288
Opinion of Kennedy, J.
cause, as was alleged here, it is difficult to fathom why securing such a fraudulent determination transmogrifies unprotected conduct into protected conduct. Finally, the Court does not question our conclusion in Burns that absolute immunity attached to a prosecutor's conduct before a grand jury because it " 'perform[s] a judicial function.' " 500 U. S., at 490, quoting W. Prosser, Law of Torts § 94, pp. 826-827 (1941). See also Yaselli v. Goff, 12 F. 2d 396 (CA2 1926), aff'd, 275 U. S. 503 (1927). It is unclear to me, then, why preparing for grand jury proceedings, which obviously occur before an indictment is handed down, cannot be "intimately associated with the judicial phase of the criminal process" and subject to absolute immunity. Burns, supra, at 492, quoting Imbler, supra, at 430.
As troubling as is the line drawn by the Court, I find the reasons for its line-drawing to be of equal concern. The Court advances two reasons for distinguishing between pre-probable-cause and post-probable-cause activity by prosecutors. First, the distinction is needed to ensure that prosecutors receive no greater protection than do police officers when engaged in identical conduct. Ante, at 276. Second, absent some clear distinction between investigation and advocacy, the Court fears, "every prosecutor might . . . shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial." Ibid. This step, it is alleged, would enable any prosecutor to "retrospectively describ[e]" his investigative work "as 'preparation' for a possible trial" and therefore request the benefits of absolute immunity. Ibid. I find neither of these justifications persuasive.
The Court's first concern, I take it, is meant to be a restatement of one of the unquestioned goals of our § 1983 immunity jurisprudence: ensuring parity in treatment among state actors engaged in identical functions. Forrester v. White, 484 U. S., at 229; Cleavinger v. Saxner, 474 U. S., at
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