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DA Wins Prosecutorial Immunity in Material Witness Order Dispute

By Robyn Hagan Cain on November 22, 2011 | Last updated on March 21, 2019

Dick Wolf taught us the basics of criminal prosecution long before law professors could shape our malleable minds. "In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime and the district attorneys who prosecute the offenders."

As it applies to our world now, we view these "two, separate, yet equally important groups" in terms of qualified immunity and prosecutorial immunity.

Frankly, we get so wrapped up in police officers' qualified immunity appeals that we forget about absolute prosecutorial immunity. That changes - at least briefly - today with this Second Circuit Court of Appeals opinion.

Stephanie Flagler sued Matthew Trainor, a Fulton County, N.Y. Assistant District Attorney, alleging that Trainor knowingly made false statements in support of a material witness order. While Trainor claimed that he was concerned that a criminal defendant was trying to persuade Flagler to flee the state to avoid testifying, Flagler said that she had only planned to leave for a vacation during the period in question.

Flagler further alleged that Trainor knew that she would return in time for the trial, and that she was arrested on a material witness arrest warrant one day after she notified Trainor that she would testify.

The district court dismissed Flagler's federal claims.

On appeal, the Second Circuit Court of Appeals noted that district attorneys are generally protected by prosecutorial immunity, but that immunity has its limits. Prosecutorial functions that are intimately associated with initiating or presenting a case are protected; conduct unrelated to advocacy, such as giving legal advice, holding a press conference, or acting as a complaining witness is not.

While the Supreme Court found in Kalina v. Fletcher that a prosecutor was not absolutely immune from liability for making false statements in support of an arrest warrant, the Second Circuit distinguished the Trainor's actions, noting that seeking a material witness order falls within the prosecutor's role as an advocate. As such, Trainor's alleged liberties with the truth in the material witness order protected under prosecutorial immunity.

Before you agree to represent a client who wants to file a claim against a prosecutor for wrongdoing, you may want to take a look at this opinion for a Second Circuit Court of Appeals review of prosecutorial functions. Flagler cannot proceed on her material witness warrant claims, but the court is allowing her to continue with several claims against Trainor that are unrelated to the warrant.

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