Prosecutorial misconduct
A prosecutor who hid evidence or used false testimony at your trial usually cannot be sued for damages. The Supreme Court gave prosecutors absolute immunity for their work as advocates in 1976 and has not taken it back. But the immunity follows the function, not the job title. A prosecutor acting as an investigator has only qualified immunity, the police who withheld the evidence have no prosecutorial immunity at all, and in New York the City can be liable for a District Attorney's office policies.
Sometimes this is a claim, and the first job is to be honest about when it is not. If the misconduct happened in the prosecutor's role as the government's lawyer, in deciding to charge, presenting the case, or arguing to the jury, the prosecutor is absolutely immune from a damages suit under Section 1983. That is true even when the conduct was deliberate.
The claim exists at the edges of that immunity and around it. Prosecutors who act as investigators lose it. Police officers never had it. And the office's own policies can make the municipality liable. Most civil cases that follow a prosecution built on misconduct are brought against those defendants.
How it happens
- Favorable evidence is not turned over. A witness statement pointing to someone else, a failed identification, or a lab result stays in the file and never reaches the defense.
- The deal with the witness is hidden. A cooperating witness has been promised leniency or paid. The jury is told there was no promise.
- False testimony goes uncorrected. A witness says something on the stand that the prosecutor knows is untrue, and the prosecutor lets it stand or repeats it in summation.
- The prosecutor joins the investigation. Before anyone is arrested, a prosecutor sits in on interrogations, shapes a witness's account, or helps obtain an opinion to fit a theory.
- The summation goes outside the evidence. The closing argument tells the jury facts that were never proved or vouches personally for a witness.
- The office has no system. Nothing in the office tracks what police hold or what witnesses were promised, so nondisclosure repeats from case to case and no one is disciplined for it.
The claim
The constitutional right is due process. Suppressing material evidence favorable to the accused violates due process regardless of the good or bad faith of the prosecution (Brady v. Maryland, 373 U.S. 83 (1963)). The vehicle for damages is 42 U.S.C. § 1983. The question in every case is which defendant the claim can actually reach.
The prosecutor as investigator
Under Buckley v. Fitzsimmons, 509 U.S. 259 (1993), a prosecutor has only qualified immunity for investigative acts, such as fabricating evidence before there is probable cause, and for statements to the press. A claim against a prosecutor therefore depends on showing that the conduct took place in the investigation, not in the advocacy.
The police
Officers who fabricate evidence, or who keep favorable evidence from the prosecutor, are not advocates and have no prosecutorial immunity. The Second Circuit recognizes a right not to be deprived of liberty on the basis of evidence fabricated by an officer acting in an investigative capacity (Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000)), and a fair-trial claim for fabricated evidence lies even where probable cause existed (Garnett v. Undercover Officer C0039, 838 F.3d 265 (2d Cir. 2016)). See fabricated evidence and malicious prosecution.
The municipality
In New York, the Second Circuit has held that the City can be liable under Monell for a District Attorney's office policies on Brady disclosure and summation misconduct (Bellamy v. City of New York, 914 F.3d 727 (2d Cir. 2019)). The claim against a municipality requires that its own policy or custom caused the violation (Monell v. Dep't of Social Servs., 436 U.S. 658 (1978)). See municipal liability.
The state compensation statutes
Separately from any lawsuit against an official, a person who was wrongly convicted and imprisoned may have a statutory claim against the state that does not require proving anyone's misconduct. New York's is Court of Claims Act § 8-b. The wrongful conviction page goes through the statutes in each state.
Discipline is a different track
The New York Commission on Prosecutorial Conduct operates under Judiciary Law article 15-A. It has 11 members, accepts complaints online, and issued its 2026 annual report on February 27, 2026. It is a disciplinary body, not a court. It does not award damages.
What they will argue
Absolute immunity
Imbler v. Pachtman, 424 U.S. 409 (1976), gives prosecutors absolute immunity for advocacy functions, and the Court applied it there to the knowing use of false testimony and the suppression of evidence. Van de Kamp v. Goldstein, 555 U.S. 335 (2009), extended it to supervisors' failures in training, supervision and information systems where those failures are tied to the conduct of a trial. Every defendant prosecutor will argue that what he or she did was advocacy. The answer, if there is one, is the timeline: what was done before probable cause existed, and by whom.
Heck
A damages claim that would imply the invalidity of a conviction is barred unless the conviction was reversed, expunged, invalidated or called into question by habeas (Heck v. Humphrey, 512 U.S. 477 (1994)). A Brady claim implies exactly that. The criminal case must be undone first.
Qualified immunity for the investigators
Police officers, and prosecutors sued for investigative acts, will argue that no clearly established law put them on notice (Harlow v. Fitzgerald, 457 U.S. 800 (1982)).
One case is not a policy
Against the municipality, the defense is that a single violation cannot ordinarily support failure-to-train liability, and that a pattern of similar constitutional violations by untrained employees is ordinarily necessary (Connick v. Thompson, 563 U.S. 51 (2011)). The claim against the office is built from other people's reversed convictions, court findings of misconduct, and the office's discipline records, or the lack of them.
The State is not a "person"
A State and its agencies are not "persons" under Section 1983, and state officials sued in their official capacity for damages are treated as the State (Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989)). Whether a given prosecutor's office counts as the State or as the county or city for a particular function varies by state and by function. Beyond Bellamy for New York City, that question is not published here, because the rule for each state is not in our verified ledger.
What people have recovered
These are public records of wrongful conviction cases in which withheld evidence or the conduct of the investigation was at issue. Two are settlements paid by cities. One is a jury verdict that is reported to be under appeal.
Jimmy Dennis, Philadelphia
Twenty-five years on death row; exculpatory evidence was withheld. This is a verdict, not a payment. It is reported to be under appeal, and who will pay it has not been confirmed.
Source: Philadelphia Inquirer. A public record of someone else's case, not a result of this firm and not a prediction.
Anthony Wright
Twenty-five years imprisoned before a DNA exoneration; the suit alleged a coerced confession. The City settled with no admission of liability.
Source: City of Philadelphia. A public record of someone else's case, not a result of this firm and not a prediction.
The Central Park Five
Wrongful convictions in a 1989 case, vacated in 2002. The City settled twelve years after that.
Source: Innocence Project. A public record of someone else's case, not a result of this firm and not a prediction.
These are other people's cases, each following many years in prison. What a case is worth depends on the injury, the evidence and the defenses; see what a case is worth. More verified matters are on the public settlements page and the Pennsylvania recovery page.
The clock
A fabricated-evidence claim accrues on favorable termination of the criminal case, not when the fabrication is discovered (McDonough v. Smith, 588 U.S. 109 (2019)), and a malicious prosecution claim requires a prosecution that ended without a conviction (Thompson v. Clark, 596 U.S. 36 (2022)). So the federal periods below generally run from the day the criminal case ended in your favor. State notice rules do not apply to the federal claim (Felder v. Casey, 487 U.S. 131 (1988)). They do apply to the state-law claims.
| State | Federal Section 1983 claim | State-law claim against a public employer | Authority |
|---|---|---|---|
| New York | Three years | Notice of claim within 90 days; suit within one year and 90 days. Court of Claims Act § 8-b claim within two years | Owens v. Okure, 488 U.S. 235 (1989); N.Y. CPLR 214(5); N.Y. Gen. Mun. Law §§ 50-e(1)(a), 50-i(1); N.Y. Court of Claims Act § 8-b |
| New Jersey | Two years, also for the Civil Rights Act claim | Tort Claims Act notice within 90 days; six-month wait; barred after two years. No notice for a Civil Rights Act claim | N.J.S.A. 2A:14-2; 10:6-2; 59:8-8; Owens v. Feigin, 194 N.J. 607 (2008) |
| Florida | Four years | Written claim to the agency within three years; six-month wait; suit within four years | Fla. Stat. §§ 95.11(3), 768.28(6), (14) |
| Pennsylvania | Two years | Written notice to the government unit within six months | 42 Pa.C.S. §§ 5524, 5522(a); Kach v. Hose, 589 F.3d 626 (3d Cir. 2009) |
The New York, New Jersey, Florida and Pennsylvania pages go through each state.
If a charge is still pending, or a retrial is possible, talk to your defense lawyer before you describe the arrest or the case to anyone. The criminal case and civil case page explains why the criminal case comes first.
Wrongful conviction
The federal claims and the state compensation statutes after a conviction is vacated.
Wrongful conviction →Fabricated evidence
The claim against the officers who made the evidence, which prosecutorial immunity does not cover.
Fabricated evidence →Coerced confessions
When the statement that convicted you was produced by the interrogation, not by the facts.
Coerced confessions →Common questions
The prosecutor hid evidence that would have helped me. Can I sue the prosecutor?
For damages, generally no. Under Imbler v. Pachtman a prosecutor has absolute immunity for advocacy functions, and the Court said that covers even the knowing use of false testimony and the suppression of evidence. The claim usually runs instead against the police officers who withheld or fabricated the evidence, and in some cases against the municipality for the policies of the prosecutor's office.
When is a prosecutor not immune?
When the prosecutor was not acting as an advocate. Under Buckley v. Fitzsimmons a prosecutor has only qualified immunity for investigative acts, such as fabricating evidence before there was probable cause to arrest anyone, and for statements to the press. The line is drawn by what the prosecutor was doing, not by the title.
Can I sue while my conviction is still in place?
Not for damages that would imply the conviction is invalid. Heck v. Humphrey bars that claim until the conviction is reversed, expunged, invalidated or called into question by habeas. The first step is the criminal appeal or post-conviction motion. The civil clock for a fabricated-evidence claim starts when the criminal case ends in your favor.
Is there anywhere to complain about a prosecutor in New York?
Yes. The New York Commission on Prosecutorial Conduct operates under Judiciary Law article 15-A, has 11 members and accepts complaints online. It is a disciplinary body. It does not award damages, and a complaint to it does not stop or extend any civil deadline.
Tell us what happened.
One conversation with an attorney, in your language. We tell you which claims the facts support, which deadline runs first for the agency involved, what evidence to preserve this week, and whether a pending criminal case changes the timing. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510If a criminal charge is still open, talk to your defense lawyer before you describe the arrest to anyone, including us. English, Russian and Spanish in-house; an interpreter for any other language. Contingency fee, confirmed in writing before we begin.