In Lisker v. Monsue, published March 20, 2015, the 9th Circuit Court of Appeals affirmed denial of the defendant police officers' motion for summary judgment on the ground of absolute witness immunity. After his mother's slaying, the plaintiff told police he saw his mother's body through a sliding glass door, went to his car, retrieved pliers, and entered the house. The defendant detectives' "Murder Book" included an investigation report stating that on the day of the murder, the detectives were unable to see into the house due to sun glare, and that footprints in the mud led only toward the house, not away. Another section of the Murder Book documents that the detectives reproduced the crime scene with a model, and concluded that the plaintiff could not have seen his mother lying on the floor. The detectives testified to similar facts at the preliminary hearing, and one of them testified to them at trial. The plaintiff was convicted and spent 26 years in custody before producing evidence that the glare and footprint evidence was incorrect, and that he would have had an unobstructed view into the house.
The appellate panel concluded that the officers' reports in the Murder Book, and the acts that led to them, were subject only to qualified immunity, not the absolute immunity of witnesses. Absolute witness immunity applies to witnesses' (including police officers') trial testimoy, as well as preparatory activities inextricably tied to testimony, such as conspiracies to testify falsely. But activities such as tampering with evidence or preventing witnesses from coming forward are not subject to the immunity. The reports in the Murder Book and the activities they document are not inextricably tied to the detectives' court testimony.