Wrongful convictions continue to plague the criminal justice system. Studies have identified prosecutorial misconduct as one of the causes of wrongful convictions.1 This misconduct is most frequently a prosecutor’s failure to comply with the Brady2 due process obligation to disclose exculpatory material to the defense. In some cases the misconduct consists of a prosecutor’s creation and use of fabricated evidence against the defendant.
Despite the obvious egregiousness of prosecutorial creation and use of fabricated evidence, wrongfully convicted defendants who seek to recover damages under 42 U.S.C. §1983 against a miscreant prosecutor typically have to overcome numerous obstacles, including prosecutorial immunity and proximate causation.
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