Thinking about suing the prosecuting attorney for defamation because the false criminal charges he brought against you damaged your reputation and were ultimately dismissed? Well, don’t. Just like you can’t sue a judge who finds you guilty, you generally can’t sue a prosecutor for maligning your reputation in the course of a criminal prosecution performed in good faith, even if the charges are ultimately dropped or dismissed. Both judges and–though to a lesser extent–prosecutors are immune for their official acts associated with the judicial phase of the criminal process. Statements made by prosecutors outside the scope of their judicial functions, however, are fair game for defamation suits.
Yesterday, the Virginia Supreme Court clarified the law in this area by holding that although a Commonwealth’s Attorney enjoys quasi-judicial immunity for acts taken within the scope of their duties and intimately associated with the judicial phase of the criminal process, this immunity does not extend to statements made by a Commonwealth’s Attorney outside the confines of a judicial proceeding. The court held that a Commonwealth Attorney’s former administrative assistant could pursue a defamation claim against her former boss based on her allegation that he made false public statements about the reasons for her termination. These statements were not made in the course of performing any judicial or quasi-judicial function, so they were not entitled to immunity.