosecution claim.  Justice Scalia again raised the specter of a witness being compelled to testify via subpoena, asking whether that makes the witness a complaining witness with potential liability even if that is the only conduct attributed to the witness.  Pincus again clarified that if the only act the witness performs is providing testimony involuntarily in a grand jury proceeding, he would not be a complaining witness and would therefore not be subject to potential liability.

Justice Breyer then shifted the argument to policy considerations.  He noted that the Court has granted absolute immunity to prosecutors and government witnesses at trials, and that a grand jury is sort of like a trial, with testimony under oath.  He also noted the confidential nature of grand jury proceedings, and the concern that allowing lawsuits to proceed might undermine this secrecy.  He asked Pincus what countervailing policy considerations would justify denying absolute immunity.  Pincus noted that the Court granted absolute immunity to trial witnesses in Briscoe because it did not want to deter people from coming forward to testify at trial, and it made clear that the open and adversarial nature of trial provided safeguards against false testimony.  Neither of those protections is available in grand jury proceedings.

Justice Alito and Justice Scalia then sought clarification of the common law rule for grand jury testimony and whether in fact Pincus was asking the Court to adopt a different standard.  Pincus explained that at common law all witnesses – complaining or otherwise – were immune from liability for defamation.  However, complaining witnesses could be liable for malicious prosecution.  That is the rule Rehberg asks the Court to adopt.

Justice Sotomayor inquired about the position taken by the United States in its amicus brief – namely, that even if absolute immunity applies to grand jury testimony, the case should be remanded to the Eleventh Circuit to determine if the complaint alleged non-testimonial conduct by Paulk that might support a malicious prosecution claim.  Pincus replied that the complaint did allege additional conduct by Paulk, contending that he conspired with the district attorney to fabricate the evidence that he gave, and that to the extent other non-testimonial conduct was alleged, it would also support a malicious prosecution claim.

John C. Jones of Marietta, Georgia, arguing for Paulk, was almost immediately asked by Justice Scalia if someone who improperly instigates a grand jury proceeding but doesn’t testify could be sued for malicious prosecution.  When Jones replied in the affirmative, Scalia then asked whether his answer would change if that same person provides testimony in the grand jury proceeding that he instigated – that is, whether the “testimony bathes him clean . . . .”  Jones attempted to clarify, noting that in such a situation there might still be liability, because the malicious prosecution claim is based on something other than just the testimony.

Justices Kagan and Kennedy then asked Jones whether the Solicitor General correctly invited the Court to remand if it found absolute immunity for testimony, given the allegations that there is non-testimonial conduct to support the malicious prosecution claim.  Jones began to argue that the question of non-testimonial conduct was not raised below and has therefore been waived, but he was quickly cut off by Justices Kennedy and Scalia, who are highly skeptical of any waiver claim.  Jones retreated slightly, telling the Court that if the matter is remanded to the district court, then the plaintiffs might be free to amend.

Justice Kagan then set Jones down a bit of a slippery slope.  Assuming a plaintiff can point to non-testimonial acts to support a malicious prosecution claim, can the defendant’s grand jury testimony otherwise come in as evidence?  Jones replied that at common law that was exactly what happened.  A defendant could be liable for making the criminal complaint in the first instance, and the defendant’s trial testimony would then be used to show malice.  Justice Breyer found that rule a little puzzling, explaining that he would have thought that in the context of trial testimony under Briscoe, the testimony couldn’t come in for any purpose.  Jones then noted that use of the testimony as evidence is fairly limited, since a plaintiff would have to point to some non-testimonial conduct by the witness before it could be used.  Justice Breyer, however, pointed out that there will always be “something else” that a witness allegedly did outside the courtroom that may have been part of the prosecution.  A witness invariably talks to someone else before providing testimony and doesn’t “think of this thing for the first time in the grand jury room.”

Justice Alito expressed similar concerns, asking whether there would ever be a situation where someone would qualify as a complaining witness, but not have engaged in conduct outside of the grand jury proceeding that would be sufficient to support a malicious prosecution claim.  He pointed out that if that situation doesn’t exist, then there is essentially no difference between Rehberg’s and Paulk’s positions. The point is compelling:  if someone providing testimony to grand jury has invariably engaged in other non-testimonial conduct, and the grand jury testimony comes in as evidence of malice anyway, then why bother having a rule of absolute immunity? Jones simply reiterated his point that in the typical case investigators bring material to the district attorney, and it is the district attorney who makes the independent decision to prosecute.

Justice Ginsburg concentrated on the difference between this case and Kalina and Malley, noting that there is no absolute immunity for submitting a false affidavit to a judge to secure a warrant, and that a judge is probably more of a safeguard in a warrant proceeding than a prosecutor is in a grand jury proceeding.  Jones responded that the warrant situation is different because the officer can manipulate presentation of the evidence, and witnesses are largely voluntary since they are not subject to subpoena power.  Justice Ginsburg got Jones to admit that if the criminal proceedings here were initiated by an accusation supported by an affidavit, there would be no absolute immunity under Malley and Kalina.  She noted that Georgia law treats initiation of criminal proceedings by way of accusation identically to proceedings prompted by indictment, and queried why the immunity rules shouldn’t be the same for both – namely, no absolute immunity but only qualified immunity under Malley and Kalina.  Jones again emphasized the difference between initiating a prosecution by way of an affidavit, with a witness coming forward voluntarily, without the constraint of a prosecutor, and a grand jury where a witness might be subject to subpoena and the prosecutor controls the proceedings.

Justice Sotomayor returned to the not entirely clear distinction between a prosecution based upon non-testimonial conduct and one based on testimony alone.  She posited the hypothetical of a witness sitting down with the prosecutor before the grand jury proceedings and going chapter and verse through the potential testimony and then later presenting the false testimony to the grand jury, pointing out that when she was a prosecutor she rarely called a witness to a grand jury unless she had spoken with him before.  Jones at first suggested that there would be no viable malicious prosecution claim under that scenario because the only way the act could be proven would be by utilizing the very grand jury testimony that is subject to immunity.  When Justice Sotomayor then asked whether there might be a viable claim if there were other, independent evidence of the statements made to the prosecutor prior to the grand jury proceedings, Jones conceded that in that case yes, there might potentially be liability.

Justice Ginsburg asked whether grand jury proceedings are the equivalent of trial proceedings, observing that there is no judge and no cross-examination.  Jones once again emphasized that grand jury proceedings have more trappings of a trial than the warrant proceedings at issue in Malley and Kalina, since the witness is subject to compulsory process, placed under oath, and the prosecutor controls presentation of the evidence.

In closing, Jones backed away a bit from his earlier concession that mere conversation with a prosecutor prior to presenting testimony to the grand jury could constitute an independent act that might support a malicious prosecution claim.  He noted that the common law recognized two distinct acts with respect to malicious prosecution:  first, initiating the complaint and becoming the complainant; and, second, testifying at the subsequent proceeding.  The latter could be used as evidence to prove your malicious intent in initially bringing the criminal charge.  The difference here, he submits, is that any discussion between a prosecutor and a witness before the grand jury proceeding cannot be viewed as an act initiating a prosecution, since the prosecutor performs the “independent act” of initiating prosecution by procuring the grand jury indictment.

In his rebuttal, Pincus again emphasized that there was no common law immunity for complaining witnesses in grand jury proceedings, and he pointed out that if the criminal case here had been initiated by an information, and Paulk’s grand jury testimony had instead been submitted via affidavit, under Malley and Kalina there would be no absolute immunity.  Justice Breyer inquired whether there are any jurisdictions that don’t extend immunity to grand jury testimony, and – if so – whether grand jury proceedings have been undermined in those jurisdictions.  Pincus noted that since Malley and Kalina, seven circuits have held there was no absolute immunity for grand jury testimony and there is no indication that the grand jury process had been impaired.  Justice Kagan commented that “the notion that you can sue an employee of a prosecutor when you can’t sue the prosecutor seems an odd rule.”  As time expired, Pincus replied that if this were a situation where Mr. Paulk was simply told what to do by a prosecutor and didn’t really do anything himself, then it’s possible that he won’t be found liable in any event.

The Court’s questions indicate that this case may turn less on the niceties of the common law than the realities of common practice in the criminal courts. If the reality is that grand jury witnesses invariably engage in non-testimonial conduct prior to the proceeding itself –meeting with prosecutors, gathering evidence – that might spawn a malicious prosecution suit in which the subsequent testimony is admitted as evidence of malice, there seems to be little point in granting absolute immunity for such testimony, since erosion of grand jury secrecy and entanglement in litigation would occur in any event. On the other hand, if the Court concludes that potential liability for grand jury testimony may impair the day-to-day functioning of grand juries, and that there are practical differences between grand juries and warrant proceedings, then it could extend Briscoe’s rule of absolute immunity.


Recommended Citation: Timothy Coates, Argument recap: Common law and common practice, SCOTUSblog (Nov. 3, 2011, 1:26 PM),