o'neill versus morale is decide whether to prosecute charges dismissed charges or a plea bargain of a few weeks before the rape trial against johnny o'neal was set to begin the prosecutor had concerns the rape victim's identification of o'neal was the prosecutor's main concern purportedly the rape victim begat the rape victim's identification began with two identifications from her tenth story window the prosecutor there were question that the then and in those circumstances attach to the prosecutor's investigator because it is a completely separate function the supreme being performed for trauma because the prosecutor tells them to do it and only for trial it would be different if the agent or the officer had gone out and come in sue is sponsored told the prosecutor this but he's acting as the agent of the prosecutor in this task and i'm missing something but yes judge i believe that this supreme court has made clear that the person who is performing the function whether it be the prosecutor the agent of the prosecutor the police officer or a dea agent best a gator is not what's important it's the function being performed so when the prosecutor is performing her function of trial preparation sitting in a room discussing tropper operation going over evidence certainly if a da investigator is performing that specific disappears yes to once the investigator performs a different function so the function of the prosecutor in determining yes we do need to further investigate this ten storey window or no we do not need to further investigate this that's the difficulty i think you have with the questions we're asking you well yes judge clearly a prosecutor and i would i would point to this court's decision in geraldo where this court's specifically stated is it a a function that a reasonable prosecutor would say this is something that a prosecutor would do and a reasonable prosecutor would say interviewing a witness is something a prosecutor would do and when you interview when is your obtaining additional evidence from that witness and when you're obtaining that evidence from that prosecutor our allegation based on the facts as we know them today without the benefit of discovery is that it was done at the request of the prosecutor we're making a difference of morals hadn't been involved in the original investigation of the words of  detective jones who is just doing that was the trial with the prosecutor he was helping her out and just was you know the kind of the person sit there during the trial and bring the evidence get the witnesses lined up and she said would you go out and make witness that is a discretionary act of the prosecutor's performing obtaining evidence however in this particular case morales is not performing an any discretionary act there is no discretionary act in a witness going to a scene and back to a prosecutor what he can see at that scene and the prosecutor who's exercising the discretion to check on this in order to get that you know in one even wrote county we said that investigative work may be entitle to immunity when it is integral to the over or king advocacy function so this is the prosecutor wanting to be sure he can advocate for it for this conviction and who send send someone out to see what what's what you can see from the window i mean we we haven't limited it the way you are urging us to limit it to what the prosecutor does in his or her office or no judge and if the prosecutor had this act as this court stated in geraldo when the court stated investigative acts reasonably related to decisions whether or not to begin or carry out a particular criminal prosecution or to defend a conviction or shielded by absolute immunity when for trial morales was performing an investigative act he was relaying facts she asked him to go so he was going out there to help our she asked him to go he went out there to help her but he was performing an act as a witness you had no discretion there was no the key to the supreme court's holding is that it's a function intimately associated with the judicial process a discretionary act an advocate torrie act morality is not performing any of that the prosecutor is certainly performing that and she's asking a witness go out and get the facts and if you would have came back and told her the truth we likely would not be here today a prosecutor relies on witness on on police witnesses to convey truthful facts to them and when to and when a police witness lives to a prosecutor a prosecutor cannot effectively seek justice i know you want to reserve time so let's hear from the government basis and the basis that we were discussing is prosecutorial immunity it's clear it can't be disputed that the prosecutor at the time she asked detective morale is to go to the apartment look out the window was acting in her advocacy function and she's asking directing someone while in that function perform a task so it's clearly so detective morales is clearly entitled to that same prosecutorial immunity so what's how does the immunity extend to carrying out the prosecutorial function not as you're told to do it but with coming with it would still be he would still be entitle to whatever immunity the prosecutor would be entitled to so say if the prosecutor went and did that same function herself and repair and falsely reported that the that she could see faces when she couldn't she would still be entitled to that immunity so so would the person she would be directing to do that function so anything that she would be entitled to he would be entitled to as well so the allegation that he was falsely reporting that he could look out the window i think is a relevant hard case not to come back and that the full suit somehow breaks the link between the two of them why you don't think we should view it that way i don't because because then because then you're going to render the immunity i think useless because the immunity is there for a reason that you're acting at the direction of the prosecutor whil because i think he's still acting at the direction of the prosecutor while any advocacy function and that would cover all actions taken under that let me ask you a hypothetical suppose the prosecutor said look i just got a phone call man to see what he has to say the officer goes comes back the officer goes home talks to the man and the man says look you know parker just hypothesized that he can claim immunity because he went out at the direction of the prosecutor but he comes back with with a complete fal we have a defendant who spent time in jail for a conviction that was ultimately vacated right yes and is it your position that the officer was telling the truth when he said he could see could i get a fight people from the window i mean if prosecutor that he could see facial features now there's no basis for the heightened specificity that he allegedly spoke to the prosecutor from his trial testimony because you're saying  when we're not alleging that i mean we're not conceding that his testimony was falls that all he testified to was what he could see the subjective observation that he could see faces from the tenth floor window on the street below and there's no evidence that that was a fault there's no indication if you look at the district attorney's response in state court to the motion of a case there's there's conviction that's that's that's noted in a footnote that they sent to but they sent an investigator but but it but what they said was what the what the actual basis was that the  complaining witness and her mother both recanted their testimony and then came evidence about someone who actually matched the description of the plaintiff that could have been the assailant that was that was the basis that you if the police officer had come back and told prosecutors do you really can identify faces from that window that might have made the prosecutor hesitate to pursue the case or at least you know do more investigative work or whatever probe with the witnesses and his client might not have been convicted so that's why this is considered significant and you're saying it it's entirely prosecutor immunity and i'm asking you whether that applies if the officer is not coming back and doing what the prosecutor told him to do which is tell me what you could really see i would also say that the district court found two bases it would he was entitle to gets on the stand the question is whether he should have come back and told the prosecutor window i don't think i mean again all he did was go to the window testify as to his own subjective state before the testimony because that otherwise false he would still be that he would still be entitled to munich because it would stop because again if he would be entitled to whatever the prosecutor would be entitled to so if the prosecutor went to the apartment and not him and prosecutorial immunity for prosecutors and their agents it's the same it's the same as the absolute immunity that attaches to trial testimony as a spring for cautioned in raipur that if you could if you could attack the press preparatory activity as well as the testimony then you could just easily circumvent the immunity the immunity is there for a reason and if you can come up with all these different hypotheticals and scenarios horrible reasons you don't get to you don't get to pursue it damages action against him but i think the question we've been probing you on is whether that link is is violated when the agent does not act as faithfully but ok we judge of the the extension of prosecutorial immunity to others is very rare we haven't found many cases on the subject this court  analyzed it recently and the whole case stating that individual employees who assist such an official who act under that officials direction and performing functions closely tied to the judicial process follow you just purchase questions does it matter whether what comes back is truthful or if the function is within the immunity if the person comes back and lies doesn't matter i don't think it matters i think the key is that is the function th court collene know as well as employer clearly state that it doesn't matter who performs the function in absolute immunity protection officials who lawyer who do the most corruptible horrible thing so what they do really doesn't matter the key is the function and when we look at the function being performed is it intimately associated to the judicial process and is it a discretionary function does it require a prosecutor to use his discretion in performing that function this function that morale is performed had no discretion necessary but it truthful witnesses  feel it is it is it is a critical function i just don't under employer and cleena i don't see how that is is part of the equation i think we just look at the function being performed if the function being perform and marella says no it doesn't you know it's fine i think it's good they're sitting down preparing for trial and no matter who it is the supreme court is clear it doesn't have to be a prosecutor it's the function that we look at is it a