- Plaintiff sues following acquittal on murder charge; court finds probable cause and affirms summary judgment for defendants on malicious prosecution claim, but finds viable due process claim based on witness’s affidavit that officers induced him to identify plaintiff as guilty party, finds district court erred in concluding that affidavit was incredible as a matter of law; probable cause is not a defense to a due process claim based on fabrication of evidence; due process claim does not fail even though witness did not testify at plaintiff’s criminal trial: “Notwithstanding the nomenclature, a criminal defendant’s right to a fair trial protects more than the fairness of the trial itself. Indeed, a criminal defendant can bring a fair trial claim even when no trial occurs at all … [previous cases] establish that the (perhaps imprecisely named) fair trial right protects against deprivation of liberty that results when a police officer fabricates and forwards evidence to a prosecutor that would be likely to influence a jury’s decision, were that evidence presented to the jury … And we have expressly distinguished this right from the separate, although related, right not to be convicted based on the use of false evidence at trial.
- With respect to the right to a “fair trial,” I have long urged plaintiffs’ lawyers to avoid the term when claiming fabrication of evidence, failure to disclose exculpatory evidence, obtaining unreliable eyewitness identifications, and the like, and to allege instead a denial of liberty without due process. That is the constitutional right in question. Claims based on a denial of a fair trial invite the defenses that in the absence of a trial there is no constitutional violation, or that there is no violation of the right where the witness in question or the fabricated evidence is not offered at trial. See, Police Misconduct: Law and Litigation, §2:30; Avery, “Paying for Silence: The Liability of Police Officers under Section 1983 for Suppressing Exculpatory Evidence
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Actionable Conduct Edition