Cite as: 509 U. S. 259 (1993)
Scalia, J., concurring
in accord with the principle to say that prosecutors cannot "properly claim to be acting as advocates" before they have "probable cause to have anyone arrested," ante, at 274, 275— but reference to the common-law cases will be indispensable to show when they can properly claim to be acting "as advocates" after that point, though not yet "during the course of judicial proceedings," ante, at 277.
I believe, moreover, that the vagueness of the "acting-as-advocate" principle may be less troublesome in practice than it seems in theory, for two reasons. First, the Court reaffirms that the defendant official bears the burden of showing that the conduct for which he seeks immunity would have been privileged at common law in 1871. See ante, at 269, 275, 277-278. Thus, if application of the principle is unclear, the defendant simply loses. Second, many claims directed at prosecutors, of the sort that are based on acts not plainly covered by the conventional malicious-prosecution and defamation privileges, are probably not actionable under § 1983, and so may be dismissed at the pleading stage without regard to immunity—undermining the dissent's assertion that we have converted absolute prosecutorial immunity into "little more than a pleading rule," post, at 283. I think petitioner's false-evidence claims in the present case illustrate this point. Insofar as they are based on respondents' supposed knowing use of fabricated evidence before the grand jury and at trial, see ante, at 267, n. 3—acts which might state a claim for denial of due process, see, e. g., Mooney v. Holohan, 294 U. S. 103, 112 (1935) (per curiam)—the traditional defamation immunity provides complete protection from suit under § 1983. If "reframe[d] . . . to attack the preparation" of that evidence, post, at 283, the claims are unlikely to be cognizable under § 1983, since petitioner cites, and I am aware of, no authority for the proposition that the mere preparation of false evidence, as opposed to its use in a fashion that deprives someone of a fair trial or otherwise harms him, violates the Constitution. See Buckley v. Fitzsimmons, 919
281
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