Larry Trent Roberts v. DAVID LAU, Detective

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 22-2340
______________
LARRY TRENT ROBERTS
v.
DAVID LAU, Detective; JOHN C. BAER, Assistant District
Attorney; CITY OF HARRISBURG
John C. Baer,
Appellant
______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1:21-cv-01140)
District Judge: Honorable Jennifer P. Wilson
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 17, 2023
Before: SHWARTZ, MONTGOMERY-REEVES, and
ROTH, Circuit Judges.

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(Opinion filed: January 11, 2024)
Kimberly A. Boyer-Cohen
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street, Suite 2300
Philadelphia, PA 19103
Counsel for Appellant
John J. Coyle
Mark V. Maguire
McEldrew Purtell
123 S Broad Street, Suite 2250
Philadelphia, PA 19109
Counsel for Appellee
______________
OPINION OF THE COURT
______________
MONTGOMERY-REEVES, Circuit Judge.
Larry Trent Roberts spent 13 years in prison for a
murder that he did not commit. After being exonerated,
Roberts sued several state actors involved in obtaining his
wrongful conviction, including Assistant District Attorney
John C. Baer.
According to the complaint, a hole developed in the
prosecution’s already weak case after a detective tried and
failed to fabricate evidence of a conflict between Roberts and
the victim. In response, the Assistant District Attorney took
matters into his own hands by joining the police investigation
and looking for a new witness to establish a motive for the

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killing. That search led Baer to Layton Potter, a known
jailhouse snitch who had been convicted for making false
reports to law enforcement in the past. Baer approached Potter
and got him to concoct a story that Roberts had a dispute with
the victim over unpaid drug debts. Potter repeated that story at
trial, and his false testimony was integral to Roberts’s
conviction.
Baer moved to dismiss the claims against him, arguing
that he was absolutely immune from liability under 42 U.S.C.
§ 1983 because his alleged conduct, locating a new jailhouse
snitch, occurred post-charge and was designed to produce
inculpatory evidence for trial. The District Court denied the
motion, explaining that the doctrine of absolute immunity for
prosecutors did not apply because Baer’s search for a new
witness served an investigatory function. Baer appealed.
We agree with the District Court. When deciding
whether absolute immunity applies, “we examine ‘the nature
of the function performed, not the identity of the actor who
performed it.’” Kalina v. Fletcher, 522 U.S. 118, 127 (1997)
(quoting Forrester v. White, 484 U.S. 219, 229 (1988)). Thus,
prosecutors are not entitled to absolute immunity when they
“perform[] the investigative functions normally performed by
a detective or police officer.” Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993). Taking the complaint’s well-pleaded
factual allegations as true, which we must do at the motion-to-
dismiss stage, Baer engaged in quintessential “police
investigative work” when he affirmatively searched for and
approached a new witness to establish motive. Id. at 274 n.5.
Discovery may reveal that these allegations are false and that
Baer’s role was limited to interviewing a witness in preparation
for trial. If so, he may yet be entitled to absolute immunity.

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But those are not things that we can say at this early stage of
the proceedings when we must accept the well-pleaded
allegations in the complaint as true and draw all reasonable
inferences in favor of Roberts. Thus, we will affirm because
Baer has failed to show that he is entitled to absolute immunity
on the face of the complaint.
I. BACKGROUND
Because Baer challenges the District Court’s denial of
his motion to dismiss, we take the facts from the complaint.
A. Duwan Stern Is Murdered
In December 2005, someone shot and killed Duwan
Stern while he was sitting in his car. There were no
eyewitnesses to the murder, but two neighborhood residents
saw the aftermath. The residents saw two male figures lean
into the car from the passenger door. One of the figures was
Thomas Mullen, who admitted to pushing Stern’s body onto
the street and rummaging through the car for money or drugs.
The other figure has not been identified.
About an hour after the shooting, David Lau, a detective
with the Harrisburg Police Department, arrived at the scene.
While Lau was at the scene, Stern’s cellphone received three
calls from the same phone number in a matter of minutes. The
caller was Roberts, who was seeking to refute a rumor that
Stern had been killed. Lau recognized Roberts’s name or
phone number because they had a history. In 1994, Lau struck
Roberts with a firearm while arresting him. Roberts went to
the hospital after the arrest. To justify his actions, Lau charged
Roberts with assault. A court dismissed the charge.
Nonetheless, this interaction led Lau to believe—without

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cause—that Roberts was capable of murder. So Lau decided
to include Roberts’s picture in photo arrays in this case even
though he was approximately 100 pounds heavier and 20 years
older than the unidentified male figure that the witnesses
described.
Lau showed the photo arrays to both residents and
Mullen. None identified Roberts. To the contrary, one of the
residents selected someone other than Roberts, and the other
resident “favor[ed]” someone other than Roberts but stopped
short of making a positive identification. App. 44.
B. Lau and Baer Fabricate Evidence
Although police found no evidence inculpating Roberts,
Lau zeroed in on him as the prime suspect. To that end, Lau
took Roberts into custody under the pretense that he was
addressing a separate matter and then persuaded Roberts to
participate in a flawed, coercive, and unreliable suspect lineup
for one of the neighborhood residents. The resident—who was
influenced by the defective lineup Lau orchestrated—
identified Roberts as the unknown male figure that she saw
near Stern’s car on the night of the murder. Lau used the
resident’s contaminated identification to support an affidavit of
probable cause to arrest Roberts for the false charge of
murdering Stern.
After arresting Roberts for a murder that he did not
commit, Lau decided to shore up the state’s case by fabricating
evidence. Lau’s first stop was Mullen, who was near the scene
at the time of the shooting and gave self-serving statements that
did not inculpate Roberts. Lau encouraged Mullen to provide

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a false statement that Roberts confessed to the murder, and
Mullen obliged.
Next, Lau approached an associate of Roberts to
manufacture a motive for Stern’s murder. Lau claimed that
Roberts and Stern had a conflict related to the sale of a car and
attempted to coerce the associate to provide false testimony
supporting that narrative. The associate refused to cooperate,
and Lau abandoned the “car-conflict” motive.
After the car-conflict motive fell through, Lau turned to
Baer for help devising a new motive. Baer was an assistant
district attorney assigned to prosecute the case. The complaint
alleges that “Baer joined . . . Lau’s investigation and began
affirmatively seeking a jailhouse snitch who would testify as
to a motive.” App. 52. In other words, the complaint alleges
that Baer’s actions were not taken in response to leads already
identified by Lau, but rather, that he was a joint actor with Lau
in locating additional evidence.
For instance, the complaint alleges that “[i]n
October 2007, nearly [two] years after the murder . . . and just
one month before trial, . . . Baer and . . . Lau’s investigation led
them to Layton Potter, a known jailhouse snitch.” Id. Baer
knew that Potter lacked any credibility because he had been
convicted of making false reports to law enforcement and
regularly used crack cocaine. But Baer “approached” Potter
anyway and “asked him if he ‘wanted a piece’ of the case
against . . . Roberts.” Id. Potter wanted a piece “to gain favor
related to hi[s] own pending criminal charges” and “fabricated
a story . . . out of whole cloth . . . that . . . Roberts and . . . Stern

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were both in the drug business and had a dispute over unpaid
drug debts.” App. 52–53.
The value of Potter’s statement “was made clear at trial
when . . . Baer told the jury . . . that . . . Potter would ‘help them
understand how and why’ the killing occurred.” App. 53. All
of Potter’s testimony was false. But because of the unlawful
actions by Lau, Baer, and the City of Harrisburg Police
Department, Roberts was wrongfully convicted of murder and
sentenced to life in prison without the possibility of parole.
C. The District Court Denies Baer’s Motion to
Dismiss
In 2018, a Pennsylvania appellate court held that
Roberts was entitled to a new trial. The state retried Roberts,
and a jury acquitted him of all charges. Afterward, Roberts
filed a complaint in the District Court alleging six claims
related to his wrongful conviction. The complaint named as
defendants Lau, Baer, and the City of Harrisburg (“City”).
Relevant here were Counts II and IV, which brought
claims against Baer under 42 U.S.C. § 1983 for fabricating and
conspiring to fabricate evidence, in violation of the Fourth and
Fourteenth Amendments. Both Counts focused on Baer’s
alleged search for a new witness. Count II alleged that Baer
“fabricated evidence by way of [k]nowingly influencing,
enticing, and coercing an inculpatory statement from Layton
Potter: a jailhouse snitch, who lacked any credibility, whose
statement could not be corroborated, and was only concerned
with benefiting himself.” App. 61.
Count IV alleged that “Lau and . . . Baer conspired to
fabricate evidence for the purpose of convicting an actually

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innocent man . . . .” App. 63. As overt acts, Count IV alleged
that Lau and Baer “[k]nowingly sought out, influenced,
enticed, and coerced an inculpatory statement from . . . Potter:
a jailhouse snitch, who lacked any credibility, whose statement
could not be corroborated, and was only concerned with
benefiting himself.” Id.
In September 2021, Baer moved to dismiss Counts II
and IV, arguing that he was entitled to absolute immunity as a
prosecutor for his alleged conduct obtaining Potter’s false
testimony. The District Court held that Baer’s alleged conduct
served an investigative function and denied his motion to
dismiss. Baer appealed.1
II. DISCUSSION2
The sole issue on appeal is whether Baer functioned as
an advocate or an investigator when he allegedly went looking
1 While this appeal was pending, Roberts filed an amended
complaint revising his allegations against the City. Because
Roberts did not change his allegations against Baer, this appeal
will “resolve [the] disputed question” of whether Baer is
entitled to absolute immunity on the face of the operative
complaint. Cf. Saint-Jean v. Palisades Interstate Park
Comm’n, 49 F.4th 830, 835 (3d Cir. 2022).
2 The District Court had subject-matter jurisdiction over
Roberts’s claims against Baer under 28 U.S.C. § 1331. We
have appellate jurisdiction under 28 U.S.C. § 1291 because
whether the District Court erred by denying Baer’s motion to
dismiss based on absolute immunity is a purely legal question
appealable under the collateral order doctrine. See, e.g., Fogle

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for a new witness to fabricate a motive for Roberts to kill Stern.
If this alleged conduct served a prosecutorial function, Baer is
absolutely immune from liability under § 1983. But if Baer’s
alleged search for a new witness went beyond his role as a
quasi-judicial advocate and served an investigative function,
absolute immunity does not attach because that defense only
shields “actions [that are] intimately associated with the
judicial phases of litigation.” Weimer v. County of Fayette, 972
F.3d 177, 187 (3d Cir. 2020) (quoting Odd v. Malone, 538 F.3d
202, 208 (3d Cir. 2008)).
We conclude that Baer is not entitled to absolute
immunity on the face of the complaint. This conclusion is
based on our reading of two relevant cases from our Court:
Yarris, 465 F.3d at 129, and Fogle, 957 F.3d at 148. These
v. Sokol, 957 F.3d 148, 155 (3d Cir. 2020) (“[W]e may review
an ‘interlocutory appeal of the District Court’s order denying
absolute . . . immunity . . . to the extent that the order turns on
issues of law.’” (some alterations in original) (quoting Yarris
v. County of Delaware, 465 F.3d 129, 134 (3d Cir. 2006))
(citing Oliver v. Roquet, 858 F.3d 180, 187–88 (3d Cir.
2017))).
“Review of a district court’s order denying a motion to dismiss
on absolute immunity grounds is plenary.” Fogle, 957 F.3d at
156 (citing Yarris, 465 F.3d at 134). “[W]e apply the same
standard as the District Court, accepting as true the factual
allegations in the complaint and drawing all reasonable
inferences in [the plaintiff’s] favor . . . .” Odd v. Malone, 538
F.3d 202, 207 (3d Cir. 2008) (first citing Yarris, 465 F.3d at
134; and then citing Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d
Cir. 1994)).

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cases compel the conclusion that Baer functioned as an
investigator, not an advocate, when he identified and tracked
down Potter and solicited Potter’s false testimony as to motive
in return for favorable treatment of the criminal charges
pending against him. As we held in Fogle, “the ‘key to the
absolute immunity determination is not the timing of the
investigation relative to a judicial proceeding, but rather the
underlying function that the investigation serves and the role
the [prosecutor] occupies in carrying it out.’” 957 F.3d at 163
(second alteration in original) (quoting B.S. v. Somerset
County, 704 F.3d 250, 270 (3d Cir. 2013)). Baer engaged in
“police investigative work” when he allegedly embarked on a
post-charge search for a new witness to plug a hole in the
prosecution’s case. See Buckley, 509 U.S. at 274 n.5. Thus,
Baer is not entitled to absolute immunity at the motion-to-
dismiss stage because his alleged conduct served an
investigative function.3
To explain our analysis, we begin by summarizing the
doctrine of absolute immunity for prosecutors. We then
3 The dissent reads the complaint to allege that “[Lau]
identified [Potter] as a potential witness.” Dissent 4 n.3. The
relevant paragraph from the complaint alleges, “It was only
after it became clear to Detective Lau that Mr. Gibson [i.e., the
car-conflict witness] did not intend to cooperate in his scheme
to present fabricated evidence that Detective Lau abandoned
the ‘car conflict’ motive, that he began to conspire with ADA
Baer to use Layton Potter to create a new motive.” App. 52
¶ 83. None of these words say that Lau identified Potter as a
potential witness. Further, the next paragraph alleges that “[i]n
order to fabricate evidence of motive, ADA Baer joined

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Detective Lau’s investigation and began affirmatively seeking
a jailhouse snitch who would testify as to a motive.” App. 52
¶ 84. It is unclear whom Baer could have been “affirmatively
seeking” if Lau had already identified Potter—i.e., a “jailhouse
snitch”—as a potential witness.
The dissent also states that the majority opinion “mix[es] the
allegations against [Lau] and [Baer]” when it “suggests that
[Baer] allegedly determined that the case was weak, initiated
and conducted a search, and identified [Potter].” Dissent 4 n.3.
Paragraph 84 of the complaint alleges that “[i]n order to
fabricate evidence of motive, ADA Baer joined Detective
Lau’s investigation and began affirmatively seeking a jailhouse
snitch who would testify as to a motive.” App. 52. The next
paragraph alleges, “In October 2007, nearly [two] years after
the murder of Mr. Stern and just one month before trial, ADA
Baer and Detective Lau’s investigation led them to Layton
Potter, a known jailhouse snitch.” Id. ¶ 85. And paragraph 86
alleges, “ADA Baer approached Mr. Potter and asked him if he
‘wanted a piece’ of the case against Mr. Roberts.” Id. Thus,
we read the complaint to state, clearly, that Baer determined
that the case was weak without evidence of motive and went
looking—with Lau—for a new witness, whom Baer
approached and persuaded to provide false testimony. And we
would have to draw an inference against Roberts—the plaintiff
and non-moving party—to conclude that Lau identified Potter
as a potential witness. Cf. Yarris, 465 F.3d at 134 (“[I]n order
to determine whether [a state actor is] entitled to absolute . . .
immunity from any claims based on their alleged conduct,”
“[w]e must construe the facts in the manner most favorable to
[the plaintiff].”).

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identify the particular conduct that Roberts challenges in his
complaint and explain why Baer is not entitled to absolute
immunity for allegedly engaging in that conduct under the
appropriate framework.
A. The Doctrine of Absolute Immunity for
Prosecutors
Prosecutors like Baer are absolutely immune from
liability under § 1983 for engaging in conduct that serves a
quasi-judicial function. See, e.g., Kulwicki v. Dawson, 969
F.2d 1454, 1463 (3d Cir. 1992) (“Absolute immunity attaches
to all actions” that a prosecutor “perform[s] in a ‘quasi-
At bottom, the question we must answer is whether Baer
functioned as an investigator or an advocate when he went
looking, post-charge, for a new witness to establish motive.
We read controlling precedent to compel the conclusion that
this alleged conduct served an investigative function. The
dissent reads the same precedent to compel the opposite result.
Perhaps that divergence suggests that this case presents a tough
question with no clear answer. This does not mean, however,
that we ought to tip the scales in favor of absolute immunity by
drawing inferences against the plaintiff when evaluating a
motion to dismiss. To the contrary, Baer has the burden to
“show that the conduct triggering absolute immunity ‘clearly
appear[s] on the face of the complaint.’” Fogle, 957 F.3d at
161 (citing Wilson v. Rackmill, 878 F.2d 772, 776 (3d Cir.
1989)). Thus, to the extent that this case presents a difficult
question, it should be unsurprising that the party who has the
burden to show that they are clearly entitled to absolute
immunity on the face of the complaint has failed to prevail on
a motion to dismiss.

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judicial’ role.” (quoting Imbler v. Pachtman, 424 U.S. 409,
430 (1976))). To serve a quasi-judicial function, conduct must
be “intimately associated with the judicial phase of the criminal
process” or an analogous judicial proceeding. See Imbler, 424
U.S. at 430. Thus, absolute immunity does not shield
“administrative or investigatory actions unrelated to initiating
and conducting judicial proceedings.” Weimer, 972 F.3d at
187 (quoting Odd, 538 F.3d at 208).
Our analysis of whether a prosecutor is entitled to
absolute immunity “has two basic steps, though they tend to
overlap.” Fogle, 957 F.3d at 161 (quoting Schneyder v. Smith,
653 F.3d 313, 332 (3d Cir. 2011)). “First, we ‘ascertain just
what conduct forms the basis for the plaintiff’s cause of
action.’ Then, we ‘determine what function (prosecutorial,
administrative, investigative, or something else entirely) that
act served . . . .” Id. (quoting Schneyder, 653 F.3d at 332). “To
earn the protections of absolute immunity at the motion-to-
dismiss stage, a [prosecutor] must show that the conduct
triggering absolute immunity clearly appears on the face of the
complaint.” Weimer, 972 F.3d at 187 (cleaned up) (quoting
Fogle, 957 F.3d at 161).
B. Whether Baer Is Entitled to Absolute
Immunity
The complaint alleges that “after it became clear” that
an associate of Roberts’s “did not intend to cooperate in
[Lau’s] scheme to present fabricated evidence” supporting the
car-conflict motive, “Baer joined . . . Lau’s investigation and
began affirmatively seeking a jailhouse snitch who would
testify as to a motive.” App. 52. “[O]ne month before trial,
. . . Baer and . . . Lau’s investigation led them to . . . Potter, a
known jailhouse snitch.” Id. Baer knew that Potter lacked any

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credibility because he had been convicted of making false
reports to law enforcement in the past. But Baer “approached
. . . Potter” anyway, id.; “asked [Potter] if he ‘wanted a piece’
of the case against . . . Roberts,” id.; and “[k]nowingly . . .
influenced, enticed, and coerced” Potter to provide false
testimony establishing motive. App. 63.
Baer argues that his alleged conduct served a
prosecutorial function because it “occurred only one month
prior to trial and for the purpose of getting Potter to testify at
trial.” Opening Br. 22. For support, Baer primarily relies on
this Court’s opinion in Yarris, which held that prosecutors
were entitled to absolute immunity for allegedly using “‘stick
and carrot’ treatment to elicit . . . false testimony” from a
jailhouse informant. 465 F.3d at 139.
Roberts responds that this alleged conduct served an
investigative function because “Baer sought out, influenced,
enticed, and coerced a jailhouse snitch into giving a statement
for the purpose of formulating a motive.” Response Br. 11.
For support, Roberts primarily relies on this Court’s opinion in
Fogle, which held that prosecutors were not entitled to absolute
immunity for “solicit[ing] false statements from jailhouse
informants” and “deliberately encourag[ing] . . . State
Troopers to do the same.” 957 F.3d at 164.
While it is a close call, we conclude that Roberts has the
better argument. The allegations that Baer went looking for a
new witness to provide false testimony describe an
investigator’s work “seeking to generate evidence in support
of a prosecution,” not an advocate’s work “interviewing
witnesses as he prepare[s] for trial.” Fogle, 957 F.3d at 163–
64 (quoting Buckley, 509 U.S. at 273). As such, the District
Court did not err by denying Baer’s motion to dismiss because

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his alleged conduct served an investigative function. We reach
this conclusion for two reasons: (1) Baer relies on a bright-line
rule inconsistent with the functional approach to absolute
immunity; and (2) Fogle provides a closer match than Yarris
to Baer’s alleged conduct, and its reasoning dictates that Baer
is not entitled to absolute immunity on the face of the
complaint. We expound on both reasons below.
1. The fact-specific nature of absolute
immunity
Baer argues that his alleged search for a new witness
served a prosecutorial function because it occurred post-charge
and was designed to produce inculpatory evidence for trial.
Neither reason carries the day.
The first part of this equation cannot be enough. The
Supreme Court has explained that “a determination of probable
cause [for an arrest] does not guarantee a prosecutor absolute
immunity from liability for all actions taken afterwards. Even
after that determination, . . . a prosecutor may engage in ‘police
investigative work’ that is entitled to only qualified immunity.”
Buckley, 509 U.S. at 274 n.5. And while the fact that conduct
occurred pre-charge might establish that it did not serve a
prosecutorial function, id. at 274 (“A prosecutor neither is, nor
should consider himself to be, an advocate before he has
probable cause to have anyone arrested.”), the inverse is not
true. Detectives can continue to investigate a crime and
generate evidence after charges have been filed. Thus, the fact
that a prosecutor sought to generate evidence post-charge

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cannot be enough to show that their conduct served a
prosecutorial function.
The second part fares no better. Prosecutors who seek
to generate evidence post-charge almost always can describe
their conduct as an effort to produce inculpatory evidence for
trial. So, absent unusual circumstances, holding that a
prosecutor’s effort to generate evidence for an ongoing judicial
proceeding always serves a quasi-judicial function is really just
a bright-line rule based on timing. And while the absence of a
link to a judicial proceeding might establish that conduct did
not serve a prosecutorial function, Giuffre, 31 F.3d at 1254
(“[A]ctions [that] ‘have no functional tie to the judicial
process’ . . . are not entitled to absolute immunity merely
because they were actions undertaken by a prosecutor.”
(quoting Buckley, 509 U.S. at 277)), the inverse is not true.
Detectives generate inculpatory evidence for trial. But they are
not quasi-judicial advocates entitled to absolute immunity.
Thus, the fact that a prosecutor generated evidence for an
ongoing judicial proceeding cannot per se be enough to show
that their conduct served a prosecutorial function.4
This leaves the possibility that a combination of post-
charge timing and link to an ongoing judicial proceeding,
4 Baer argues that this Court’s opinion in Rose v. Bartle, 871
F.2d 331 (3d Cir. 1989), supports a bright-line rule that
“soliciting perjured testimony in preparation of and for use in
judicial proceedings is protected by absolute immunity.”
Reply Br. 5. Rose predates Buckley and thus did not have the
benefit of the Supreme Court’s guidance that tying evidence to
a judicial proceeding is not enough to show that its fabrication
served a prosecutorial function. 509 U.S. at 276; see also

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without more, is enough to show that a prosecutor’s generation
of evidence served a prosecutorial function. But that bright-
line rule cannot be the answer either, as Fogle and Yarris both
dealt with post-charge efforts by prosecutors to fabricate
evidence for trial. See Yarris, 465 F.3d at 139 (“As the
Amended Complaint makes clear, Yarris had already been
charged . . . before [a jailhouse informant] made any
statements about what Yarris told him while they were held in
adjacent prison cells.” (citation omitted)); Fogle, 957 F.3d at
163–64 (rejecting the argument that “absolute immunity
protect[ed]” prosecutors’ search for new jailhouse informants
because it “occurred after the initiation of criminal charges”
Karns v. Shanahan, 879 F.3d 504, 514 (3d Cir. 2018) (“[A]
panel may revisit a prior holding of the Court ‘which conflicts
with intervening Supreme Court precedent.’” (quoting In re
Krebs, 527 F.3d 82, 84 (3d Cir. 2008)) (citing Council of Alt.
Pol. Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999))).
In any event, Rose is distinguishable because that plaintiff
provided “no elaboration in the pleadings regarding the
circumstances in which the alleged solicitations of perjury took
place,” except that a prosecutor “asked[] or coerced [a witness]
to testify perjuriously before the grand jury.” 871 F.2d at 344
(citations omitted). Roberts provided detailed allegations
describing the actions that Baer took to affirmatively search for
a new jailhouse informant and coerce him to provide false
testimony. See infra Section II.B.2. Thus, his complaint does
not lack “elaboration . . . regarding the circumstances in which
the alleged solicitations of perjury took place.” Rose, 871 F.2d
at 344.

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(citation omitted)).5 Moreover, our case law has cautioned that
determining whether a prosecutor is entitled to absolute
immunity requires a fact-intensive inquiry that generally
cannot be reduced to bright-line rules.6 And this would be a
5 The dissent argues that “this case is more like Yarris than
Fogle . . . [because] the complaint clearly states that [Baer]
solicited the witness’s statement for the purpose of gathering
testimony, and the temporal proximity to the trial shows this
testimony was intended to be used for trial rather than for an
investigative purpose.” Dissent 10–11. But the complaint
from Fogle also alleged that prosecutors solicited false
testimony post-charge to shore up the state’s case at trial. See,
e.g., 957 F.3d at 154 (“The case quickly began to unravel as
the defendants discovered [a witness’s] wandering and
inconsistent theories had largely powered the criminal
complaints. Timely support soon arrived from jailhouse
informants recruited and counseled by the State Troopers.”);
id. at 164 (“Prosecutors not only solicited false statements from
jailhouse informants, but deliberately encouraged the State
Troopers to do the same ‘[k]nowing their evidence was weak’
. . . .” (first alteration in original)). So neither the timing of
alleged conduct as post-charge nor a connection to trial
distinguishes Yarris from Fogle.
6 See, e.g., Odd, 538 F.3d at 210 (“We have rejected bright-line
rules that would treat the timing of the prosecutor’s action (e.g.
pre- or post[-]indictment), or its location (i.e. in- or out-of-
court), as dispositive.” (first citing Rose, 871 F.2d at 346; and
then citing Kulwicki, 969 F.2d at 1463)); Fogle, 957 F.3d at
164 (“Our role is not to look at the ‘timing of the prosecutor’s
action (e.g. pre- or post-indictment),’ but at the function being
performed.” (quoting Odd, 538 F.3d at 210)).

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two-part inquiry in name only, as the connection-to-a-judicial-
proceeding prong would collapse into the post-charge-timing
prong in nearly all cases for the reasons provided above.
Accordingly, this line of argument leads us back to
where we started. “Following the Supreme Court’s guidance,
our prosecutorial immunity analysis focuses on the unique
facts of each case and requires careful dissection of the
prosecutor’s actions.” Odd, 538 F.3d at 210 (first citing Yarris,
465 F.3d at 136; and then citing Kulwicki, 969 F.2d at 1463).
The timing of conduct as pre- or post-indictment and the
presence or absence of a connection to a judicial proceeding
are “relevant” “considerations . . . to the extent that they bear
upon the nature of the function the prosecutor is performing.”
Id. (first citing Yarris, 465 F.3d at 138–39; and then citing
Kulwicki, 969 F.2d at 1467). But they are not enough to
establish that a prosecutor’s post-charge effort to fabricate
evidence for trial served a quasi-judicial function, alone or
combined. And the ultimate question is whether Baer has
established—on the face of the complaint—that he “was
functioning as the state’s ‘advocate’” when he affirmatively
sought a new witness and coerced him to provide false
testimony. Yarris, 465 F.3d at 136 (citing Buckley, 509 U.S. at
274).
Having dispensed with bright-line rules, we turn to the
nuanced inquiry of whether Fogle or Yarris provides a closer

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20
fit to Baer’s alleged conduct and assess whether he is entitled
to absolute immunity under the proper comparator.
2. Applying precedent to Baer’s alleged
fabrication
As we noted above, we recognize that this is a close call.
Ultimately, we conclude that the allegations and reasoning
from Fogle dictate the conclusion that Baer is not entitled to
absolute immunity on the face of the complaint for three
reasons.
First, Baer’s alleged conduct, identifying Potter to
solicit false testimony, is nearly identical to the prosecutors’
alleged conduct in Fogle, recruiting jailhouse informants. In
both cases, a hole developed in the prosecution’s case post-
charge after a witness refused to testify or lost credibility.
Compare Fogle, 957 F.3d at 154 (“The case quickly began to
unravel as the defendants discovered [a witness’s] wandering
and inconsistent theories had largely powered the criminal
complaints.”), with App. 52 (alleging that Lau “began to
conspire with . . . Baer to use . . . Potter to create a new motive”
after the car-conflict motive fell through). And in both cases,
“[t]imely support soon arrived” from new “jailhouse
informants,” whom prosecutors “recruited” to provide false
testimony “[k]nowing their evidence was weak.” Compare
Fogle, 957 F.3d at 154, 164, with App. 52–53 (alleging that
Baer found Potter “just one month before trial” and persuaded
him to provide false testimony implicating Roberts). Finally,
both complaints alleged that prosecutors collaborated with
police officers to find new witnesses willing to provide false
testimony. Compare Fogle, 957 F.3d at 164 (“Fogle alleges
that the Prosecutors not only solicited false statements from
jailhouse informants, but deliberately encouraged the State

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21
Troopers to do the same . . . .”), with App. 52 (alleging that
“Baer joined . . . Lau’s investigation and began affirmatively
seeking a jailhouse snitch who would testify as to a motive”).
Given these similarities, we agree with the District Court that
Baer’s alleged search for a new witness involved conduct that
Fogle “plainly stated . . . ‘do[es] not enjoy absolute
immunity.’” Roberts v. Lau, No. 1:21-CV-01140, 2022 WL
2677473, at *3 (M.D. Pa. July 11, 2022) (quoting Fogle, 957
F.3d at 162).7 This is an investigatory function and
distinguishable, for instance, from a similar but different
situation where a prosecutor might interview and meet a
previously unknown witness who has been located and
identified by investigators.
Second, like the plaintiff in Fogle, Roberts provided
detailed allegations describing the actions that Baer took to
find a new jailhouse informant and coerce him to provide false
testimony. See, e.g., Fogle, 957 F.3d at 164 (“Fogle alleges
that the Prosecutors not only solicited false statements from
jailhouse informants, but deliberately encouraged the State
Troopers to do the same knowing their evidence was weak
. . . .” (cleaned up)). Contrastingly, the plaintiff in Yarris
vaguely alleged that prosecutors used “stick and carrot
treatment to elicit . . . false testimony” and “did not describe in
detail when or how the prosecutors obtained a false statement
7 Our dissenting colleague argues that “a prosecutor’s choice
to offer motive evidence and to speak with a witness about the
topic, as [Baer] did here, constitutes an advocacy function.”
Dissent 7 n.6. We agree. But that does not change our analysis
because it was Baer’s alleged search for a new witness that
served an investigative function, not Baer’s decision to speak
with the witness and present his false testimony at trial.

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22
from a jailhouse informant.” 465 F.3d at 139 (cleaned up).
The more detailed allegations present here and in Fogle
provide more support to conclude, at the motion-to-dismiss
stage, that the prosecutors functioned as investigators by
searching for a new witness to provide false testimony. This
level of detail also helps to reduce the risk of vexatious
litigation, as it is more difficult for a plaintiff with a frivolous
claim to provide in a complaint detailed allegations of
prosecutorial misconduct than vague ones. See generally Van
de Kamp v. Goldstein, 555 U.S. 335, 341 (2009) (explaining
that one reason why the Supreme Court extended absolute
immunity to prosecutors was “the general common-law
concern that harassment by unfounded litigation could both
cause a deflection of the prosecutor’s energies from his public
duties and also lead the prosecutor to shade his decisions
instead of exercising the independence of judgment required
by his public trust.” (cleaned up) (quoting Imbler, 424 U.S. at
423)).8
Third and finally, Baer places too much weight on the
allegation from Fogle that prosecutors participated in “a long
8 The dissent argues that “Fogle’s reasoning that ‘generating
evidence’ to support a prosecution constitutes an investigative
function conflicts with our earlier cases holding that collecting
evidence in preparation for trial or grand jury proceedings is an
advocacy function.” Dissent 9 (first citing Yarris, 465 F.3d at
139; then citing Rose, 871 F.2d at 244; and then citing Buckley,
509 U.S. at 273). We disagree as this seems to bring us back
to a bright-line rule. Holding that a prosecutor’s effort to
fabricate evidence for a judicial proceeding always serves a
quasi-judicial function would grant prosecutors carte blanche

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23
to investigate their theory of the case post-charge. See supra
Section II.B.1. That result cannot be squared with the Supreme
Court’s direction in Buckley that, “[o]f course, a determination
of probable cause does not guarantee a prosecutor absolute
immunity from liability for all actions taken afterwards. Even
after that determination . . ., a prosecutor may engage in ‘police
investigative work’ that is entitled to only qualified immunity.”
509 U.S. at 274 n.5. Considering that Yarris cited Buckley with
approval, 465 F.3d at 135–36, we are reluctant to adopt an
interpretation of this Court’s holding that conflicts with the
Supreme Court’s direction, especially when doing so means
endorsing a bright-line rule that would undermine the
functional approach to absolute immunity, see id. at 136 (“As
the Supreme Court explained in Kalina . . ., ‘in determining
immunity, we examine the nature of the function performed,
not the identity of the actor who performed it.’” (quoting 522
U.S. at 127)).
The dissent also argues that “[a] review of [Yarris and Fogle]
reveals that the crux of the allegations regarding the solicitation
of false testimony was nearly identical.” Dissent 10 n.8
(emphasis added). Maybe so. But the functional approach to
absolute immunity requires that courts carefully parse the
allegations a plaintiff makes in their complaint. And only the
complaint from Fogle described what prosecutors did to find a
new witness able to provide false testimony. Compare Fogle,
957 F.3d at 164 (“Fogle alleges that the Prosecutors not only
solicited false statements from jailhouse informants, but
deliberately encouraged the State Troopers to do the same
‘[k]nowing their evidence was weak’ . . . .” (first alteration in
original)), with Yarris, 465 F.3d at 139 (“Yarris . . . claims that

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24
chain of investigative events” stretching back before there was
probable cause to bring charges. See 957 F.3d at 163. This
Court groups related conduct together when identifying its
function. Consistent with that approach, Fogle analyzed
prosecutors’ alleged efforts to solicit false statements from new
jailhouse informants separately from the other conduct in that
long chain of investigative events. See 957 F.3d at 161–64; see
also Yarris, 465 F.3d 136–39 (analyzing prosecutor’s alleged
effort to obtain a false statement from a jailhouse informant
separately from other types of challenged conduct). True,
Fogle referred to other conduct in that chain of events while
discussing whether prosecutors were entitled to absolute
immunity for soliciting false testimony from jailhouse
informants. 957 F.3d at 164. But it did so to explain how
prosecutors knew that the state’s case was weakened and
would benefit from fabricated evidence. Id. Identifying a
motive to fabricate does not change the Court’s conclusion that
the fabrication served an investigative function because
prosecutors sought “to generate evidence in support of a
the [prosecutors] used a ‘stick and carrot’ treatment to elicit . .
. false testimony, . . . although he . . . does not describe in detail
when or how the [prosecutors] obtained a false statement from
a jailhouse informant.” (cleaned up)). Thus, Fogle is
consistent with Yarris. And we see no reason to read Yarris as
standing for the overbroad proposition that prosecutors always
are entitled to absolute immunity when they seek to generate
evidence for an ongoing judicial proceeding.

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25
prosecution.” Id. And neither does the fact that prosecutors
engaged in other conduct before bringing charges.9
For the reasons provided above, Fogle provides a closer
fit to Baer’s alleged conduct than Yarris. And its reasoning
compels the result that Baer is not entitled to absolute
immunity on the face of the complaint. Baer “played ‘the
detective’s role’ to ‘search[] for . . . clues and corroboration’”
when he went looking for a new jailhouse informant, found
Potter, approached Potter, and knowingly influenced, enticed,
and coerced Potter to provide false testimony. 957 F.3d at 162
(alteration in original) (quoting Buckley, 509 U.S. at 273).
“[W]hen the functions of prosecutors and detectives are the
same, as they were here, the immunity that protects them is also
the same.” Id. at 164 (quoting Buckley, 509 U.S. at 276). Thus,
9 Baer notes that Fogle “held that absolute immunity did apply
with regard to . . . [prosecutors’] alleged conduct . . . using
[another witness’s] false statement in the probable cause
affidavit presented to the magistrate judge and failing to report
[the witness’s] past inconsistent statements.” Opening Br. 29
(citing Fogle, 957 F.3d at 162). That distinction makes no
difference because using false evidence in an affidavit—or
failing to disclose exculpatory evidence—does not involve
generating evidence. And like in Fogle, it is Baer’s alleged
effort to generate new evidence by searching for a new
jailhouse informant that served an investigative function. See
957 F.3d at 164 (“[T]he Prosecutors were functioning not as
advocates, but as investigators seeking to generate evidence in
support of a prosecution.”).

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26
Baer is not entitled to absolute immunity because his alleged
conduct served an investigative function.10 11
10 Baer cites a handful of unpublished and out-of-circuit cases
to support his arguments. See Annappareddy v. Pascale, 996
F.3d 120 (4th Cir. 2021); Cousin v. Small, 325 F.3d 627 (5th
Cir. 2003); Neptune v. Carey, 2021 WL 5632077 (3d Cir. Dec.
1, 2021) (not precedential); Jacobs v. City of Philadelphia,
2022 WL 1772989 (3d Cir. June 1, 2022) (not precedential);
Kroemer v. Tantillo, 758 Fed. App’x 84 (2d Cir. 2018)
(summary order). Because this Court’s precedential opinion in
Fogle resolves whether Baer is entitled to absolute immunity
on the face of the complaint, we need not address this non-
binding authority. See generally United States v. Maury, 695
F.3d 227, 259 n.27 (3d Cir. 2012) (“Of course, the decisions of
other circuits, while persuasive, are not binding on the district
courts in this Circuit.”); 3d Cir. I.O.P 5.7 (“The court by
tradition does not cite to its not precedential opinions as
authority. Such opinions are not regarded as precedents that
bind the court . . . .”); 2d Cir. L.R. 32.1.1(a) (“Rulings by
summary order do not have precedential effect.”).
11 The dissent argues that denying Baer’s motion to dismiss
“means that every time a prosecutor prepares for trial and
determines that an additional piece of evidence is needed to
prove the crime beyond a reasonable doubt, he is acting in an
investigative role.” Dissent 8. Not so. The complaint alleges
that Baer went looking for a new witness to establish motive.
Holding that this alleged conduct served an investigatory
function does not mean that prosecutors who identify a hole in
the state’s case ahead of trial—but do not attempt to fill that
hole by affirmatively searching for a new witness—will lose

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27
* * * * *
To prevail, Baer “must show that the conduct triggering
absolute immunity clearly appears on the face of the
complaint.” Weimer, 972 F.3d at 187 (cleaned up) (quoting
Fogle, 957 F.3d at 161). “[T]hat burden is uniquely heavy” at
the motion-to-dismiss stage “because . . . ‘it is the
[prosecutor’s] conduct as alleged in the complaint that is
scrutinized.” Fogle, 957 F.3d at 160 (emphasis in original)
(quoting Behrens v. Pelletier, 516 U.S. 299, 309 (1996)) (citing
Odd, 538 F.3d at 207).
Baer has failed to carry that burden for the reasons
provided above. This does not mean, however, that Baer is
precluded from asserting an absolute immunity defense at later
stages of this litigation. For example, Baer can test Roberts’s
allegations in discovery. As the record develops, Baer may be
able to establish that his conduct served a quasi-judicial
function. If so, he may yet be entitled to absolute immunity.
See generally Kalina, 522 U.S. at 121 (assessing whether a
prosecutor was entitled to absolute immunity at summary
judgment). But that is a question for another day. And
accepting as true all of the well-pleaded factual allegations that
Roberts included in his complaint, as we must when
considering a motion to dismiss, see, e.g., Odd, 538 F.3d at
207, Baer is not entitled to absolute immunity because his
alleged search for a new witness served an investigative
the protection of absolute immunity. And we fail to see how a
prosecutor’s alleged search for a new witness constitutes an
“out-of-court ‘effort to control the presentation of [a]
witness’[s] testimony.’” Buckley, 509 U.S. at 272–73
(alteration in original) (quoting Imbler, 424 U.S. at 430 n.32).

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28
function. Thus, the District Court did not err by denying Baer’s
motion to dismiss.
III. CONCLUSION
For the reasons discussed above, we will affirm the
District Court’s order denying Baer’s motion to dismiss.

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Page 1 of 11
SHWARTZ, J., dissenting
My colleagues have concluded that the Assistant
District Attorney’s (“ADA”) interview of a potential trial
witness constituted an investigative act that is not shielded by
absolute prosecutorial immunity. Because the ADA was acting
as an advocate rather than an investigator when he allegedly
solicited false testimony one month before trial, I would
reverse the District Court’s order denying him absolute
immunity and direct that the Court dismiss the complaint
against him.
A prosecutor is absolutely “immune from a civil suit for
damages” for “activities [] intimately associated with the
judicial phase of the criminal process.” Imbler v. Pachtman,
424 U.S. 409, 430-31 (1976). To determine whether an
activity is associated with the judicial phase, we “focus upon
the functional nature of the activities rather than [the
prosecutor’s] status.” Fogle v. Sokol, 957 F.3d 148, 159 (3d
Cir. 2020) (quotations omitted). This functional test “separates
advocacy from everything else.” Id. at 159-60 (citations
omitted). Protected tasks include “initiating a prosecution and
[] presenting the State’s case,” Imbler, 424 U.S. at 431,
interviewing witnesses and soliciting testimony in preparation
for grand jury proceedings, Rose v. Bartle, 871 F.2d 331, 344-
45 (3d Cir. 1989), obtaining witness statements in connection
with a prosecution, Yarris v. County of Delaware, 465 F.3d

-- 29 of 39 --

Page 2 of 11
129, 139 (3d Cir. 2006), and presenting evidence to a judge,
Burns v. Reed, 500 U.S. 478, 479, 491-92 (1991).1
Conversely, “absolute immunity does not extend to ‘[a]
prosecutor’s administrative duties and those investigatory
functions that do not relate to an advocate’s preparation for the
initiation of a prosecution or for judicial proceedings.’” Yarris,
465 F.3d at 135 (quoting Buckley v. Fitzsimmons, 509 U.S.
259, 273 (1993)). Thus, we must distinguish “the advocate’s
role in evaluating evidence and interviewing witnesses as he
prepares for trial, on the one hand, and the detective’s role in
searching for the clues and corroboration that might give him
probable cause to recommend that a suspect be arrested, on the
other hand.” Buckley, 509 U.S. at 273. We have generally
held that a prosecutor’s conduct “[b]efore probable cause for
an arrest . . . [i]s entirely investigative in character,” but noted
that even after a determination of probable case, “a prosecutor
may engage in police investigative work that is entitled to only
qualified immunity.” Fogle, 957 F.3d at 160 (quoting Buckley,
509 at 274 n.5).2 Ultimately, determining the precise function
1 The immunity is not limited to in-court conduct.
Instead, “the duties of the prosecutor in his role as advocate for
the State involve actions preliminary to the initiation of a
prosecution and actions apart from the courtroom,” since “an
out-of-court effort to control the presentation of [a] witness’
testimony . . . [is] fairly within [the prosecutor’s] function as
an advocate.” Buckley v. Fitzsimmons, 509 U.S. 259, 272-73
(1993) (quotations and citation omitted).
2 As an example of such investigative work, Buckley
noted that “if a prosecutor plans and executes a raid on a
suspected weapons cache,” he is not entitled to absolute
prosecutorial immunity. 509 U.S. at 274.

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Page 3 of 11
of a prosecutor’s action is “fact-specific,” and we have
cautioned against creating bright-line rules or applying
“categorical reasoning” to this analysis. Id.; see also Odd v.
Malone, 538 F.3d 202, 210 (3d Cir. 2008) (rejecting “bright-
line rules that would treat the timing of the prosecutor’s action
(e.g. pre-or post[-]indictment), or its location (i.e. in-or out-of-
court), as dispositive”).
Here, Roberts alleges that “after it became clear to
Detective Lau” that Robert’s associate “did not intend to
cooperate in his scheme . . . [Lau] began to conspire with [the]
ADA [] to use Layton Potter to create a new motive.” App. 52
(Compl. ¶ 83).3 Roberts continues that one month before trial,
3 The primary difference between the dissent and
majority is our view of the complaint. The majority
characterizes the allegations as saying that the ADA looked
for and identified the witness, and concludes, as a result, that
the ADA performed an investigatory function. See Majority
Op. at 10 (“[The ADA] functioned as an investigator, not an
advocate, when he identified and tracked down Potter and
solicited Potter’s false testimony.”); Majority Op. at 14 (“The
allegations that [the ADA] went looking for a new witness . . .
describe an investigator’s work seeking to generate evidence
in support of a prosecution, not an advocate’s work
interviewing witnesses as he prepares for trial.” (internal
quotation marks and citations omitted)); Majority Op. at 25
(“[The ADA] played the detective’s role . . . when he went
looking for a new jailhouse informant [and] found Potter[.]”
(quotations omitted)).
The majority emphasizes that a different conclusion
would be warranted if the ADA had interviewed a witness who

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Page 4 of 11
Lau had identified. See Majority Op. at 6 (“The complaint
alleges that [the ADA’s] actions were not taken in response to
leads already identified by Lau, but rather, that he was a joint
actor with Lau in locating additional evidence.”); Majority Op.
at 21 (“This is an investigatory function and distinguishable,
for instance, from a similar but different situation where a
prosecutor might interview and meet a previously unknown
witness who has been located and identified by
investigators.”). As indicated above, that is precisely what the
complaint alleges: that the Detective identified the individual
as a potential witness. App. 52 (Compl. ¶ 83). Although the
majority relies on the allegation that the ADA “joined [] [the
Detective’s] investigation and began affirmatively seeking a
jailhouse snitch who would testify as to a motive,” Majority
Op. at 21 (citing App. 52 (Compl. ¶ 84)), this does not account
for the fact that this allegedly happened only after Lau
identified the individual as a witness. See App. 52 (Compl. ¶
83). Thus, the Majority and I have different views about this
critical reference to the witness.
Likewise, by mixing the allegations against the
Detective and the ADA, the majority incorrectly suggests that
the ADA allegedly determined that the case was weak, initiated
and conducted a search, and identified the witness. Compare
Majority Op. at 13 (quoting App. 52 ¶¶ 83–84) (“[A]fter it
became clear” that Robert’s associate “did not intend to
cooperate in [the Detectives] scheme to present fabricated
evidence” supporting the car-conflict motive, the ADA “joined
. . . [the Detective’s] investigation and began affirmatively
seeking a jailhouse snitch who would testify as to a motive.”);
with App. 52 ¶¶ 83–84 (“It was only after it became clear to []
[the Detective] that [an associate of Roberts] did not intend to

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Page 5 of 11
the ADA “joined Detective Lau’s investigation and began
affirmatively seeking a jailhouse snitch who would testify as
to a motive.” App. 52 (Compl. ¶¶ 84-85). The ADA then
allegedly met with and solicited a false statement from the
witness, App. 52 (Compl. ¶ 87), and relied on the witness’s
testimony at trial, App. 53 (Compl. ¶¶ 89, 91). These
allegations are nearly identical to the allegations in Yarris,
where the complaint alleged that prosecutors “obtain[ed] a
false statement from a jailhouse informant” after Yarris had
been charged, “used a ‘stick and carrot’ treatment to elicit [the
informant’s] testimony,” and that the informant then provided
false testimony at trial. 465 F.3d at 139. We concluded that
the Yarris prosecutors were “acting as advocates rather than
investigators” when they solicited the false statements because
their “involvement with [the informant’s] statements occurred
after [the] prosecution for those crimes had begun.” Id.
(emphasis omitted); see also Rose, 871 F.2d at 344-45 (holding
that prosecutors’ solicitation and preparation of perjured
testimony was entitled to immunity because these actions
cooperate in his scheme to present fabricated evidence that []
[the Detective] abandoned the ‘car conflict’ motive, that he
began to conspire with [the] ADA [] to use [the witness] to
create a new motive. . . . [The ADA] joined [the Detective’s]
investigation and began affirmatively seeking a jailhouse
snitch who would testify as to a motive.”); cf. Majority Op. at
2-3 (stating that the ADA “took matters into his own hands by
joining the police investigation and looking for a new witness,”
which “led [the ADA] to [] [the witness].”). By doing so, the
majority incorrectly attributes the Detective’s actions to the
ADA.

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Page 6 of 11
“occurred in preparation for the grand jury proceedings, not in
an investigatory capacity”).45
The ADA’s solicitation of the witness’s testimony is
likewise entitled to absolute immunity because the ADA was
4 The majority suggests that the reasoning in Rose did
not survive Buckley’s “guidance that tying evidence to a
judicial proceeding is not enough to show that its fabrication
served a prosecutorial function.” Majority Op. at 16 n.4. This
statement overreads Buckley, which addressed a situation in
which prosecutors sought to match a bootprint found at the
scene of the crime “before they had probable cause to arrest
petitioner or to initiate judicial proceedings,” and well before a
grand jury was empaneled. 509 U.S. at 274-75. Buckley
cautioned that a prosecutor could not convert such acts into
prosecutorial work simply because “after a suspect is
eventually arrested, indicted, and tried, that work may be
retrospectively described as ‘preparation’ for a possible trial.”
Id. at 276. This guidance is thus inapplicable to Rose, where
the alleged “solicitation and preparation of perjured testimony”
was “for use in the grand jury proceedings,” 871 F.2d at 344,
and thus was actually tied to the judicial proceedings.
5 See also Annappareddy v. Pascale, 996 F.3d 120, 140
(4th Cir. 2021) (holding that a prosecutor’s fabrication of
evidence was not “post-indictment police investigative work,”
but rather was undertaken in an “advocative” capacity to
prepare for trial because (1) the conduct “occurred only after
[the plaintiff] had been identified as a suspect, after probable
cause had been established, and after he had been twice
indicted,” id., and (2) the complaint alleged that the prosecutor
began to take a “more hands-on approach in anticipation of

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Page 7 of 11
acting as an advocate in preparation for trial. The alleged
solicitation occurred over a year and a half after Roberts had
been identified as a suspect and charged, and then only after
the Detective identified the witness to the ADA one month
before trial. App. 44, 52 (Compl. ¶¶ 48, 83, 85). While timing
is not dispositive, Fogle, 957 F.3d at 160, the complaint also
specifically alleges that the ADA was seeking someone “who
would testify as to a motive” for the murder.6 App. 52 (Compl.
¶ 84). This statement demonstrates that the ADA was
“evaluating evidence and interviewing witnesses as he
prepare[d] for trial,” rather than just “searching for [] clues.”
Buckley, 509 U.S. at 273. Accordingly, the timing of the
trial, once she realized that the existing [evidence] was not
nearly as favorable to the government as she had expected,” id.
(internal quotation marks, citations, and emphasis omitted)).
6 It is undisputed that the purpose of the witness’s
testimony was to show motive. Motive is not required to
charge an individual with a crime, and it need not be proven to
establish guilt, but it is often helpful to present motive evidence
at trial to provide the jury with context. See Commonwealth
v. Shain, 426 A.2d 589, 591 (Pa. 1981) (explaining that a
prosecutor is not required to show motive, but that motive
“may be relevant to prove the identity of the perpetrator and/or
the degree of the offense,” and that “[w]here the
Commonwealth elects to prove motive . . . it must be
established by legally competent evidence”). The prosecutor
decides the evidence that is presented at trial, and thus a
prosecutor’s choice to offer motive evidence and to speak with
a witness about the topic, as the ADA did here, constitutes an
advocacy function.

-- 35 of 39 --

Page 8 of 11
conduct and its purpose show that the ADA acted as an
advocate rather than an investigator when he met with Potter.7
To hold otherwise means that every time a prosecutor
prepares for trial and determines that an additional piece of
evidence is needed to prove the crime beyond a reasonable
doubt, he is acting in an investigative role. Such a view
essentially narrows the advocacy work protected by absolute
immunity to actions in the courtroom even though the law
clearly recognizes that prosecutors engage in the work of an
advocate outside the courtroom too. See Buckley, 509 U.S. at
272-73 (confirming that actions “apart from the courtroom”
can be entitled to immunity, such as an “out-of-court effort to
control the presentation of [a] witness’ testimony” (quotation
marks and citation omitted)). The ADA here was preparing for
trial and interviewed a witness, who the Detective identified,
7 The majority asserts that this holding would create a
bright-line rule based on timing, in violation of the Buckley. I
do not suggest, however, that timing alone is dispositive.
Instead, under Buckley, timing remains an important factor
that may be considered in determining the nature of the
function being performed. See Buckley, 509 U.S. at 273-74.
Here, the act of soliciting witness testimony to prove motive at
trial, along with the fact that the solicitation occurred one
month before trial, demonstrate that the ADA’s actions were
performed as an advocate rather than an investigator. This
conclusion is consistent with Buckley’s functional approach.
See id. at 273; see also Fogle, 957 F.3d at 159.

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Page 9 of 11
for presentation to the jury. This is clearly the work of an
advocate.
My colleagues and the District Court rely on our ruling
in Fogle to conclude that the ADA’s actions were investigatory
and not advocacy. Roberts v. Lau, No. 1:21-CV-01140, 2022
WL 2677473 at *2-3 (M.D. Pa. July 11, 2022). In Fogle, we
denied absolute immunity to prosecutors who encouraged or
permitted State Troopers “to fabricate statements from three
jailhouse informants,” even though such conduct occurred
after the initiation of criminal charges. 957 F.3d at 163-64. In
doing so, we explained that the Fogle prosecutors “not only
solicited false statements from jailhouse informants, but
deliberately encouraged the State Troopers to do the same
knowing their evidence was weak.” Id. at 164 (quotations
omitted and cleaned up). Thus, we concluded that the
“prosecutors were functioning not as advocates, but as
investigators seeking to generate evidence in support of a
prosecution.” Id.
Fogle’s reasoning that “generating evidence” to support
a prosecution constitutes an investigative function conflicts
with our earlier cases holding that collecting evidence in
preparation for trial or grand jury proceedings is an advocacy
function. See, e.g., Yarris, 465 F.3d at 139 (concluding
solicitation of false statements was an advocacy function);
Rose, 871 F.2d at 244 (holding that solicitation of testimony
for use in grand jury proceedings “are encompassed within the
preparations necessary to present a case and therefore are
immunized” (quotations and citation omitted)); see also
Buckley, 509 U.S. at 273 (describing “evaluating evidence and
interviewing witnesses as he prepares for trial” as “the
advocate’s role”). Because Yarris and Rose were decided

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Page 10 of 11
before Fogle, they control our analysis. See Pardini v.
Allegheny Intermediate Unit, 524 F.3d 419, 426 (3d Cir. 2008)
(observing that if two precedential “cases conflict, the earlier
is the controlling authority and the latter is ineffective as
precedent[].” (quoting United States v. Rivera, 365 F.3d 213,
213 (3d Cir. 2004))). Applying those cases, the ADA should
be entitled to absolute immunity for his procurement and
presentation of the witness’s testimony.8
Furthermore, even assuming Fogle can be reconciled
with Yarris, this case is more like Yarris than Fogle, and thus
immunity is warranted here. First, like the prosecutors in
Yarris, the complaint clearly states that the ADA solicited the
witness’s statement for the purpose of gathering testimony,
and the temporal proximity to the trial shows this testimony
8 The majority attempts to distinguish Fogle and Yarris
based on the fact that the allegations in Fogle were more
detailed than those in Yarris. However, the majority does not
identify the additional details in Fogle that made the
prosecutors’ actions more investigatory in nature than the
prosecutors’ actions in Yarris. A review of the two cases
reveals that the crux of the allegations regarding the solicitation
of false testimony was nearly identical. Compare Fogle, 957
F.3d at 164 (“Fogle alleges that the Prosecutors not only
solicited false statements from jailhouse informants, but
deliberately encouraged the State Troopers to do the same
knowing their evidence was weak . . . .”), with Yarris, 465 F.3d
at 139 (“[T]he ADAs used a ‘stick and carrot’ treatment to
elicit[] [the] jailhouse informant[‘s]” false testimony”
(quotations omitted)). Thus, the supposed difference in the
amount of detail in the allegations in each case does not
provide a basis for distinguishing them from each other.

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Page 11 of 11
was intended to be used for trial rather than for an investigative
purpose. 9 Second, in Fogle, there was a “long chain of
investigative events led, or supervised, by [the prosecutors]”
both before and after Fogle’s arrest, 957 F.3d at 163, whereas
the complaint here does not allege that the ADA played any
role before Roberts was charged. Thus, based on Yarris, the
ADA’s actions were taken in his capacity as an advocate for
the State in preparation for trial. As a result, the ADA is
entitled to absolute immunity.
While the alleged conduct is serious and of course is not
condoned, the law cloaks the ADA in absolute immunity. I
therefore respectfully dissent.
9 Roberts asserts that Yarris is distinguishable from this
case because “[i]n contrast to the passive conduct of the
prosecutor in obtaining the false statements described in
Yarris, [the ADA here] actively approached [the witness] and
asked him if he ‘wanted a piece’ of the prosecution for the
purpose of fabricating a motive.” Appellee’s Br. at 16. It is
not accurate, however, to characterize the prosecutors’ actions
in Yarris as “passive.” Indeed, the Yarris complaint asserted
that the prosecutors had “used a ‘stick and carrot’ treatment to
elicit [the] false testimony.” 465 F.3d at 139. This is nearly
identical to the allegations here, where the complaint alleges
that the witness agreed to provide a statement “to gain favor
related to hi[s] own pending criminal charges.” App. 52
(Compl. ¶ 87).

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