Fabrication of evidence claim is revived on appeal

The Court of Appeals has reinstated a claim alleging that the police has manufactured evidence against a criminal defendant in the course of a murder investigation. The Second Circuit clarifies that evidence fabrication claims in this jurisdiction will continue to be analyzed as due process violations, notwithstanding a recent Supreme Court ruling that the dissenting judge believed changes the legal standard.

The case is Frost v. New York City Police Dept., issued on November 12. While investigating a murder in the Bronx, police investigators found two witnesses who had implicated plaintiff. But plaintiff alleges that the police had coerced one of these witnesses, Vega, into implicating him. After plaintiff was acquitted at trial, he sued the officers for evidence fabrication, a claim grounded in the due process clause, as the Court of Appeals has held since at least 1997, when it issued Riccuiti v. N.Y.C. Transit Auth., 124 F.3d 123 (2d Cir. 1997). While the police argued that they had an evidentiary basis to prosecute plaintiff even without Vega's coerced statement, the Court of Appeals (Katzmann and Bianco) says that "probable cause is not a defense to a fair trial claim based on the fabrication of evidence" and that "even if a privileged arrest accounted for at least some portion of the deprivation of a Section 1983 plaintiff's liberty, a plaintiff may still suffer a deprivation of liberty as a result of an officer's fabrication." It is therefore irrelevant that "there was sufficient evidence to prosecute Frost without Vega's identification."

While Judge Kearse in dissent states that the coerced identification did not taint the trial, since Vega did not testify at trial, that does not matter, the majority says, because "a criminal defendant's right to a fair trial protects more than the fairness of the trial itself. Indeed, a criminal defendant can bring a fair trial claim even when no trial occurs at all." What matters is that the tainted evidence "would be likely to influence a jury's decision, were that evidence presented to the jury."

The monkey wrench in this case is a 2017 Supreme Court ruling, Manuel v. City of Joliet, 137 S.Ct. 911 (2017), that says a Section 1983 plaintiff can challenge his pretrial detention based on fabricated evidence under the Fourth Amendment even if a judge determines this evidence constitutes probable cause. The argument is that if this is a Fourth Amendment claim, the Fourteenth Amendment due process analysis does not apply, which could lead to a different result in the civil action. The City has been arguing in other cases that Manuel makes it easier to dismiss these cases, including a case that I am handling. But, the majority says, "our precedents establish that a fair trial claim under the Due Process Clause may accrue before the trial itself," which means that Manuel does not preclude this claim.