106 Colum. L. Rev. 643 (2006)
From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions

handle is hein.journals/clr106 and id is 689 raw text is: NOTES
Jacob Paul Goldstein
Long after the Supreme Court addressed the issue in Albright v. Oli-
ver, circuit courts remain divided over the availability of § 1983 relief for
malicious prosecutions commenced by state officials. Faced with a constitu-
tional tort claim of malicious prosecution, some circuits focus their analysis
on the tort law aspects, while others emphasize the constitutional require-
ments. This Note argues that the elements of a common law malicious prose-
cution claim constitute in themselves a violation of the Fourth Amendment.
Moreover, this Note points out that courts already recognize such official
misconduct as a Fourth Amendment violation when the relief asked for is the
suppression of evidence. Section 1983 liability is simply the tort remedy
equivalent of the exclusionary rule remedy afforded by the Franks v. Dela-
ware line of cases. This Note responds to constitutional and tort law criti-
cisms of the proposed Fourth Amendment remedy and concludes that § 1983
relief is appropriate in this context.
In 1940, then-Attorney General RobertJackson described the most
dangerous power of the prosecutor as the power to
pick people that he thinks he should get, rather than pick cases
that need to be prosecuted.... [I]t is a question of picking the
man and then searching the law books, or putting investigators
to work, to pin some offense on him.... [I]t is here that law
enforcement becomes personal, and the real crime becomes
that of being unpopular with the predominant or governing
group, being attached to the wrong political views, or being per-
sonally obnoxious to or in the way of the prosecutor himself.'
Criminal prosecutions are afforded enormous freedom from oversight
and review.2
1. Robert H. Jackson, U.S. Att'y Gen., The Federal Prosecutor, Address at the Second
Annual Conference of United States Attorneys (Apr. 1, 1940), in 24 J. Am. Judicature Soc'y
18, 19 (1940); see also Morrison v. Olson, 487 U.S. 654, 727-29 (1988) (Scalia, J.,
dissenting) (quoting Jackson's speech to illustrate the vast power and the immense
discretion that are placed in the hands of a prosecutor).
2. See, e.g., Morrison, 487 U.S. at 728 (Scalia, J., dissenting) ([T]he primary check
against prosecutorial abuse is a political one.); United States v. Batchelder, 442 U.S. 114,
123-26 (1979) (holding that prosecutorial discretion includes power to decide which of
two statutory prohibitions of same conduct, but with different sentencing consequences,
shall be charged); see also David Margolick, Law Professor to Administer Courts in State,

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