The Fourth Amendment requires
that arrest warrants be based “upon probable cause, supported by Oath
or affirmation”-a requirement that may be satisfied by an indictment
returned by a grand jury, but not by the mere filing of criminal charges
in an unsworn information signed by the prosecutor.
Gerstein v. Pugh, 420 U.S. 103, 117, 95 S.Ct. 854, 864-865, 43
L.Ed.2d 54 (1975); see
also
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d
564 (1971).
Accordingly, since most prosecutions in Washington are commenced by
information, Washington law requires, in compliance with the constitutional
command, that an arrest warrant be supported by either an affidavit
“or sworn testimony establishing the grounds for issuing the warrant.”
FN15 The “Certification for
Determination of Probable Cause” executed by petitioner was designed
to satisfy those requirements.
FN15.
Washington Criminal Rule 2.2(a) (1995) provides:
“A warrant of arrest must be supported by an affidavit, ... or sworn
testimony establishing the grounds for issuing the warrant ....
The court must determine there is probable cause ... before issuing
the warrant.”
Although the law required that document
to be sworn or certified under penalty of perjury, neither federal nor
state law made it necessary for the prosecutor to make that certification.
In doing so, petitioner performed an act that any
*130
competent witness might have performed. Even if she may have been following
a practice that was routinely employed by her colleagues and predecessors
in King County, Washington, that practice is surely not prevalent in
other parts of the country and is not even mandated by law in King County.
Neither petitioner nor amici argue that prosecutors routinely
follow the King County practice.FN16
Indeed, tradition, as well as the ethics of our profession, generally
instruct counsel to avoid the risks associated with participating as
both advocate and witness in the same proceeding.
FN17
FN16.
Amicus Curiae United States points out that federal prosecutors
typically do not personally attest to the facts in an affidavit
filed in support of an application for an arrest warrant, but “[i]nstead
a law enforcement agent ordinarily attests to those facts.” Brief
7. Amici Curiae Thirty-Nine Counties of the State of Washington
state that local court rules in only two counties in Washington
require the prosecutor to file an additional document beyond an
information. Brief 2.
FN17.
See, e.g., Washington Rule of Professional Conduct 3.7 (1995)
( “A lawyer shall not act as advocate at a trial in which the lawyer
... is likely to be a necessary witness,” unless four narrow exceptions
apply); ABA Model Rules of Professional Conduct 3.7 (1992).
Nevertheless, petitioner argues that
the execution of the certificate was just one incident in a presentation
that, viewed as a whole, was the work of an advocate and was integral
to the initiation of the prosecution. That characterization is appropriate
for her drafting of the certification, her determination that the evidence
was sufficiently strong to justify a probable-cause finding, her decision
to file charges, and her presentation of the information and the motion
to the court. Each of those matters involved the exercise
**510
of professional judgment; indeed, even the selection of the particular
facts to include in the certification to provide the evidentiary support
for the finding of probable cause required the exercise of the judgment
of the advocate. But that judgment could not affect the truth or falsity
of the factual statements themselves. Testifying about facts is the
function of the witness, not of the lawyer. No matter how
*131
brief or succinct it may be, the evidentiary component of an application
for an arrest warrant is a distinct and essential predicate for a finding
of probable cause. Even when the person who makes the constitutionally
required “Oath or affirmation” is a lawyer, the only function that she
performs in giving sworn testimony is that of a witness.
Finally, petitioner argues that denying
her absolute immunity will have a “chilling effect” on prosecutors in
the administration of justice.FN18
We are not persuaded.
FN18.
Brief for Petitioner 25.
It may well be true that prosecutors
in King County may abandon the practice of routinely attesting to the
facts recited in a “Certification for Determination of Probable Cause”
and pattern their procedures after those employed in other parts of
the Nation. Petitioner presents no evidence that the administration
of justice is harmed where the King County practice is not followed.
In other respects, however, her argument addresses concerns that are
not affected by our decision because we merely hold that
§ 1983 may provide a remedy for respondent insofar as petitioner
performed the function of a complaining witness. We do not depart from
our prior cases that have recognized that the prosecutor is fully protected
by absolute immunity when performing the traditional functions of an
advocate. See
Imbler, 424 U.S., at 431, 96 S.Ct., at 995-996;
Buckley, 509 U.S., at 273, 113 S.Ct., at 2615-2616.
[Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502 (U.S.Wash.,1997)]