John G. Roberts, Jr.: We will hear argument first this morning in Case 10-788, Rehberg v. Paulk. Mr. Pincus.
Andrew J. Pincus: Thank you, Mr. Chief Justice, and may it please the Court: This Court has twice held, in Malley and in Kalina, that a complaining witness who sets a criminal prosecution in motion by submitting a false affidavit is entitled to qualified immunity, but not absolute immunity, in an action under section 1983. The Court rested that conclusion on its determination that complaining witnesses were subject to damages liability at common law when -- in 1871 when section 1983 was enacted. The question in this case is whether the rule of Malley and Kalina also applies to a complaining witness who sets a prosecution in motion by testifying before a grand jury. Again, the common law provides the answer. The law is clear that in 1871 damages liability could be based on false grand jury testimony.
Samuel A. Alito, Jr.: The problem I have with your argument is that I don't really know what a complaining witness is in the grand jury context. Let's take the Federal grand jury as an example. Do you think there are complaining witnesses before Federal grand juries?
Andrew J. Pincus: I think there -- there can be. It depends obviously on the -- the circumstances, Your Honor, but -- but there certainly can be.
Samuel A. Alito, Jr.: A complaining witness I would think is a person who files a complaint, who causes -- in the Federal system it would be someone who files a complaint and attests to it under Rule 5. That person is asking that charges be brought. That's what it means to be a complaining witness, filing a complaint. Nobody -- no witness before a Federal grand jury asks that an indictment be returned. They provide testimony, and they may want an indictment to be returned, but it's the prosecutor who asks for the indictment to be returned. So I don't see how there is a complaining witness in that sense in the traditional grand jury context.
Andrew J. Pincus: Well, Your Honor, the common law confronted precisely the same situation, and after public prosecutors came into being and when grand juries were empaneled by them, the common law concluded that, both in 1871 and in the present, that there can be a person who is the motivating force behind the prosecution.
John G. Roberts, Jr.: A -- a person? What -- what if you have three elements to a crime, and you have one witness for each one. You see somebody sees the guy trying to get into a car. Well, maybe he left it -- maybe he locked his keys in. Another sees the guy walking around with a television. It might be his. A third sees the guy selling the television to somebody else. There's nothing wrong with that. Each one testifies before the grand jury. Who is the complaining witness?
Andrew J. Pincus: Well, Your Honor, at -- at common law the complaining witness was more than just someone who gave evidence that was necessary for the warrant or the indictment to issue. It was someone who was pushing for the prosecution to be brought. All of these problems, of course, occurred at common law and they also occur in connection with the circumstances that the Court addressed in Malley and Kalina.
Samuel A. Alito, Jr.: Well, let me give you another example that I think happens with some frequency. You have a Federal grand jury and you have testimony by an FBI or a DEA case agent, a person who's been working on the case, and that witness provides a lot of information supporting the charges that the prosecutor wants returned. You also have a cooperating witness, someone who has entered into a plea bargain and in exchange for that is providing a lot of incriminating testimony. Now, is there a complaining witness in that situation?
Andrew J. Pincus: Well, again, Your Honor, there can be. It depends -- it--
Samuel A. Alito, Jr.: Which one is it?
Andrew J. Pincus: --It could be both.
Samuel A. Alito, Jr.: Both?
Andrew J. Pincus: It could be one or -- it could be -- it could be one or the other. I think these -- these circumstances again are not unknown to the common law in the States. They--
Ruth Bader Ginsburg: Mr. Pincus, you said -- I think you used the words "the one who motivated the charge. " or something to that effect. And I'm looking at the complaint that was filed in this case and it says, and this is on page 28 of the joint appendix. It says Mr. Hodges -- that's the prosecutor -- know or should have known there was no probable cause. Mr. Hodges, "directed Mr. Paulk to appear before the grand jury and attest to the truth of such charges. " So if anyone was the instigator, it was the prosecutor, not his aide. But the prosecutor gets absolute immunity.
Andrew J. Pincus: --Well, Your Honor, I -- I don't think we know, because the complaint also alleges that Mr. Paulk knew that his testimony was false and -- and made it -- and gave his testimony anyway.
Ruth Bader Ginsburg: But if he did it -- if he did at the prosecutor's bidding, then he is not the prime mover.
Andrew J. Pincus: Well, the -- the complaint also alleges that they were conspiring together to bring this complaint. And so again, I think the facts will be developed. The -- the first indictment in fact listed Mr. Paulk as the complainant. So in many situations the concerns that Justice Alito was pointing to won't be present because there will be a clear complainant, as there was in this case.
Elena Kagan: But do you--
Anthony M. Kennedy: What if an important witness is reluctant to testify, but is issued a subpoena by the United States attorney to appear before the grand jury, and then with reluctance he comes forward, but under oath provides all of the key testimony necessary to indict. Is he a complaining witness?
Andrew J. Pincus: I think some lower courts have said no, Your Honor. Some lower courts have said--
Anthony M. Kennedy: Well, what's the test we are supposed to use to decide?
Andrew J. Pincus: --Well, the -- the test that this Court has set forth is whether the complaining witness is someone who sets the prosecution in motion. That's -- that's the phrase that this Court has used and that's the phrase that's -- that is reflected in the common law, based on the common law. And the lower courts have not had a problem applying that case. There are seven circuits that now have adopted the rule that--
Anthony M. Kennedy: In the hypothetical I gave, what's the answer?
Andrew J. Pincus: --I would say in the hypothetical you gave, Your Honor, that that person is not a complaining witness, because he did nothing other than come forward when he was subpoenaed. If someone comes forward to the prosecutor, urges an indictment, urges a prosecution and then subsequently is subpoenaed, that might be a different case because you have--
John G. Roberts, Jr.: Urges, urges a prosecution. One area that causes me concern here are the domestic violence cases, where someone may well report an episode, but by the time it gets to whatever the indictment procedure is, a grand jury or otherwise, is unwilling to -- to testify and pursue it. And yet that person may be the one who started the prosecution in motion. Is that individual a complaining witness?
Andrew J. Pincus: --That -- that person may be a complaining witness. You know, at common law the complaining witness also has to be--
John G. Roberts, Jr.: No, he says -- he or she says at the time, I -- I don't want prosecution to go forward. I -- you know, I would prefer that it not go forward.
Andrew J. Pincus: --Then -- then that fact would obviously mitigate against her being a complaining witness. But -- but these--
Antonin Scalia: Mitigate? Come on.
Andrew J. Pincus: --Yes. She would not be--
Antonin Scalia: Does it make her not a complaining witness?
Andrew J. Pincus: --Yes, she would not be a complaining witness, Your Honor.
Antonin Scalia: Okay.
Andrew J. Pincus: But I -- just to step back--
Samuel A. Alito, Jr.: The holding -- the holding that you are asking for isn't going to do very much good if the -- if the mere issuance of the grand jury subpoena renders the person not a complaining witness.
Andrew J. Pincus: --I don't think--
Samuel A. Alito, Jr.: In that situation, then why not subpoena everybody?
Andrew J. Pincus: --I don't think the mere issuance of the subpoena does negate things that might -- take the hypothetical where there is someone who goes to the prosecutor, says there should be a prosecution here, maybe does the things that the hospital is alleged to have done in this case, and then subsequently is subpoenaed. I don't think the subpoena negates that prior activity. I don't think you can say, oh, now that you are subpoenaed we wipe away everything that you have done to set the prosecution in motion. But I think in the hypothetical that you propounded, where there -- the sole fact is someone doesn't do anything, they are subpoenaed to come before the grand jury and they give their evidence, that wouldn't meet the test. But--
Elena Kagan: --In a case where the prosecutor is the prime mover, can there ever be a complaining witness? Where the prosecutor is making the decisions, can there ever be a complaining witness?
Andrew J. Pincus: --I think there can be, Your Honor. And in fact what this Court has indicated in other cases is that the fact that the prosecutor ultimately decides to seek the charge does not negate what's happened before. In the Hartman case, which dealt with a retaliatory prosecution under -- a First Amendment retaliation prosecution, the Court said the postal inspectors, who in that case were alleged to have been the motivating force behind the retaliatory prosecution, could be held liable if there also was no probable cause.
Antonin Scalia: Is the prosecutor a complaining witness?
Andrew J. Pincus: The prosecutor can't be a complaining witness because the complaining witness is the person who provides the impetus.
Antonin Scalia: Who instigates the prosecutor.
Andrew J. Pincus: Yes.
Antonin Scalia: Okay. What about the person who instigates the instigator?
Andrew J. Pincus: I'm not -- I'm not sure of the--
Antonin Scalia: Well, somebody who comes up to somebody and says: You know, you ought to -- you ought to try to start a prosecution against this person.
Andrew J. Pincus: --At common law--
Antonin Scalia: They say: Yeah, that's a good idea. So that person goes and -- and gets a prosecution started.
Andrew J. Pincus: --And at common law that person could be -- could be liable for malicious prosecution because--
Antonin Scalia: The person who instigates the instigator?
Andrew J. Pincus: --The person who in testimony -- a complaining witness, as Your Honor pointed out in -- in your opinion in Kalina, a complaining witness does not have to actually participate in the judicial proceedings. To be a complaining witness at common law, you could be a person who outside the judicial process pushed forward and was the mover behind the--
Antonin Scalia: So the instigator of the instigator is -- is a complaining witness or can be?
Andrew J. Pincus: --Can be.
Antonin Scalia: And you know what the next question's going to be, right?
Andrew J. Pincus: But tort law -- I mean--
Antonin Scalia: The instigator of the instigator of the instigator. I mean, does this go back forever?
Andrew J. Pincus: --I think that's right, Your Honor. But I don't think the Court is writing on a blank slate here. Tort law has addressed these issues. There has been a malicious prosecution tort for hundreds of years. There certainly was in 1871, and tort law has dealt and continues to deal with the questions of causation and proximate cause and all of the questions that arise in these kinds of cases. So it's not as if the Court here would be writing on a blank slate. And I think the critical thing is, the question here is whether or not there was an absolute immunity rule in 1871 for persons in the situation of the Respondent. That is the critical question that the Court has framed.
Ruth Bader Ginsburg: The -- the -- instigator, what you call the complaining witness, would have been -- immunity, identical testimony at the trial itself, right?
Andrew J. Pincus: Yes, trial -- because -- because -- well, the trial testimony could not be the basis for finding the person a complaining witness because by that point the prosecution has gotten rolling. But the question is what conduct can be used to prove that this is the person who was the instigator, the prime mover behind the prosecution.
Ruth Bader Ginsburg: It's only -- it's only what you call the complaining witness that gets this special treatment? All the other witnesses before the grand jury would be absolutely immune?
Andrew J. Pincus: Yes, Your Honor. That's what the common law rule was and that's what Congress confronted when it enacted section 1983 in 1871.
Elena Kagan: Could I make sure I understand what you just said, Mr. Pincus. When you said it can't be the testimony alone, is that right, that there have to be other acts exclusive of the testimony that make somebody a complaining witness?
Andrew J. Pincus: No, Your Honor, it could be the testimony alone. I didn't mean to say that. I think what I meant to say, maybe in response to Justice Alito's question, was the fact that testimony is under subpoena doesn't negate other evidence that's there. But the testimony alone can be enough, and there certainly are cases, common law cases from the 1800's, in which courts rely on testimony.
Elena Kagan: Rely on testimony, but rely on testimony exclusively; do you have he a cases that do that?
Andrew J. Pincus: Well, the cases are -- the case are a little bit obscure, Your Honor, about what the facts are that they are relying on. So I don't want to say that absolutely positively there is one--
Antonin Scalia: I really don't understand.
Andrew J. Pincus: --But I think it's a matter of logic.
Antonin Scalia: I don't understand this. You have one witness in the grand jury proceedings. That's the only witness. Can that witness fall within your rule and be the complaining witness?
Andrew J. Pincus: Absolutely, Your Honor.
Antonin Scalia: Just on the basis of the testimony alone?
Andrew J. Pincus: Yes. But there could be -- there could be other evidence as well. I think--
Antonin Scalia: So it's pretty risky to testify in a grand jury proceeding, then, right?
Andrew J. Pincus: --Well, the same--
Antonin Scalia: Because even though you haven't -- you don't care whether it comes out that way or not. You are subpoenaed and even though you are subpoenaed, you are going to hold me as a complaining witness.
Andrew J. Pincus: --It's the same risk that the affiants bore in Kalina and Malley and it's the same risk that the common law imposes on complaining witnesses.
Antonin Scalia: Well, the affiants came forward. That's a different situation, isn't it? They indeed were self-starting. But the person who is subpoenaed to testify at a grand jury is not self-starting. And you're saying that that person's mere presence and the mere fact of that person's testifying is enough to hold him to be the complaining witness.
Andrew J. Pincus: Your Honor, maybe I confused the hypotheticals. I think we have one situation where there's someone, all they've done is they've been subpoenaed and they've come forward and they've given their evidence.
Antonin Scalia: Yes.
Andrew J. Pincus: I think it would be very hard for that person to be labeled a complaining witness.
Antonin Scalia: Hard or impossible?
Andrew J. Pincus: Impossible.
Antonin Scalia: Hard or impossible?
Andrew J. Pincus: I think it would be impossible, because I don't think there's any evidence that that person--
Antonin Scalia: That's a different word, thank you. So the testimony alone cannot be the basis?
Andrew J. Pincus: --Compelled testimony alone. A person who testifies voluntarily before the grand jury I think is a different situation.
Samuel A. Alito, Jr.: You said that the issuance of a subpoena in itself is not sufficient to make somebody not a complaining witness. So if you are issued a subpoena you still might be a complaining witness if you really didn't need to get a subpoena. If you could have been persuaded to go without a subpoena, then maybe you could be a complaining witness.
Andrew J. Pincus: No, Your Honor. I think I was responding to a third, a third situation. So we have one situation where all someone does is testify under subpoena. We have another situation where someone testifies, that person not a complaining witness, someone who testifies voluntarily; that voluntary testimony certainly could be used as evidence.
Samuel A. Alito, Jr.: If somebody--
Andrew J. Pincus: And then the third situation -- excuse me Your Honor, I was just -- the third situation is where there is pre-testimony evidence and there is also the fact that that person testified under subpoena. I don't think the fact that that person testified under subpoena negates the fact that there is other evidence that that person may have been the person who pushed the prosecution forward. So that's the distinction that I was trying to draw.
Stephen G. Breyer: What is the reason why, if we give absolute immunity to the witness at a trial, we give absolute immunity to the prosecutors and government officials at the trial, and a grand jury is sort of like a trial, at least it's testimony under oath. And in addition there's this special thing about grand juries being secret, which if you allow people who are annoyed and they would be quite rightly angry, they have been acquitted, they had to go through this process, they'd want to sue somebody. If we let them sue, you will wreck the secrecy of a lot of cases. So I see a reason for treating the grand jury even more strictly. What's the reason for treating it less strictly?
Andrew J. Pincus: Well, I think there are two reasons, Your Honor. The first reason is that what this Court has said is that immunity decisions are based on the common law as--
Stephen G. Breyer: Suppose I don't accept that. Suppose I say, yes, I accept that, there's a relationship, but exactly what happened in 1871 is not precisely always the convincing feature for me. So I read what the situation is today, and it is I think as I described it. So given the situation today, my question remains.
Andrew J. Pincus: --Well, one -- one brief disagreement with your question, Your Honor. I think the situation today at common law is what it was.
Stephen G. Breyer: You can't disagree with my question. [Laughter]
Andrew J. Pincus: But--
Stephen G. Breyer: I would like an answer to my question.
Andrew J. Pincus: --The answer is several-fold. The Court has given absolute immunity to witnesses in Briscoe. The policy reason -- the principal reason was the common law rule. The policy reasons that the Court gave were: A, we don't want to deter people from coming forward; and, B, the testimony will be put through the adversary process and it's public, and those are protections against false testimony. In the -- in the grand jury situation those protections are not present, neither transparency nor an adversary process. And what the court said in Malley about people coming forward I think applies in the grand jury context as well for complaining witnesses. The Court in Malley said we want people who are setting the prosecution in motion, the special category of complaining witnesses, we want them to think twice. That's not a bad thing when they are the motivating force behind the prosecution.
John G. Roberts, Jr.: Well, I thought the whole point of the grand jury was to protect citizens from unwarranted prosecutions. The grand jury initiates the prosecution. So why do we look back beyond that? That's where the prosecution is initiating. You are not subject to prosecution until the grand jury returns the indictment. So why do we talk about complaining witnesses initiating the prosecution?
Andrew J. Pincus: I -- I think -- well, we talk about them, I think, because of the reality that there are cases and the common law recognized that there were cases where the reason the prosecution got rolling was because either a private person or a government person was the person who was pushing it along.
John G. Roberts, Jr.: Well, somebody's is not--
Andrew J. Pincus: It's true that the grand jury -- I'm sorry.
John G. Roberts, Jr.: --No, go ahead.
Andrew J. Pincus: --the grand jury's decision is a step in the chain, but the Court has not said that, for example, the judge's decision in Kalina and Malley to issue the warrant broke the causal link between the false testimony in the affidavits in those case. Even though the judge was making an independent decision, the Court recognized, as the common law recognized, that there could be a causal chain back to the false testimony which essentially tainted the decisionmaker, the judge's decision, just as it taints the grand jury's decision. And in fact, what lower courts have said is that it is only when there is an allegation of false testimony or other impropriety in the grand jury that looking back is possible, but of course that's the very situation in this case.
Ruth Bader Ginsburg: The question is where do you locate the grand jury? We have on the one side you recited Malley. That was an arrest warrant, testimony in support of an arrest warrant. Then we have the trial, where everybody gets absolute immunity. And the grand jury is in between those two. So why should we bracket it with the arrest warrant rather than with the trial? The arrest warrant is certainly pre-prosecution.
Andrew J. Pincus: Well, the first reason, Your And Honor, is because that's what the common law did. what the Court -- the Court's inquiry here is to look at the common law and decide what Congress when it enacted the statute in 1871 confronted. And when Congress enacted the statute in 1871, there were -- the rule was that complaining witnesses who testified before grand jury -- that grand jury testimony of people who were complaining witnesses was not immunized as a basis for malicious prosecution liability. What the Respondent is seeking here is to say: My grand jury testimony is immunized as a basis of section 1983 liability, but at common law that simply wasn't the rule.
Samuel A. Alito, Jr.: --At common law did any grand jury witnesses have absolute immunity from a claim for malicious prosecution?
Andrew J. Pincus: Well, common law -- at common law -- at common law it wasn't a question of immunity. There was no defamation liability for any witness.
Samuel A. Alito, Jr.: Well, could--
Andrew J. Pincus: The only liability was for malicious prosecution.
Samuel A. Alito, Jr.: --And could there be malicious prosecution liability for a witness before a grand jury who was not a "complaining witness".
Andrew J. Pincus: No, and that's the source of the distinction that the Court drew in Malley and Kalina.
Samuel A. Alito, Jr.: So you are not really asking us to adopt the common law rule, are you? You are asking for a variation of the common law rule that is limited to complaining witnesses. Or are you going further. Are you saying that no witness before a grand jury should have absolute immunity from a so-called 1983 malicious prosecution claim?
Andrew J. Pincus: No, Your Honor, we're not. We are asking for exactly the rule that was at common law. What the Court has said in Kalina and Malley is -- the rule that the Court adopted there was based on precisely the same distinction that we rely on here.
Samuel A. Alito, Jr.: So if I understand your answer, that you're not -- that this whole business about complaining witness is irrelevant. Any -- no witness before a grand jury gets absolute immunity.
Andrew J. Pincus: No, Your Honor, it's complaining witnesses. The distinction that the common law drew -- all witnesses were immune from defamation. Only -- the only people who could be subject to liability based on their testimony were people who qualified as complaining witnesses. That is why the court in Malley and Kalina drew the line it did. It said, these people, you were acting as a complaining witness. The function you are performing by submitting this affidavit is being a complaining witness. At common law, that function -- true, it wasn't technically immune, but it was subject to liability. Liability could be premised on those statements.
Samuel A. Alito, Jr.: A complaining witness could -- who would satisfy the elements of the malicious prosecution tort could be liable?
Andrew J. Pincus: Yes.
Samuel A. Alito, Jr.: All right. That's a little different, isn't it?
Andrew J. Pincus: Well, what the Court has said, it said in Malley and Kalina, and what we're relying on here, is that those -- those people also -- Congress would have recognized in 1871 that there could be liability for people who fell into this category -- and so--
Antonin Scalia: Well, you're saying that the only people who would be subject to suit for the malicious prosecution tort were complaining witnesses?
Andrew J. Pincus: --Yes.
Sonia Sotomayor: Mr. Pincus, you in answer to one of Justice Kagan's questions, you noted that you really can't find a case where a court relied exclusively on the grand jury testimony. In most of the cases that I've reviewed, there's a discussion that both non-grand jury and grand jury testimony was being relied upon; is that accurate?
Andrew J. Pincus: I think that's right, Your Honor. It's awfully hard to tell, but I wouldn't want to represent there's one.
Sonia Sotomayor: Could you tell me what -- the United States as amica is supporting a vacatur and remand on the ground that there might be adequate independent evidence from the grand jury testimony in this case to sustain a cause of action. Do you agree with their recommendation? And if you don't agree, assume that we were to adopt the United States' position. What would be the independent evidence that you have that would support a malicious prosecution claim?
Andrew J. Pincus: Well, there -- there is independent evidence in this case, Your Honor of -- before the Respondent testified before the grand jury there were -- there are allegations that he conspired with the district attorney and others to fabricate the -- the evidence that he gave. And that obviously--
Sonia Sotomayor: Now, the court below took that into account and said: You are only relying on the grand jury testimony to prove the conspiracy and that's not enough.
Andrew J. Pincus: --Well, Your Honor, I think that what the Eleventh Circuit said was because this was all directed to the grand jury testimony, we're not going to separate, uphold -- hold that there could be liability based on that alone. I think that's wrong for two reasons. First of all, our principal submission, of course, is there can be liability premised on the grand jury testimony and that there is no basis in the common law for a different rule. And our second position would be, even if you, the Court, thought that grand jury testimony for some reason was off limits but became permissible as a basis for finding liability if there were other evidence, then that's true in this case as well. I want to return to Justice Breyer's question for 1 minute, because there was the third policy reason that I wanted to provide, which is, as we explain in our brief, in the States many prosecutors can proceed by information or indictment, and that we think it would be a peculiar situation if liability could be premised when a proceeding is initiated by information, which Malley and Kalina make clear, but that if the proceeding is by grand jury it would be wholly off limits. That doesn't make much sense and it is totally inconsistent with the common law rule. I would like to reserve the balance of my time.
John G. Roberts, Jr.: Thank you, counsel. Mr. Jones.
John C. Jones: Mr. Chief Justice and may it please the Court: The way the Respondent sees it is the extension of Briscoe into the absolute immunity for all witnesses in the grand jury with no distinction with respect to whether they are the complaining witness or otherwise. As this Court has said in Briscoe, that you look at the purpose of protecting the witnesses, both at the grand jury proceeding and at trial, and you want to preserve every man's evidence and you want to keep the court from harassing--
Antonin Scalia: You would acknowledge that if someone instigates the grand jury proceeding but does not testify, that person could be sued if indeed the instigation was malicious?
John C. Jones: --If it's outside of the grand jury -- and I go for the but-for test like the--
Antonin Scalia: No, no, no, just answer my question. I've given you a hypothetical. He -- no doubt he instigated the grand jury proceeding. He -- he got the U.S. attorney to bring the proceeding. But he didn't testify. Could that person be sued?
John C. Jones: --Yes, that person could be sued under the but-for standard.
Antonin Scalia: So all he has to do to get himself off the hook is, after instigating it, he should testify, right? His testimony bathes him clean, is that it?
John C. Jones: No, that isn't. Because--
Antonin Scalia: So all you are arguing, then, is that there has to be some evidence other than the mere testimony; is that your point?
John C. Jones: --That is my point.
Antonin Scalia: Okay.
John C. Jones: That there has to be some evidence other than the mere testimony. And if there is evidence other than the mere testimony, indeed you can go forward with a 1983 claim.
Ruth Bader Ginsburg: Then you agree with the position that the United States took, which is you can -- if there was evidence outside of the grand jury proceeding that this person was the instigator, that that could be the basis for a malicious prosecution 1983 claim? I thought the United States' position was: We're not going to use the testimony before the grand jury, but if this person did things outside the grand jury to instigate the prosecution that -- that could--
John C. Jones: The way I understand the Solicitor General's position was that if the only way that you could prove the allegation was to use the grand jury testimony, then indeed you could not bring a suit under 1983. But I think as Justice Scalia's question was proffered is that it was an independent act that in and of itself created a constitutional violation, independent and actually caused the prosecution. Then indeed--
Elena Kagan: But, Mr. Jones, do you--
Anthony M. Kennedy: Well, do you agree that we should vacate and remand according to the suggestion of the Solicitor General?
John C. Jones: --No, Your Honor.
Anthony M. Kennedy: And why is that?
John C. Jones: Well--
Anthony M. Kennedy: Is it just because of your view of the evidence, that there is no evidence to justify the remand?
John C. Jones: --Well, that's certainly one of the issues. But nothing like this -- what the Solicitor General is recommending, none of those issues were raised below, none of those issues were raised in the Court of Appeals in the Eleventh Circuit, and--
Anthony M. Kennedy: Are you saying that this was waived is just not in the case? Because usually if the issue wasn't discussed that's the reason we remand.
John C. Jones: --That's correct, it was waived and it's -- and it's not before the Court and that's not why cert was granted.
Antonin Scalia: I don't understand how it was waived. I don't understand that. How was it waived?
John C. Jones: It was never presented by any side at any -- to any place in the court below.
Anthony M. Kennedy: Well, but if -- if there is -- if there is a theory of liability and we find that there is -- that that theory is baseless, we don't generally dismiss the complaint if there are other allegations in the complaint that could support liability on another theory.
John C. Jones: Well, certainly, I mean, this case has to be -- it's going back to the district court anyway, as Your Honor is well aware. And perhaps it can be raised again at that time with an amendment. But at the present time it's not in the case.
Elena Kagan: --So, Mr. Jones, could I understand your responses to these questions, because you said to Justice Scalia the fact that there's been testimony at the grand jury does not, if you will, immunize the person from suit based on other acts. Can you go further? In a suit based on other acts, could the grand jury testimony come in as evidence?
John C. Jones: If you look at common law, that's exactly what happened. At common law, and as Justice Scalia mentioned in his concurrence in Kalina, what you had is two separate acts when you had a malicious prosecution at common law. The first act was actually complaining and making a complaint to, to get a warrant, in other words swearing at that point in time. But there again, the person that complained actually didn't have to be a witness. But when he was a witness or when he or she became a witness at court, that testimony could then be used to show malice for the prosecution or for actually bringing the case.
Elena Kagan: So all you are saying is that there is absolute immunity for a suit based exclusively on grand jury testimony, and if the suit is based on something else the grand jury testimony can come in.
John C. Jones: That is correct, if indeed it's an independent cause of action outside of the court, yes.
Sonia Sotomayor: I don't know what an independent cause of action could be, because it is the grand jury proceeding that initiates the action. So, why would the common law permit it unless it recognized that a complaining witness has to do something to get the grand jury up and running, and go in and testify to something false to be liable for malicious prosecution. But the point I'm making is, I don't see how your position differs from the government's at all, and I'm not sure what -- how you could have independent guilt proven that requires anything more than proof, than the proof they proffered below, which was that this police officer issued subpoenas and took other steps to start the grand jury's process. And then you use their testimony at the grand jury to figure out whether it was fault or not.
John C. Jones: First of all, to respond, one, our position with respect to the Solicitor General on that issue, I don't see it as any different. What I was suggesting, what I understood Justice Scalia to say, is when you have something independent that forms a cause of action, for example, if you take and plant evidence in of a crime, for example cocaine or something of that nature, that is a separate and distinct cause of action and that would cause -- that action by an investigator might very well cause the prosecution or the district attorney to act when indeed you would have -- they would find something--
Stephen G. Breyer: Is it different from -- I mean, I find the Solicitor General -- it's my fault, I'm sure -- I don't understand the position they're taking. I mean, I think in every case there is some evidence about what goes on outside the courtroom or the grand jury room, and then there is some evidence about what went on inside. And I don't know when you're supposed to introduce what. So I'm guessing that, whatever the rule is about when you can use what parts of what, that if you win the rule about when you should use or when you still can use the testimony that's given in the grand jury room is the same as the rule that says when you can use the testimony of a witness at trial. See, I would have thought that immunity means you can't use that testimony, but I'm told I'm wrong about that. You sometimes can use it. So then I don't know when you can use it and when you can't. Maybe you know. You've studied this case. I admit I haven't studied it as thoroughly as I hope you have.
John C. Jones: --I hope I have as well. At least as I understand with respect to -- first of all, if you look at Briscoe, everything that's in Briscoe, as you know, is absolutely immune from civil damage litigation.
Stephen G. Breyer: When you say absolutely immune, I'm thinking of a typical case as follows: Smith says to his friend: I hate that rat Jones. I am going to go and lie and say he stole my horse. Next step, he goes to the grand jury or someone and says: Jones stole my horse. Third step, he's in the grand jury room saying: Jones stole my horse. Fourth, he's at trial, okay? So what comes in and what doesn't? And can you bring a case in the first place? I'm at sea. Whatever you can help me with, I'd be happy.
John C. Jones: First of all -- and it might be a difficult time. But the -- when you have a grand jury, you have something different from just bringing a cause of action. What you have in a grand jury is you have evidence presented to the prosecutor, typically a district attorney, and then the district attorney makes an independent evaluation as to what to bring to the grand jury and who to indict or whether to indict anybody whatsoever. That testimony in that grand jury -- if you bring a cause of action, for example if a cause of action is brought for malicious prosecution, which they're trying to do here, what this Court has said in the Van Dekamp case is that the only time that you can use that testimony is if there is something else outside of the grand jury--
Stephen G. Breyer: But there's always something else. He didn't think of this thing for the first time in the grand jury room. The defendant thought of this thing outside the grand jury room before he even got to the grand jury, and he probably told somebody about it, or he could have, or at least there's the evidence that he walked to the grand jury room, okay? So there is always something outside the grand jury.
John C. Jones: --Sure, but the case law says that if the prosecutor would not have taken the case, or would not have done the case but for the conduct for the individual, then indeed you cannot bring the cause of action.
Samuel A. Alito, Jr.: I have the same -- I have the same concern as Justice Breyer. Let me try to ask the question in a different way. Can you give me an example of a case in which someone would qualify as a complaining witness under Mr. Pincus's definition and yet would not have done something outside of the grand jury that would be sufficient to make out a claim of malicious prosecution? If that situation doesn't exist, then I don't see any difference between your position and Mr. Pincus's position.
John C. Jones: It does exist, because typically when you have an investigation in any type of district attorney's office, what you have is investigators going out and investigating a case, bringing the material to the district attorney, then the district attorney looks at the material, and then the district attorney is the one that makes an independent decision.
Ruth Bader Ginsburg: --Well, let's go back one stage. Let's go back to an arrest warrant. The witness -- and the affidavit in support of the warrant is filled with lies. The affidavit is presented to a judge, and I would think that's better than a prosecutor. And yet there is no absolute immunity for someone who lies in order to get a warrant, even though the judge makes the judgment whether the warrant should issue.
John C. Jones: The distinction in Malley is -- is this: First of all, the -- in Malley and when you go apply for a warrant, the -- at that point in time the investigator is, he is determining -- he or she is determining the time, place, and manner in which to go to the judge and also possibly he can, he or she can select the judge that the person wants to go for. And then what has happened is that person who presents that evidence is presenting the evidence that he or she has gathered and is going to present it in a light most favorable to the investigation. That person won't necessarily present the bad part. They might present just only the, exclusively the good part. And also, that person isn't under the subpoena power.
Ruth Bader Ginsburg: Suppose -- suppose we had, instead of a grand jury proceeding and an indictment, an accusation to begin the prosecution and a supporting affidavit in connection with the accusation. Would there be -- would there be absolute immunity then for the affidavit that supports the accusation which will begin the prosecution?
John C. Jones: If I understand your question, and I'm not sure I heard it exactly, are you saying if there's an affidavit that went before the grand jury?
Ruth Bader Ginsburg: No. We take the grand jury out of it. We are going to begin the case, the prosecution, by an information. Or I think the Georgia law refers to something called an accusation. If -- if we are not before a grand jury, and the prosecution is instituted by an information, and there is an affidavit supporting that information, is there absolute immunity for the false affidavit in support of the information?
John C. Jones: Once again, that's a scenario essentially in Malley and Kalina, where you had those individuals coming before. They were not subpoenaed. Those individuals -- whether it's affidavit or testimony, I think either one is testimony.
Ruth Bader Ginsburg: But you -- you cited a provision of the Georgia Code that seems to equate what's called an accusation with an indictment. It's on the bottom of page 22: "All legal proceedings by which a person's liability for a crime is determined, commencing with the return of the indictment or the filing of the accusation. " So if the Georgia Code equates those two, the return of the indictment or the filing of the accusation, why shouldn't the immunity rule be the same for the two? And you told me that Malley would cover the filing of the accusation. So why shouldn't it be the same for the return of the indictment?
John C. Jones: And -- and I'm not positive I understand the question, but as I understand it what you have in a Malley situation is again you have somebody that is merely coming before the judge in the hope of getting a warrant to issue. That person doesn't -- isn't under the constraint of a prosecutor, an independent prosecutor in the meantime -- actually, the person asking the questions, asking -- and actually subpoenaing a witness, like a grand jury. That person is actually -- and what the Court has said is potentially wasting judicial resources by bringing a not-so-good case, just like in Malley, to the court. And so to protect the court and to protect the judicial process, the Court has said that person only has qualified immunity so as to make him think and make the process think before it happens, before they go to the judge. But in the grand jury scenario you have an independent individual, in this case the prosecutor, receiving the evidence and the prosecutor deciding what cases to bring.
Sonia Sotomayor: So explain to me again -- over here, Mr. Jones. Explain to me again why the act of sitting down with the prosecutor in his office and telling him a falsehood that leads the prosecutor to convene the grand jury and call you as a witness, why that act of meeting with the prosecutor and stating the false statement is not actionable independently? Or is it your position that that would be?
John C. Jones: It is the position that it can be, and -- and I hate to say -- equivocate there. But I will state this: if indeed that district attorney or the prosecutor in a case would not have proceeded but for that testimony or that statements before him, in other words, he would not have done anything there, like, as I stated earlier, like the planting of the cocaine or the finding of the cocaine--
Sonia Sotomayor: No, no, no, no. He sat down, told the prosecutor exactly what he was later going to say in the grand jury. I rarely called a witness to a grand jury when I was a prosecutor who I hadn't spoken to before. Occasionally I had to because of circumstances, but the vast majority you sit down and talk to and find out what their story is. Identical story before and after during the grand jury. Is the story before an independent act sufficient to bring a malicious prosecution claim?
John C. Jones: --Under that scenario, no. Because the only way that that act can be proven, the only way that the malicious prosecution claim can be proven, would be to get the grand jury testimony before -- to actually utilize that grand jury testimony, and that testimony is absolutely protected under Briscoe.
Antonin Scalia: I don't understand.
Sonia Sotomayor: You have a time sheet that shows that the prosecutor met with--
Antonin Scalia: Yes.
Sonia Sotomayor: --the investigator?
John C. Jones: I'm sorry?
Sonia Sotomayor: You have a time sheet. You mean, you need a witness to say they met together? You need someone to say that they talked before the grand jury? Assuming you have that much evidence, you think that's enough?
John C. Jones: I mean, do you need a witness to come and testify as to whether they had a communication?
Sonia Sotomayor: Yes, exactly. Is that what you are requiring?
John C. Jones: It -- it would appear that that would certainly be an element that you would have to establish. Now, whether you would need a witness or you can get one of those two to testify is another issue.
Ruth Bader Ginsburg: Do you regard the grand jury as a judicial proceeding?
John C. Jones: Yes, I do. And this Court has so stated, not only in -- well, the Court has stated first of all in Burns v. Reed; it talks about how you have prosecutorial immunity. And in Malley, it also states it's the first stage of a criminal proceeding.
Ruth Bader Ginsburg: But there's no judge. And it seems to me odd to say -- there is no presiding judge, there is no cross-examination. And the indictment has the same function as an information. So why should it rank as a judicial proceeding?
John C. Jones: Well, it has many more of the trappings of a trial than, say, coming before a judge like in the Malley scenario. First of all, you're subject to compulsory process. The person is placed under oath. The person may indeed not even want to come and testify. I think that was earlier mentioned by Justice Scalia. The person might not even want to be there, and yet he's subpoenaed and he's forced to be there. The -- also in that situation, the district attorney, he or she, is the one that's controlling the evidence, the one who's controlling what is before the court, and that person is also determining which person is going to be indicted and the evidence to be presented. So the distinction between the two is as I see it significant. And one, the grand jury is much more akin to a judicial proceeding and a trial than the scenario you have in Malley.
Stephen G. Breyer: Is the prosecutor immune -- I know the prosecutor is not immune or the complaining witness is not when they get an arrest warrant. Is the prosecutor immune when he is taking the step of getting an information or indictment?
John C. Jones: Yes.
Stephen G. Breyer: He is immune?
John C. Jones: Yes.
Stephen G. Breyer: All right. So this is equivalent to doing that. That's a prosecutorial function. The prosecution would be immune.
John C. Jones: That is correct.
Stephen G. Breyer: Of course, this isn't a prosecutor; this is a subordinate. The person here is the defend--
John C. Jones: No, the person here is the investigator who is employed by the prosecutor. And I think, as Justice Ginsburg pointed out, the prosecutor himself in this situation directed the investigator to appear before the grand jury, and directed him as to what to testify to at the grand jury. So as Your Honor pointed out, the -- who is absolutely immune, in the grand jury setting the prosecutor is immune, the grand jurors are immune. In trial, the prosecutor is also immune, any of the witnesses testifying is immune. It makes logical sense that anybody that comes before the grand jury is likewise immune.
Stephen G. Breyer: --Is there any subordinate government official involved when a prosecutor gets an information, files an information or -- the way you get somebody indicted is you have an indictment, which is the grand jury, I guess.
John C. Jones: Right.
Stephen G. Breyer: Or an information.
John C. Jones: Right.
Stephen G. Breyer: All right. When you get the information, is it just somebody from the district attorney's office or the prosecutor's office, or is there somebody else there? Is there a policeman there that gives any--
John C. Jones: There can be.
Stephen G. Breyer: --There can be, okay. If there is, has he ever been held immune or not? The prosecutor is immune. Now he's there with an assistant, the policeman to back him up. Is there any law on that, whether the policeman is immune?
John C. Jones: Just if he's asking for an arrest warrant; is that what--
Stephen G. Breyer: No, he's not immune. We know he's not that. It's just he files the information.
John C. Jones: --He files the information and it's not in a grand jury setting.
Stephen G. Breyer: No.
John C. Jones: Then indeed, I would suggest it's very similar to the Malley scenario, where he would have qualified immunity.
Ruth Bader Ginsburg: And that would go for the prosecutor, too, right?
John C. Jones: No.
Ruth Bader Ginsburg: For the information? If you -- if you granted it was Malley, the -- the prosecutor who lies to the magistrate is not going to have absolute immunity, as the arrest warrant states. Is the prosecutor absolutely immune for making out an information that is packed with lies?
John C. Jones: Yes. Because that is -- that is what this Court has decided is intimately associated with the judicial phase of the criminal process. And any of the conduct that is intimately associated under Imbler, under Kalina, under various things, Burns v. Reed are intimately -- anything that is intimately associated is absolutely immune.
Ruth Bader Ginsburg: Why isn't an arrest warrant intimately associated?
John C. Jones: Well, an arrest warrant in the -- like in the Kalina and Malley situation, you didn't have a prosecutor going before them. That was an independent action by an investigator who went before a judge to seek a warrant and present any evidence that that person had.
Samuel A. Alito, Jr.: Paragraph 29 of the complaint alleges Mr. Paulk and Mr. Hodges, acting under color of law, in retaliation and wrongfully influenced and instigated the prosecutorial decision to bring charges against Mr. Rehberg. Why isn't that sufficient to support a claim of so-called malicious prosecution without regard to the evidentiary -- or without regard to the grand jury testimony?
John C. Jones: Because -- just because they allegedly conspired together to do this doesn't mean the act was completed until after, in this case, Mr. Hodges and it was actually Kelly Burke, actually performed what they did. Now -- and it -- and if the prosecutor knows about it at that point, and they allegedly conspire, now who is taking the act? It really is not any more Mr. Paulk; it is the district attorney who is acting at that point, and it is the district attorney that is now proceeding in the grand jury. And as -- as I pointed out earlier, if anything, that's intimately associated with the judicial phase, and he's absolutely immune for his conduct. But even, just because the district attorney knows about it and so does the investigator know about it, it is the conduct and the independent act now of the prosecutor to get the indictment.
Elena Kagan: Mr. Jones, I feel as though now we are just arguing about facts. It seems to me that you have accepted a good deal of Mr. Pincus's case. You've said that you can bring an action against somebody based on acts outside of court, that the grand jury testimony can come in as evidence in that action, and all you're saying is that there's -- there's no way to bring this action in this case because your client didn't in fact do anything.
John C. Jones: No. And perhaps that's not my position. First of all, I'm not saying that they're -- what I'm saying with respect to bringing a malicious prosecution claim is that, I think Justice Scalia asked me if there is a completely independent act, but if -- in the scenario that you paint, just the fact that they've talked outside the grand jury, that does not authorize an independent cause of action for a malicious prosecution claim. What you have to have is an independent act, just like what you had at common law where you had two distinct acts: one, where you actually filed the complaint; now you become the complainant or as the common law said you became the complaining witness even if you didn't have to be a witness. But then if you were a witness, indeed, that testimony that you gave in the -- in the grand jury or in the trial could be used as to -- to prove your malicious intent in bringing the charge initially. And that -- that doesn't equate to what we have here in this -- in this scenario. What we have here is there may have been a discussion outside of the court or outside of the grand jury, but that discussion now ended and now you have an independent act by the prosecutor to bring the cause of action. So it's a completely distinct, as I see it, completely distinct scenarios. If there are no further questions, thank you very much.
John G. Roberts, Jr.: Thank you, counsel. Mr. Pincus, you have 4 minutes.
Andrew J. Pincus: Thank you, Mr. Chief Justice. A couple of points. First of all, the -- the question about whether there -- it's an appropriate rule that a finding of complaining witness can be based on evidence outside of the grand jury, but it can't be based on grand jury testimony, that certainly wasn't the common law rule. And I note Justice Sotomayor asked whether there were any common law cases that relied solely on grand jury testimony. And although the cases are hard to parse, I would point the Court to the Anderson and the Moulton cases that we cite on page 3 of our reply brief. In those cases, in the Anderson case the Court is talking about the charge to the jury, and what it says the evidence was is the fact that the defendant was listed as the complainant on the indictment and that he testified before the grand jury. And then in the Moulton case the allegations of the complaint are set forth in the reporting of the case, and the only allegations are -- relate to the testimony before the grand jury. So I think it's very hard to find any basis in the common law which as the Court said -- has said is the controlling principle here for ruling the grand jury testimony either entirely out of bounds as a basis for liability, or for saying it's only in bounds if there is some other extrinsic evidence. There is just no support for that in the common law, and I think it doesn't really make sense -- if this case had proceeded by information, and Mr. Paulk's grand jury testimony had simply been placed in an affidavit and submitted in order to obtain the arrest warrant, Malley and Kalina would control and it would be clear that there would be liability--
Elena Kagan: Suppose this a jurisdiction that didn't have grand juries, but returned felony indictments by means of the preliminary hearing, would a witness at a preliminary hearing have absolute immunity? There is a judge presiding there.
Andrew J. Pincus: --A -- a complaining witness, I don't think -- if that is the proceeding that sets the prospect, determines whether or not there is going to be a prosecution, I think an ordinary witness would be absolutely immune but a complaining witness would not be.
Stephen G. Breyer: Are there States that have that? or are there any other jurisdictions where they don't give immunity to grand jury testimony for complaining witnesses or others?
Andrew J. Pincus: Yes, there are. There are, there are both at the common law and today, Your Honor; there are--
Stephen G. Breyer: Today are there a lot?
Andrew J. Pincus: --There are -- I don't know the number.
Stephen G. Breyer: I mean, is there any way to find out what's happened? Have they been -- have the grand juries been undermined? Have they not been undermined? I mean, what has actually happened in those cases?
Andrew J. Pincus: Well--
Stephen G. Breyer: Can you give me an example of one or two States that allow these actions?
Andrew J. Pincus: --Well, I can -- I can't give you an example of States. I can give you the example of seven circuits that -- that have adopted the rule that we contend for. But I don't think--
Stephen G. Breyer: For how long have they had that?
Andrew J. Pincus: --Excuse me?
Stephen G. Breyer: For how long?
Andrew J. Pincus: For -- some of them since Malley, certainly since Kalina, about 10 years.
Stephen G. Breyer: And -- and have there been many such grand jury acts?
Andrew J. Pincus: There have been cases. No one has said the grand jury process has been upset. Courts have -- have looked into whether or not there was a complaining witness. Some courts say in order to get grand jury testimony you have to -- you have to meet some kind of a threshold. Often these cases are proven up by deposing the defendant and asking him what he testified about before the grand jury without intruding on the grand jury at all. But I think those seven circuits, there has been no indication of some kind of disruption of the process.
Samuel A. Alito, Jr.: Are those -- are those cases involving grand jury proceedings like the one here which does look somewhat like the complaint situation? Or are they more traditional grand jury settings?
Andrew J. Pincus: I don't -- I don't want to -- I don't know, Your Honor. We'd be happy to file something further, if the Court like.
Elena Kagan: To me, Mr. Pincus, the oddest thing about your case is the notion of being able to sue the investigator when you can't sue the prosecutor for whom he works. So that even if there is -- are some set of people that you -- that you could sue for actions in the grand jury context, the notion that you can sue an employee of a prosecutor when you can't sue the prosecutor seems an odd rule.
Andrew J. Pincus: Well, Your Honor, I think the question here would be effectual one, as you pointed out. Is Mr. Paulk the person who set this in motion? If the testimony is -- may I finish? If the testimony is that Mr. Paulk was just told what to do by the prosecutor and didn't have any additional anything, then perhaps he won't be found liable anyway.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.