IV
The complaint in this case, while fundamentally based on the claim that the prosecutor knew or should have known that his witness had testified falsely in certain respects, does contain some allegations that exculpatory evidence and evidence relating to the witness' credibility had been suppressed. Insofar as the complaint is based on allegations of suppression or failure to disclose, the prosecutor should not, for the reasons set forth above, be absolutely immune. However, as the majority notes, the suppression of fingerprint evidence and the alleged suppression of information relating to certain pretrial lineups is not alleged to have been known in fact to the prosecutor -- it is simply claimed that the suppression is legally chargeable to him. While this may be so as a matter of federal habeas corpus law, it is untrue in a civil damage action.

The result of a lie-detector test claimed to have been suppressed was allegedly known to respondent, but it would have been inadmissible at Imbler's trial and is thus not constitutionally required to be disclosed. The alteration of the police artist's composite sketch after Imbler was designated as the defendant is not alleged to have been suppressed -- and in fact appears not to have been suppressed. The opinion of the California Supreme Court on direct review of Imbler's conviction states that "the picture was modified later, following suggestions of Costello and other witnesses," and that court presumably had before it only the trial record. The other items allegedly suppressed {*446} all relate to background information about only one of the three eyewitnesses to testify for the State, and were in large part concededly known to the defense and thus may not be accurately described as suppressed. The single alleged fact not concededly known to the defense which might have been helpful to the defense was that the State's witness had written some bad checks for small amounts and that a criminal charge based on one check was outstanding against him. However, the witness had an extensive criminal record which was known to but not fully used by the defense.

Thus, even taken as true, the failure to disclose the check charges is patently insufficient to support a claim of unconstitutional suppression of evidence.9 The Court {*447} has in the past, having due regard for the fact that the obligation of the government to disclose exculpatory evidence is an exception to the normal operation of an adversary system of justice, imposed on state prosecutors a constitutional obligation to turn over such evidence only when the evidence is of far greater significance than that involved here. See Moore v. Illinois, 408 U.S. 786 (1972). Thus, the only constitutional violation adequately alleged against the prosecutor is that he knew in his mind that testimony presented by him was false; and from a suit based on such a violation, without more, the prosecutor is absolutely immune. For this reason, I concur in the judgment reached by the majority in this case.

COUNSEL FOOTNOTES
* Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, and Russell Iungerich and Edward T. Fogel, Jr., Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging affirmance.
Joseph P. Busch and Patrick F. Healy filed a brief for the National District Attorneys Association as amicus curiae.

OPINION FOOTNOTES

1 This shot formed the basis of a second count against Imbler for assault, which was tried with the murder count.

2 This coat, identified by Mrs. Hasson as that worn by her husband's assailant, yielded a gun determined by ballistics evidence to be the murder weapon.

3 A fourth man who saw Hasson's killer leaving the scene identified Imbler in a pretrial lineup, but police were unable to find him at the time of trial.

4 Imbler also received a 10-year prison term on the assault charge. See n. 1, supra.

5 Brief for Respondent, App. A, p. 6. The record does not indicate what specific action was taken in response to Pachtman's letter. We do note that the letter was dated August 17, 1962, and that Imbler's execution, scheduled for September 12, 1962, subsequently was stayed. The letter became a part of the permanent record in the case available to the courts in all subsequent litigation.

6 Brief for Respondent 5.

7 See generally Napue v. Illinois, 360 U.S. 264 (1959); Brady v. Maryland, 373 U.S. 83 (1963).

8 The District Court found that Costello had given certain ambiguous or misleading testimony, and had lied flatly about his criminal record, his education, and his current income. As to the misleading testimony, the court found that either Pachtman or a police officer present in the courtroom knew it was misleading. As to the false testimony, the District Court concluded that Pachtman had "cause to suspect" its falsity although, apparently, no actual knowledge thereof. See 298 F. Supp. at, 799-807. The Supreme Court of California earlier had addressed and rejected allegations based on many of the same parts of Costello's testimony. It found either an absence of falsehood or an absence of prosecutorial knowledge in each instance. See In re Imbler, 60 Cal. 2d 554, 562-565, and n. 3, 387 P. 2d 6, 10-12, and n. 3 (1963).

9 See 298 F.Supp., at 809-811. The Supreme Court of California earlier had rejected similar allegations. See In re Imbler, supra, at 566-568, 387 P. 2d, at 12-13.

10 Title 42 U.S.C. § 1983, originally passed as § 1 of the Civil Rights Act of 1871, 17 Stat. 13, reads in full:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

11 See, e.g., Pierson v. Ray, 386 U.S. 547, 559 (1967) (Douglas, J., dissenting); Tenney v. Brandhove, 341 U.S. 367, 382-383 (1951) (Douglas, J., dissenting).

12 The Court described the immunity of judges as follows:
"Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it 'is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.'" 386 U.S., at 553-554 (citation omitted).

13 The procedural difference between the absolute and the qualified immunities is important. An absolute immunity defeats a suit at the outset, so long as the official's actions were within the scope of the immunity. The fate of an official with qualified immunity depends upon the circumstances and motivations of his actions, as established by the evidence at trial. See Scheuer v. Rhodes, 416 U.S. 232, 238-239 (1974); Wood v. Strickland, 420 U.S. 308, 320-322 (1975).

14 The elements of this immunity were described in Scheuer as follows:
"It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." 416 U.S., at 247-248.

15 In Tenney v. Brandhove, of course, the Court looked to the immunity accorded legislators by the Federal and State Constitutions, as well as that developed by the common law. 341 U.S., at 372-375. See generally Doe v. McMillan, 412 U.S. 306 (1973).

16 Fanale v. Sheehy, 385 F.2d 866, 868 (CA2 1967); Bauers v. Heisel, 361 F.2d 581 (CA3 1966), cert. denied, 386 U.S. 1021 (1967); Carmack v. Gibson, 363 F.2d 862, 864 (CA5 1966); Tyler v. Witkowski, 511 F.2d 449, 450-451 (CA7 1975); Barnes v. Dorsey, 480 F.2d 1057, 1060 (CA8 1973); Kostal v. Stoner, 292 F.2d 492, 493 (CA10 1961), cert. denied, 369 U.S. 868 (1962); cf. Guerro v. Mulhearn, 498 F.2d 1249, 1255-1256 (CA1 1974); Weathers v. Ebert, 505 F.2d 514, 515-516 (CA4 1974). But compare Hurlburt v. Graham, 323 F.2d 723 (CA6 1963), with Hilliard v. Williams, 465 F.2d 1212 (CA6), cert. denied, 409 U.S. 1029 (1972). See Part IV, infra.

17 E.g., Tyler v. Witkowski, supra, at 450; Kostal v. Stoner, supra, at 493; Hampton v. City of Chicago, 484 F.2d 602, 608 (CA7 1973), cert. denied, 415 U.S. 917 (1974). See n. 20, infra.

18 The Supreme Court of Indiana in Griffith cited an earlier Massachusetts decision, apparently as authority for its own holding. But that case, Parker v. Huntington, 68 Mass. 124 (1854), involved the elements of a malicious prosecution cause of action rather than the immunity of a prosecutor. See also Note, 73 U. Pa. L. Rev. 300, 304 (1925).

19 Smith v. Parman, 101 Kan. 115, 165 P. 663 (1917); Semmes v. Collins, 120 Miss. 265, 82 So. 145 (1919); Kittler v. Kelsch, 56 N.D. 227, 216 N.W. 898 (1927); Watts v. Gerking, 111 Ore. 654, 228 P. 135 (1924) (on rehearing). Contra, Leong Yau v. Carden, 23 Haw. 362 (1916).

20 The immunity of a judge for acts within his jurisdiction has roots extending to the earliest days of the common law. See Floyd v. Barker, 12 Coke 23, 77 Eng. Rep. 1305 (1608). Chancellor Kent traced some of its history in Yates v. Lansing, 5 Johns. 282 (N.Y. 1810), and this Court accepted the rule of judicial immunity in Bradley v. Fisher, 13 Wall. 335 (1872). See n. 12, supra. The immunity of grand jurors, an almost equally venerable common-law tenet, see Floyd v. Barker, supra, also has been adopted in this country. See, e.g., Turpen v. Booth, 56 Cal. 65 (1880); Hunter v. Mathis, 40 Ind. 356 (1872). Courts that have extended the same immunity to the prosecutor have sometimes remarked on the fact that all three officials - judge, grand juror, and prosecutor - exercise a discretionary judgment on the basis of evidence presented to them. Smith v. Parman, supra, Watts v. Gerking, supra. It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as "quasi-judicial" officers, and their immunities being termed "quasi--judicial" as well. See, e.g., Turpen v. Booth, supra, at 69; Watts v. Gerking, supra, at 661, 228 P., at 138.

21 See, e.g., Gregoire v. Biddle, 177 F.2d 579 (CA2 1949), cert. denied, 339 U.S. 949 (1950); Cooper v. O'Connor, 69 App. D.C. 100, 99 F.2d 135, 140-141 (1938); Anderson v. Rohrer, 3 F. Supp. 367 (SD Fla. 1933); Pearson v. Reed, 6 Cal. App. 2d 277, 44 P. 2d 592 (1935); Anderson v. Manley, 181 Wash. 327, 43 P. 2d 39 (1935). See generally Restatement of Torts § 656 and comment b (1938); 1 F. Harper & F. James, The Law of Torts § 4.3, pp. 305-306 (1956).

22 This is illustrated by the history of the disagreement as to the culpability of the prosecutor's conduct in this case. We express no opinion as to which of the courts was correct. See nn. 8 and 9, supra.

23 In the law of defamation, a concern for the airing of all evidence has resulted in an absolute privilege for any courtroom statement relevant to the subject matter of the proceeding. In the case of lawyers the privilege extends to their briefs and pleadings as well. See generally 1 T. Cooley, Law of Torts § 153 (4th ed. 1932); 1 F. Harper & F. James, supra, § 5.22. In the leading case of Hoar v. Wood, 44 Mass. 193 (1841), Chief Justice Shaw expressed the policy decision as follows:
"Subject to this restriction [of relevancy], it is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech, in conducting the causes and advocating and sustaining the rights, of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions." Id., at 197-198.

24 A prosecutor often must decide, especially in cases of wide public interest, whether to proceed to trial where there is a sharp conflict in the evidence. The appropriate course of action in such a case may well be to permit a jury to resolve the conflict. Yet, a prosecutor understandably would be reluctant to go forward with a close case where an acquittal likely would trigger a suit against him for damages. Cf. American Bar Association Project on Standards for Criminal Justice, Prosecution and Defense Function § 3.9 (c) (Approved Draft 1971).

25 The possibility of personal liability also could dampen the prosecutor's exercise of his duty to bring to the attention of the court or of proper officials all significant evidence suggestive of innocence or mitigation. At trial this duty is enforced by the requirements of due process, but after a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction. Cf. ABA Code of Professional Responsibility § EC 7-13 (1969); ABA, Standards, supra, § 3.11. Indeed, the record in this case suggests that respondent's recognition of this duty led to the post-conviction hearing which in turn resulted ultimately in the District Court's granting of the writ of habeas corpus.

26 In addressing the consequences of subjecting judges to suits for damages under § 1983, the Court has commented:
"Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation." Pierson v. Ray, 386 U.S., at 554.

27 Petitioner contends that his suit should be allowed, even if others would not be, because the District Court's issuance of the writ of habeas corpus shows that his suit has substance. We decline to carve out such an exception to prosecutorial immunity. Petitioner's success on habeas, where the question was the alleged misconduct by several state agents, does not necessarily establish the merit of his civil rights action where only the respondent's alleged wrongdoing is at issue. Certainly nothing determined on habeas would bind respondent, who was not a party. Moreover, using the habeas proceeding as a "door-opener" for a subsequent civil rights action would create the risk of injecting extraneous concerns into that proceeding. As we noted in the text, consideration of the habeas petition could well be colored by an awareness of potential prosecutorial liability.

28 "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishment, paints, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life."

29 California also appears to provide for criminal punishment of a prosecutor who commits some of the acts ascribed to respondent by petitioner. Cal. Penal Code § 127 (1970); cf. In re Branch, 70 Cal. 2d 200, 210-211, 449 P. 2d 174, 181 (1969).

30 See ABA Code of Professional Responsibility § EC 7-13. See generally ABA, Standards, supra, n. 24, §§ 1.1 (c), (e), and Commentary, pp. 44-45.

31 Guerro v. Mulhearn, 498 F.2d, at 1256; Hampton v. City of Chicago, 484 F.2d, at 608-609; Robichaud v. Ronan, 351 F.2d 533, 537 (CA9 1965); cf. Madison v. Purdy, 410 F.2d 99 (CA5 1969); Lewis v. Brautigam, 227 F.2d 124 (CA5 1955). But cf. Cambist Films, Inc. v. Duggan, 475 F.2d 887, 889 (CA3 1973).

32 Both in his complaint in District Court and in his argument to us, petitioner characterizes some of respondent's actions as "police-related" or investigative. Specifically, he points to a request by respondent of the police during a courtroom recess that they hold off questioning Costello about a pending bad-check charge until after Costello had completed his testimony. Petitioner asserts that this request was an investigative activity because it was a direction to police officers engaged in the investigation of crime. Seen in its proper light, however, respondent's request of the officers was an effort to control the presentation of his witness' testimony, a task fairly within his function as an advocate.

33 We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.

34 MR. JUSTICE WHITE, concurring in the judgment, would distinguish between willful use by a prosecutor of perjured testimony and willful suppression by a prosecutor of exculpatory information. In the former case, MR. JUSTICE WHITE agrees that absolute immunity is appropriate. He thinks, however, that only a qualified immunity is appropriate where information relevant to the defense is "unconstitutionally withheld... from the court." Post, at 443.

We do not accept the distinction urged by MR. JUSTICE WHITE for several reasons. As a matter of principle, we perceive no less an infringement of a defendant's rights by the knowing use of perjured testimony than by the deliberate withholding of exculpatory information. The conduct in either case is reprehensible, warranting criminal prosecution as well as disbarment. See supra, at 429 nn. 29 and 30. Moreover, the distinction is not susceptible of practical application. A claim of using perjured testimony simply may be reframed and asserted as a claim of suppression of the evidence upon which the knowledge of perjury rested. That the two types of claims can thus be viewed is clear from our cases discussing the constitutional prohibitions against both practices. Mooney v. Holohan, 294 U.S. 103, 110 (1935); Alcorta v. Texas, 355 U.S. 28, 31-32 (1957); Brady v. Maryland, 373 U.S. 83, 86 (1963); Miller v. Pate, 386 U.S. 1, 4-6 (1967); Giglio v. United States, 405 U.S. 150, 151-155 (1972). It is also illustrated by the history of this case: at least one of the charges of prosecutorial misconduct discussed by the Federal District Court in terms of suppression of evidence had been discussed by the Supreme Court of California in terms of use of perjured testimony. Compare Imbler v. Craven, 298 F. Supp., at 809-811, with In re Imbler, 60 Cal. 2d, at 566-567, 387 P. 2d, at 12-13. Denying absolute immunity from suppression claims could thus eviscerate, in many situations, the absolute immunity from claims of using perjured testimony.

We further think MR. JUSTICE WHITE'S suggestion, post, at 440 n. 5, that absolute immunity should be accorded only when the prosecutor makes a "full disclosure" of all facts casting doubt upon the State's testimony, would place upon the prosecutor a duty exceeding the disclosure requirements of Brady and its progeny, see 373 U.S., at 87; Moore v. Illinois, 408 U.S. 786, 795 (1972); cf. Donnelly v. DeChristoforo, 416 U.S. 637, 647-648 (1974). It also would weaken the adversary system at the same time it interfered seriously with the legitimate exercise of prosecutorial discretion.

CONCURRENCE FOOTNOTES

1 The Court emphasized that the immunity had a lengthy history at common law, and was written into the United States Constitution in the "Speech or Debate Clause" and into many state constitutions as well. 341 U.S., at 372-373.

2 The Court concluded that "[f]ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine in Bradley v. Fisher, 13 Wall. 335 (1872)." 386 U.S., at 553-554.

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.

4 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.

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.

6 Immunity of public officials for false arrest was, unlike immunity of public officials for malicious prosecution, not absolute, 1 Harper & James §§ 3.17 and 3.18; and when prosecutors were sued for that tort, they were not held absolutely immune. Schneider v. Shepherd, 192 Mich. 82, 158 N.W. 182 (1916). A similar result has obtained in the lower courts in suits under 42 U.S.C. § 1983 against prosecutors for initiating unconstitutional arrests. Robichaud v. Ronan, 351 F.2d 533 (CA9 1965); Hampton v. Chicago, 484 F.2d 602 (CA7 1973); Wilhelm v. Turner, 431 F.2d 177, 180-183 (CA8 1970) (dictum); Balistrieri v. Warren, 314 F. Supp. 824 (WD Wis. 1970). See also Ames v. Vavreck, 356 F. Supp. 931 (Minn. 1973).

7 The reasons for making a prosecutor absolutely immune from suits for defamation would apply with equal force to other suits based solely upon the prosecutor's conduct in the courtroom designed either to bring facts or arguments to the attention of the court. Thus, a prosecutor would be immune from a suit based on a claim that his summation was unconstitutional or that he deliberately elicited hearsay evidence in violation of the Confrontation Clause.

8 There may be circumstances in which ongoing investigations or even the life of an informant might be jeopardized by public disclosure of information thought possibly to be exculpatory. However, these situations may adequately be dealt with by in camera disclosure to the trial judge. These considerations do not militate against disclosure, but merely affect the manner of disclosure.

9 The majority points out that the knowing use of perjured testimony is as reprehensible as the deliberate suppression of exculpatory evidence. This is beside the point. The reason for permitting suits against prosecutors for suppressing evidence is not that suppression is especially reprehensible but that the only effect on the process of permitting such suits will be a beneficial one -- more information will be disclosed to the court; whereas one of the effects of permitting suits for knowing use of perjured testimony will be detrimental to the process -- prosecutors may withhold questionable but valuable testimony from the court.

The majority argues that any "claim of using perjured testimony simply may be reframed and asserted as a claim of suppression." Our treatment of the allegations in this case conclusively refutes the argument. It is relatively easy to allege that a government witness testified falsely and that the prosecutor did not believe the witness; and, if the prosecutor's subjective belief is a sufficient basis for liability, the case would almost certainly have to go to trial. If such suits were permitted, this case would have to go to trial. It is another matter entirely to allege specific objective facts known to the prosecutor of sufficient importance to justify a conclusion that he violated a constitutional duty to disclose. It is no coincidence that petitioner failed to make any such allegations in this case. More to the point -- and quite apart from the relative difficulty of pleading a violation of Brady v. Maryland, 373 U.S. 83 (1963) -- a rule permitting suits based on withholding of specific facts unlike suits based on the prosecutor's disbelief of a witness' testimony will have no detrimental effect on the process. Risk of being sued for suppression will impel the prosecutor to err if at all on the side of overdisclosure. Risk of being sued for disbelieving a witness will impel the prosecutor to err on the side of withholding questionable evidence. The majority does not appear to respond to this point. Any suggestion that the distinction between suits based on suppression of facts helpful to the defense and suits based on other kinds of constitutional violations cannot be understood by district judges who would have to apply the rule is mystifying. The distinction is a simple one.

Finally, the majority states that the rule suggested in this concurring opinion "would place upon the prosecutor a duty exceeding the disclosure requirements of Brady and its progeny." The rule suggested in this opinion does no such thing. The constitutional obligation of the prosecutor remains utterly unchanged. We would simply not grant him absolute immunity from suits for committing violations of pre-existing constitutional disclosure requirements, if he committed those violations in bad faith.

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