dissenting: *
We are confronted at the outset by the inescapable facts that defendant Goodwin is a prosecutor and that the indictment made the subject of this civil suit for damages occurred in the courtroom, the native habitat of judges, jurors, prosecutors and witnesses —all of whom having, and from time immemorial having had, absolute immunity from civil suit as essential participants in the judicial process. The normal role of the Prosecutor in the courtroom is as Advocate; his actions are those of a spokesman advocating the cause of his client, the government, state or federal. In this particular case Goodwin perhaps was, for a moment at least, also cast in another role, that of Witness ; his action was to answer a specific question of the court. The plaintiff claims that answer was false, and now sues Goodwin for perjury. Perjury is the act of testifying falsely. It is not the act of “administering” or “investigating” anything.
The majority painstakingly reviews the recent decisions on prosecutorial immunity, particularly Mr. Justice Powell’s opinion for the Supreme Court in Imbler v. Pachtman,1 which accord absolute immunity to the prosecutor, not because of his “official status,”2 but because of “the nature of the official behavior”3 in his role essential to the judicial process. The cases cited universally hold that the prosecutor while functioning as an advocate (and thus as part of the judicial process) is entitled to absolute immunity; they also either hold, or leave open the question as to exactly where the line is to be drawn (as Justice Powell did in Imbler),4 that “administrative” or “investi*199gative” duties of the prosecutor are entitled only to a qualified immunity. The majority opinion agrees.5
Thus the majority finds it necessary to take Goodwin completely outside the role of prosecutor connected with the judicial function. In the face of the undeniable facts of this case — that Goodwin was in the courtroom, before a sitting judge, appearing as counsel of record in a judicial proceeding, actively performing those duties associated with trial advocacy, when he answered a question from the trial judge — the majority finds that his answer to the question was not, in the language of Imbler, an “integral part of the judicial process.”6 The starting point for the majority’s analysis is the statement in Imbler that “We recognize that 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.”7 The Supreme Court goes on to describe what these actions are, and concludes, “At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court." 8
The Court in Imbler thus differentiated between the prosecutor functioning “as an administrator” and “as an officer of the court.” On the former the Court reserved decision as to the immunity accorded; on the latter, when the prosecutor is functioning “as an officer of the court,” the Supreme Court unequivocally held the prosecutor has absolute immunity.9 On the facts of Goodwin’s case, can the majority deny that he was functioning “as an officer of the court”? Goodwin was in the courtroom before the U.S. District Judge as lead counsel for the United States. Could there be a more classic role “as an officer of the court”?
This points up the majority’s startling weakness: There is not one word in Imbler, or in any of the numerous other cases cited by the majority, which describes an action similar to that of Goodwin here as being outside the prosecutor’s (or witness’s) absolute immunity. The only references in Imbler and all the other cases cited talk of “investigative” or “administrative” tasks inherent in the prosecutor’s usual job as being outside absolute immunity.
My colleagues have apparently found no case which cites, by way of holding or dicta, any action by a prosecutor inside the courtroom as being outside his role of prosecutor.10 Goodwin’s actions were not “actions *200preliminary to the initiation of a prosecution,” 11 nor were they “actions apart from the courtroom”;12 he was right in the middle of the courtroom and right in the middle of a grand jury proceeding, the time-honored method for “initiating a prosecution.” 13 The grand jury is an arm of the court. Goodwin was functioning “as an officer of the court.” Goodwin’s “activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force.”14
To my mind Goodwin was a prosecutor functioning “as an officer of the court,” and entitled to the prosecutor’s absolute immunity under Imbler v. Pachtman. Yet it is undeniable that Goodwin was sworn as a witness, for a brief moment took the witness stand, and answered one question. My colleagues hold that after Goodwin took the oath as a witness he was acting as an investigator — a strange conclusion — and, after he took the oath as a witness (in addition to his oaths as attorney and prosecutor) he ceased to be “an officer of the court” — to my mind an equally strange conclusion.
Both of these conclusions are necessary if the majority is to package Goodwin as an “investigator” or “administrator,” for it is only if he can be so labelled that he can be deprived of the absolute immunity of the prosecutor under Imbler and countless other cases. That this is a strained and distorted result should be apparent, as it is so obvious that if Goodwin was not functioning as a prosecutor in his role “as an officer of the court,” then he was functioning as a witness — and each is entitled to absolute immunity.
*201It thus becomes necessary in these opinions to treat both prosecutorial and witness immunity.15 I shall first turn to the absolute immunity of the prosecutor as analyzed and affirmed by the Supreme Court in Imbler v. Pachtman (1976), then to the absolute immunity of the witness. To some extent the discussion must interweave, for both are part of the seamless web of immunity held for centuries to be essential to the functioning of an effective judiciary.
I. PROSECUTORIAL IMMUNITY “AS AN OFFICER OF THE COURT” WHOSE “ACTIVITIES WERE INTIMATELY ASSOCIATED WITH THE JUDICIAL PHASE OF THE CRIMINAL PROCESS”
We are all agreed that Goodwin’s action was taken within the scope of his duty; it is further the case, I submit, that his action involved the exercise of significant discretion.16 He is thus entitled to some sort of *202immunity protection, qualified or absolute. “The procedural difference between the absolute and qualified immunities is important. An absolute immunity defeats the suit at the outset, so long as the official’s actions were within the scope of the immunity. The fate of an official with qualified immunity depends upon the circumstances and motivations of his actions, as established by the evidence at trial.” 17
The decision whether qualified or absolute immunity is appropriate involves a balancing of the interests which would be benefited and impaired by application of either of the two doctrines. The decisions of the Supreme Court which have made this choice have weighed the incremental loss in litigant rights and remedial relief against the enhancement of governmental functioning resulting from the absolute as opposed to the qualified immunity. As a result of this balancing the Court has devised rules of absolute or qualified immunity for various classes of officials, as defined by function.18
Our role in applying these rules, where the Court has devised them, is to make a proper characterization of the function being performed by the official in question. Our role, however, is not to engage in a particularistic rebalancing of all the relevant policies to determine whether absolute or qualified immunity is appropriate in this case. Our analysis instead is functional: was this action undertaken in the prosecutor’s capacity as an officer of the court, or, put another way, a government advocate in a courtroom setting? If this prosecutor should be so characterized, then he is entitled to absolute immunity under Imbler v. Pachtman. In Imbier the Court itself balanced the competing policies and mandated absolute immunity for the prosecutor in his *203role, very broadly conceived, as courtroom advocate.
A. Imbler v. Pachtman — Balancing of the Interests Held to Require Absolute Immunity for the Prosecutor.
In order to make a more informed application of the Imbler rule, it may be helpful to set out the policies which underpin it. While our role, as noted, is not to make a de novo balancing of these policies in this case, an understanding and appreciation of the policies may contribute to a proper characterization of the prosecutor’s protected role under Imbler. At the outset the Imbler Court recognized that § 1983, although it creates a cause of action for deprivation of constitutional rights, does not constitute a flat bar to immunity doctrine,19 and proceeded to consider the other factors, which, under its balancing approach, related to the choice of qualified or absolute immunity.
Recognizing the prosecutor’s absolute immunity at common law from actions for malicious prosecution, the Court found equally applicable to actions under § 1983 the several rationales for this common law immunity.20 Most importantly these included the “concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.”21 The Court noted that these twin hazards of diversion of energies and biasing of decision-making are, for several reasons, especially acute in the case of a prosecutor. Acting as he does under serious constraints of time and information, a prosecutor would “face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials.”22 Further, the sheer number of decisions which a prosecutor must make that “could engender colorable claims of constitutional deprivation” means that a demonstration of good faith in every case “could impose unique and intolerable burdens . . . .”23
The net harm of allowing only a qualified immunity in the performance of prosecutorial functions was not confined, therefore, to the “substantial danger of liability even to honest prosecutors,”24 or even to the expenditure of great time and effort in defending such suits. Most seriously, the denial of absolute immunity would adversely affect “the functioning of the criminal justice system as a whole.” “[TJriers of fact . . . often would be denied relevant evidence” by the creation of a systematic bias in the prosecutor against incriminating evidence of sufficiently uncertain pedigree as to support a colorable cause of action.25 And post-conviction review procedures might well be biased in quite another way, against the convicted person, by “knowledge that a post-trial decision in favor of the accused might result in the prosecutor being called upon to respond in damages for his error or mistaken judgment.”26
As final support for its holding that prosecutors are absolutely immune “in initiating a prosecution and in presenting the State’s case,”27 the Court noted that the unavailability of suit under § 1983 for this category of cases “does not leave the public powerless to deter misconduct or to punish that which occurs” — for “a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers.”28 As a deterrent of even greater weight, *204“[tjhis Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law.”29 Taking all these policies into account, the Court concluded, on balance, that for § 1983 damage suits, as at common law, a prosecutor’s actions “intimately associated with the judicial phase of the criminal process” were entitled to absolute immunity.30
B. Application of Immunity Doctrine to Goodwin.
We thus come to the question of whether defendant Goodwin’s sworn testimony, to the effect that none among the witness group represented by counsel was a Government informant, falls within the absolute prosecutorial immunity from damage actions established by the Supreme Court. As developed in the introduction, it would surely seem on its face that Goodwin’s action during grand jury proceedings in answering a question from the judge in his capacity as lead prosecutor was action taken as an “officer of the court.”31 This was action within his scope of duty which called for the exercise of discretion in its performance, precisely the type of “quasi-judicial” function within the absolute protection of Imbler.32
*205In order to divest Goodwin of his protected prosecutorial function, the majority discusses at length numerous cases contrasting the prosecutor’s advocacy role with his duties related to investigation and administration. By page--of 186 U.S.App.D.C., at p. 21 of 569 F.2d the majority is ready to state:
[W]e believe that appellant’s false statement to the federal district court in Florida is properly characterized as an act of investigation rather than advocacy. . . . [Ajppellant’s alleged perjury bears no relation whatever to the advocate’s role as conceived by the Supreme Court in Imbler.33
Indeed?
This rather extraordinary characterization is not supported by the “investigatory” cases cited by the majority. This characterization, moreover, rests upon a clear misreading of how the Imbler rule should be applied and upon an overly narrow reading of its conception of advocacy. These points will be developed in order below. Finally, as I will explain in more detail in Part I, C, infra, the attempted division of the prosecutor’s function with the grand jury into “investigative” and “advocacy” roles is legally inaccurate and practically unworkable.
1. The characterization of Goodwin’s action as “investigatory” is unprecedented and unjustified.34 As a matter of case law, including all the cases cited by the majority, courts have characterized as “investigatory” those actions outside the courtroom setting where the prosecutor is acting in a capacity akin to the police officer in his efforts, for example, to obtain a confession,35 or to make arrests,36 or to execute a search warrant.37 Indeed, the Imbler Court *206cited to the cases of policemen’s functions, all involving activities apart from the courtroom, to show what it meant by “investigative” activity by prosecutors.38 The majority’s view of this courtroom activity as “investigatory” under Imbler is thus absolutely novel under the case law.
The majority’s characterization, moreover, is not justified by the reasoning of the cases cited by Imbler. In Hampton v. City of Chicago,39 for example, Judge (now Justice) Stevens recognized that since a police officer is entitled to only qualified immunity for his police actions, then a prosecutor performing the functions of a police officer should also be accorded only qualified immunity because “it seems neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.” This concern for symmetry of treatment appears as a critical policy for the majority as well: “Regardless of his official status, a prosecutor functioning primarily as an investigator should be accorded only the qualified immunity typically conferred on other investigative officers.”40
In the instant case, however, a fair application of symmetry calls for absolute immunity for the prosecutor’s courtroom statement. Goodwin need not be given qualified immunity because a policeman, if a witness, would only get qualified immunity; on the contrary, in my view a policeman functioning as a witness in a manner similar to Goodwin would be entitled to absolute immunity. The majority has not cited — and cannot cite — any case in which an official, as a witness, has been denied absolute immunity from a civil damage suit. See Part II, infra. Indeed, if the majority were to afford a policeman, qua witness, absolute immunity but deny it to this prosecutor, giving a similar answer, then Goodwin would be denied absolute immunity solely because of his official status, surely an impermissible result. If a policeman should have absolute immunity here, functioning as a witness, so too should Goodwin, functioning as an officer of the court.
Besides the concern for symmetry of treatment in the performance of similar tasks, the other basic rationale in the “investigatory” cases is that the prosecutor acting like a policeman outside the court should be afforded only qualified immunity because there is no other appropriate way for there to be “judicial surveillance” of this type of executive action. Apton v. Wilson.41 Put the other way, as Judge Leventhal did in Apton, the prosecutor acting 'within the confines of the court is entitled to absolute immunity as a “quasi-judicial officer” because “the circumstances typically provide alternative instruments of the judicial branch to check misconduct — the discretion of the grand jury, the procedures of a trial, and the potential sanction of discipline imposed by the court itself.”42
Judged by the reasoning of Apton, it should seem that Goodwin is clearly entitled to absolute immunity, as his allegedly false statement was made directly under the control of the trial judge, a classic instance of “judicial surveillance.” The majority, however, seeks to distinguish the reasoning of Apton because, it says, the circumstances of this case did not in fact provide for careful scrutiny of Goodwin’s action. See at 193 194 of 186 U.S.App.D.C., at 24 25 of 569 F.2d. To begin with, the language from Apton does not suggest in any way that absolute immunity for a “quasi-judicial officer” should turn on a particularistic inquiry into whether in fact there was a full and fair “judicial surveillance.”43 Instead, *207it is the opportunity and potential for “judicial surveillance” that justifies absolute immunity for prosecutorial activity in a courtroom setting. That the majority is misreading the nature of absolute “quasi-judicial” immunity will become apparent from a close comparison of its rationale with Imbler.
2. Two of the reasons that the majority gives for why absolute immunity is not appropriate in this case are based upon a clear misreading of Imbler. The majority asserts, first of all, that there has yet been no apparent official inquiry into this alleged misbehavior, and, secondly, that the alleged perjury here was insulated from probing examination and jury appraisal. As I will show, these are not material factors under' Imbler, even assuming their accuracy, as to whether this prosecutor was acting as an “officer of the court.”
Consider first the issue of whether there has been any professional or judicial inquiry into Goodwin’s action. In striking the balance in favor of absolute immunity, the Imbler Court44 regarded as significant factors “[the] amenability [of a prosecutor] to professional discipline by an association of his peers” and the possibility as well of “criminal punishment of a prosecutor.” The existence of these checks, the Court emphasized, thus “does not leave the public powerless to deter misconduct or to punish that which occurs.”45 In this case the majority holds that because there has been no professional or judicial inquiry after all this time, it is appropriate to allow an inquiry now in this suit for damages. This outcome • rests on a misunderstanding by the majority about the nature of the Supreme Court’s analysis in Imbler. The Court was weighing the general policies behind absolute as opposed to qualified immunity in order to arrive at the functional rule of absolute immunity for the prosecutor in his role as advocate. By weighing in the balance the amenability of a prosecutor to alternative sanctions, the Court did not mean that the availability of absolute immunity from civil damage suits in each case should turn on a particularistic determination of whether the prosecutor’s act in question had otherwise-been the subject of a disciplinary inquiry. Indeed, the Imbler Court did, in fact, grant absolute immunity to the individual prosecutor, Mr. Richard Pachtman, without anywhere indicating whether he had been subject to disciplinary inquiry in the many years between the trial in 1961 and the Court’s award of absolute immunity in 1976. Similarly, it is immaterial whether Goodwin’s action has in fact been subject to disciplinary review. Rather, what the Imbler Court emphasized is that there had existed the possibility of alternative checks, citing to the relevant sections of the ABA Code of Professional Responsibility and the California Penal Code. So too here, there is no question that there has existed the potential for professional, criminal or judicial inquiry into his action, thus bringing him within the analysis of Imbler.46
As a matter of immunity doctrine, moreover, there is real wisdom in not having the choice between immunities turn on a determination of whether this action in particular was subject to disciplinary review. A fair assessment of this factor may have to involve further proceedings and findings, a possibility which undercuts the purpose of absolute immunity, to provide protection at the outset from trial and liability. In this *208case, for example, it is not altogether clear that there was no apparent official inquiry into the seeming misstatement, as the majority asserts.47 At the criminal trial of appellees, the trial court held an evidentiary hearing before admitting the informant, Poe, as a witness. Based on evidence received at the hearing, and over the objections of appellees that their Fifth Amendment right to Due Process and their Sixth Amendment right to counsel had been violated, the trial court permitted Poe to testify. Was the court’s ruling at all based upon its view that Goodwin’s answer was not perjury or did not violate the Constitution? The record in the criminal case is not before us and so the question must go unanswered.
Yet if the trial court did face there the issue of the alleged perjury — which is very plausible since the appellees here were the defendants there — then the majority may be unfairly and inaccurately assuming that there has been no official inquiry. For a more precise assessment of its assumption, the majority would have to have a remand on this issue, to allow for further proceedings, all this taking place, I repeat, even before the choice of immunities is made. And yet, without a remand — on whether there had been an official inquiry at the criminal trial into the alleged perjury — the majority may be denying Goodwin absolute immunity on the basis of an unfair and inaccurate assumption, as well as one that is immaterial.
Furthermore, the majority overlooks the important possibility that the lack of any official inquiry may itself reflect some oversight by other parties. My thought is that the Department of Justice and the District Judge are well aware of the facts on the merits of this case,48 and that in their opinion the claim of plaintiff Briggs has no merit, hence no action has been taken. It is worth noting also that since the courtroom incident we have had two Presidents and several Attorneys General, of different political persuasions. How does the majority take into account the possible scrutiny by all these people, short of a formal “official inquiry,” and their possible judgment that action against Goodwin was not warranted? If Goodwin is to be denied absolute immunity because nobody has reviewed his alleged misbehavior, then the majority must not totally overlook, as it does, the important possibility that the relevant parties have exercised some oversight and have decided against further inquiry.
The short of it is that it is unwise to make absolute immunity turn on whether there was in fact alternative review of the incident in question. Such an inquiry, as demonstrated by this case, may raise evidentiary and other issues that must be resolved even before the choice of immunities can be made. The greater the number of issues that are injected into this choice, beyond the necessary issues of scope of duty and discretionary act, the more the protection of absolute immunity — the dismissal of a suit at the outset — is eroded. It was thus very appropriate for the Imbler Court not to consider whether that prosecutor had been called to answer for his alleged courtroom misdeeds. We should, and must, follow their example: it is immaterial whether there was ever an “official inquiry” into Goodwin’s alleged perjury.
The other argument of the majority is that because Goodwin’s statement was “insulated]” from appraisal by the jury and further inquiry by the appellees, it is inap*209propriate to accord absolute immunity in this case.49 Once again, this outcome rests upon a misreading of Imbler. As mentioned earlier,50 Justice White in a separate opinion argued that there should be only qualified immunity for the unconstitutional withholding of information from the court. When a prosecutor suppresses evidence, Justice White contended, it is, by definition, not subject to the scrutiny of the judicial process; thus, there is “no way to prevent or correct the constitutional violation.”51 Note the similarity to the majority’s view that absolute immunity is inappropriate here. For example, the majority points out that “appellees and their counsel were required to accept appellant’s representation on faith,”52 which meant, in Justice White’s terms, that there was “no way to prevent or correct the constitutional violation.”53
The short answer to the majority’s view that Goodwin’s “insulat[ed]” answer loses absolute immunity is that the Imbler Court expressly rejected Justice White’s separate view that the total suppression of evidence warranted only qualified immunity.54 Thus, under Imbler it is immaterial to the choice of immunities whether Goodwin’s allegedly false statement during judicial proceedings was not adequately tested by cross-examination or by jury appraisal.
Moreover, viewing this case in terms of the suppression of evidence, the Imbler Court’s rejection of Justice White’s separate approach may be said to settle and control this case. One of the policies justifying absolute prosecutorial immunity is that otherwise “the triers of fact in criminal cases often would be denied relevant evidence.”55 By rejecting Justice White’s view that an unconstitutional withholding should not warrant absolute immunity, the Imbler Court was essentially saying that in all the decisions about presenting evidence to the court the prosecutor would have absolute immunity. This would include decisions to present evidence of dubious reliability as well as decisions not to present particular evidence at all. In these terms, what Goodwin allegedly did, in essence, was decide not to present the court with the evidentiary fact that there was a government informant among the witnesses. Since this decision entailed an element of judgment (giving the framing of the question from the trial court), it is a decision about presenting evidence, in this case from himself as witness and counsel, that is basically the subject of this suit.
Imbler afforded protection for the full range of decisions about presenting — or withholding — evidence. Once again, we should, and must, follow its guidance: it is immaterial whether Goodwin’s decision, to withhold evidence, was shielded from cross-examination, or the other “corrective” aspects of the trial process.
3. Central to the majority’s conclusion denying absolute immunity to this prosecutor is its view that his “alleged perjury bears no relation whatever to the advocate’s role as conceived by the Supreme Court in Imbler.”56 As discussed above, this conclusion disregards whether his alleged perjury bears a relation to his role as an officer of the court (which he may be, even though not an “advocate” in the most narrow sense) under Imbler or to his role as witness, both of which roles are entitled, I submit, to absolute immunity. But even considering solely the advocacy role for the moment, the majority finds no relation to advocacy only by adopting a much more narrow view of the advocate’s role than was *210conceived and applied in Imbler. If the advocate’s role as defined in Imbler and the circumstances of this case are properly understood, Goodwin’s response to the question may fairly be seen as a necessary part of his advocate’s role.
The Imbler Court meant for the advocate’s role to be read very broadly. Not only did Imbler go out of its way to say in dicta that the role extended to “actions preliminary to the initiation of a prosecution and actions apart from the courtroom,” 57 but also in disposing of the case it found actions to be advocacy which, at first glance, appeared more to be investigation. Having already shown that the broad language of the dicta appears to bring his alleged perjury within the ambit of Imbler,58 let us focus here on how the treatment of the precise facts of Imbler also establishes that the action of Goodwin comes within the broad definition of advocacy.
The starting point for the relevant analysis is footnote 32 of Imbler, which discusses seemingly “investigative” activity. Because of the importance of the footnote to following the analysis, it is reproduced in full below in the text. (Costello, a central character in the footnote, was the primary identification witness at the trial of Imbler).59
Both in his complaint in District Court and in his argument to us, petitioner characterizes some of respondent’s actions as “police-related” or investigative. Specifically, he points to a request by respondent of the police during a courtroom recess that they hold off questioning Costello about a pending bad-check charge until after Costello had completed his testimony. Petitioner asserts that this request was an investigative activity because it was a direction to police officers engaged in the investigation of crime. Seen in its proper light, however, respondent’s request of the officers was an effort to control the presentation of his witness’ testimony, a task fairly within his function as an advocate.
The action at issue in the above footnote was the prosecutor’s request of the police that at that time they not question Costello, the prosecution’s witness, about a pending criminal charge. Ordinarily, requests and directions about police interrogation would be considered acts of investigation. However, the prosecutor’s request was deemed an act of advocacy in Imbler because his concern about the interrogation was that it might impair the remainder of Costello’s testimony. Following police interrogation, Costello might be nervous, and a less effective witness. Or after such interrogation, he might become less cooperative as a government witness or even refuse to cooperate at all.
Applying this reasoning to the instant case, it also appears that the act of claimed perjury should be taken as advocacy. Given that the object of the asserted perjury was to avoid disclosing the existence or identity of the government agent, that meant, since the concealment was accomplished, that the agent was able to appear at trial as a witness — and did appear — without his existence or identity known to the defendants beforehand. As a result, the presentation of the witness’s testimony was very likely more effective, much as Costello’s testimony was possibly made more effective due to the postponement of police interrogation. Seen in this light, Goodwin’s act of alleged perjury can be taken as an effort to preserve the more effective use of a witness at trial.60 As in Imbler, Good*211win’s act was even more clearly not removed from the judicial process, being in court, relating to a grand jury proceeding, and should be considered as relating to the other advocacy duties of his grand jury function.
C. The Majority’s Extraordinary Misconception of the Prosecutor’s Role With the Grand Jury
After its discussion of cases making the distinction between the advocacy role of the prosecutor and his sometime “investigative” or “administrative” duties, the majority opinion then develops the argument that Goodwin’s performance of his duties as a prosecutor with the grand jury was in this case, although not necessarily in other instances of his work with the grand jury, properly characterized as “investigative” in nature rather than being connected with his role as an advocate. I respectfully suggest that the entire development of this argument in the majority opinion is founded on a total misapprehension of the relationship of the prosecutor to the grand jury and a misconception of the grand jury’s role itself. The distinctions attempted to be drawn are demonstrably legally incorrect and, to anyone who has ever worked with a grand jury, totally impossible to apply as a matter of practicality.
Since the exposition of the underlying rationale of the majority on this point is spread over several pages, I shall quote certain excerpts so that the majority rationale will be unmistakably clear. “We are aware that earlier cases in which prosecutorial behavior has been termed investigative have involved factual situations distinct from that currently before us. (P. 192 of 186 U.S.App.D.C., p. 23 of 569 F.2d) . [W]e think that, in a real sense, this litigation concerns behavior more plainly investigative than that encountered in some of the earlier cases cited above. (P. 192 of 186 U.S.App.D.C., at p. 23 of 569 F.2d) . The grand jury [in Goodwin’s case] was to function in the first instance as an investigative tool, rather than in its more familiar guise as a deliberative body deciding whether to return indictments for specific crimes on the basis of evidence gathered and presented by a public prosecutor. (P. 193 of 186 U.S.App. D.C., p. 24 of 569 F.2d) ... The ongoing character of the grand jury process in this case helps to convince us that appellant had embarked on what was fundamentally a factfinding mission, and that his false statement to the court, if such it was, was intended to improve the prospects for that endeavor’s success.” (Pp. 193 of 186 U.S.App.D.C., p. 24 of 569 F.2d) (emphasis supplied).
The majority thus tries to divide grand jury functions into “investigative” and “deliberative.” There is that distinction, but the way the majority defines and separates it, it is completely erroneous and misleading here. Let me see if I can dispel the confusion:
1. The grand jury does not have a “more familiar guise as a deliberate body” and another role as “an investigative tool.” The grand jury ALWAYS has both roles of hearing evidence (investigating) and then deciding whether to return an indictment (deliberating).
2. The prosecutor’s only role with the grand jury is during the time that it is hearing evidence, i. e., investigating. His usual duty at that time is to interrogate witnesses, much as he does in the courtroom.
3. The prosecutor never has a role with the grand jury while it is functioning as a “deliberative body.” By law he is excluded, as is everyone else, from the grand jury during this time. Federal Rules of Criminal Procedure 6(d). His presence or assistance to the grand jury during the time it was functioning, in the words of my colleagues, “in its more familiar guise as a deliberative body,” would be grounds for quashing an indictment.
*2124. The majority deprives the prosecutor here of his absolute immunity because he was performing duties with the grand jury which was then functioning “in the first instance as an investigative tool,” but they do not seem to realize that this is the only role for the prosecutor with the grand jury. The majority never presumes to exclude the prosecutor at all times from his absolute immunity when he is working with the grand jury. The opinion tacitly assumes that the prosecutor, when working with the grand jury in what the majority considers his normal prosecutorial functions, is clothed with his usual absolute immunity as a prosecutor, because they recognize a good part of the prosecutor’s duties is in assisting the grand jury, an arm of the court. Certainly in performing this function the prosecutor would, in the language of Imbler, be functioning “as an officer of the court” whose “activities were intimately associated with the judicial phase of the criminal process.” The majority itself states, “The cases collected by appellant hold unanimously that a prosecutor is entitled to absolute immunity for his quasi-judicial activities. After Imbler, this joint is incontestable.” (P. 191 of 186 U.S.Ápp.D.C., at 22 of 569 F.2d.)
5. What the majority is trying to do here is to make a distinction between those cases brought before the grand jury which require very little evidence, or very little original evidence before the grand jury, as the basis of an indictment, and those cases which require a great deal of evidence, some of which may be heard by the prosecutor for the first time. The majority seems to think that, simply because the matters which were to be heard by this particular grand jury in Florida were estimated to require considerable time and perhaps to consist of evidence not hitherto heard by the prosecutor or anyone else, somehow the prosecutor was no longer functioning in his same role. Necessarily, the majority also tries to redraw the line between the grand jury’s roles of hearing evidence (investigation) and deliberation (discussing and voting on indictments). The majority does this by apparently classifying simple cases with short routine presentations of evidence as being “in [the grand jury’s] more familiar guise as a deliberative body deciding whether to return indictments for specific crimes on the basis of evidence gathered and presented by a public prosecutor.” (P. 193 of 186 U.S. App.D.C., p. 24 of 569 F.2d)
6. The attempted split of the prosecutor’s role, depending on how much or how little evidence, and whether he has heard it before or not, is totally erroneous and confusing. The attempted split of the grand jury’s role, between on the one hand complicated cases in which it assists in ferreting out the true facts of the case as well as hearing evidence of which the prosecutor was already aware, and on the other hand cases in which the grand jury functions as a deliberative body, which according to the majority now includes both hearing evidence “gathered and presented by a public prosecutor” and its secret deliberations on evidence in any type of case, is likewise totally erroneous and confusing. The grand jury is never in a “familiar guise as a deliberative body” when it is hearing any evidence — no matter how routine the presentation. Nor is the prosecutor ever assisting the grand jury in its “familiar guise as a deliberative body” — such action, as the majority describes it, would invalidate every indictment.
7. Aside from its misconception of the functions of the grand jury, and its attempt to redraw the line between those functions, now clearly drawn by law, the majority’s idea of dividing the functions of the prosecutor with the grand jury into two separate parts, one apparently his role in a routine case and the other in a more elaborate case requiring original work with the grand jury, is utterly impractical. There is no possible line of distinction to be drawn between different types of cases as the majority apparently thinks there is.
Cases before a grand jury run the gamut from a simple narcotics possession case, which may require only the testimony of the arresting officer, elicited by questions from the prosecutor, after which an indict*213ment is speedily voted while the prosecutor is getting a glass of water at the nearby water cooler, to a very complicated income tax fraud or mail fraud case in which reluctant or fearful witnesses may have declined to talk to federal investigative agents, but do testify before the grand jury under the questioning of the prosecutor — cases that may require weeks and weeks of testimony before the grand jury.
In between are every shade and variation of case in which the advocacy skill of the prosecutor is called upon to assist the grand jury. There is the simple fraud case, in which the witnesses before the grand jury may be only one investigator and three victims defrauded, after whose testimony the prosecutor may inform the jury that ten other fraud victims are available to testify if the jury wishes to hear them, but what they will say has been summarized by the investigator. Then there is the same type case in which one or two witnesses may be reluctant to testify for fear of incriminating themselves. This necessitates not only the presentation of the investigators’ and the victims’ evidence, but perhaps a trip before the district judge to secure a grant of immunity for the witness, and his second appearance before the grand jury, at which time he responds to the prosecutor’s questioning and testifies. Then there are situations in which, although a complete investigation has been done by the regular federal investigative agents, at the last minute before the presentation of evidence to the grand jury the prosecutor learns of an additional witness who could throw light on the case, and he promptly puts this witness before the grand jury without any preliminary questioning by anyone whatsoever.
The examples of different shades of the prosecutor’s questioning, of different degrees of the prosecutor’s assistance to the grand jury, of differing combinations of the routine and the bizarre in the presentation of testimony before the grand jury by the prosecutor, could be multiplied without end. There is absolutely no line which can be drawn to separate the prosecutor’s role in the more routine ease lasting a few minutes from that in which original testimony is heard by the grand jury over a period of weeks, for there is every variation and combination in between. In every case the prosecutor is assisting the grand jury in hearing evidence, the investigative phase of the grand jury’s work. The degree of his assistance is of incalculable variety and description, but in no case — in no case — does the prosecutor assist the grand jury “in its more familiar guise as a deliberative body.”
8. The majority throughout stresses the advocacy function of the prosecutor as that which is entitled to absolute immunity. For example, “[T]he Court . . . reaffirmed its fundamental reliance on the advocate’s role as the source of the absolute prosecutorial immunity applied in Imbler.” (P. 188 of 186 U.S.App.D.C., p. 19 of 569 F.2d) Ironically, for the validity of the majority’s logic, it is precisely in the long, complicated grand jury case, on which the majority here rests its denial of absolute immunity to the prosecutor, that the prosecutor functions most as an advocate, most similar to his role in court. In the utterly routine case, such as the simple narcotics possession mentioned above, the prosecutor may introduce the arresting officer to the grand jury and only ask him one question, “Officer, just tell the grand jury in your own words what happened.” And the officer does so without the necessity of any further interrogation by the prosecutor.
In direct contrast, if the grand jury is engaged in a long and protracted inquiry, in dealing with witnesses who have not been previously examined by investigators, or dealing with witnesses who are recalcitrant, the skills of the advocate in cross-examination, knowledge of what is relevant and irrelevant, his sense of when a witness is concealing something or fabricating — all of these skills of an advocate come into play for the prosecutor in assisting the grand jury, the arm of the court. Strangely, because Goodwin was engaged in assisting the grand jury in such an inquiry, the majority wishes to term his actions “investigative,” and deny him his status as an “advocate” entitled to absolute immunity, which the majority would grant him if he were *214presenting to the grand jury a one gram narcotics possession case!
Surely, the prosecutor is functioning as an officer of the court and in direct relation to the judicial phase of the criminal process in any case in which he works with the grand jury — irrespective of complexity, length of time, number of witnesses, or whether the witnesses have been interviewed before. Yet, most ironically, it is precisely in the type case in which the prosecutor utilizes his talents of advocacy, the type case the majority says the grand jury and Goodwin had here, in which the majority would deny the prosecutor absolute immunity.
9. It is apparent that only if the majority wants to deny all prosecutors absolute immunity for all their work with the grand jury could the majority’s position be logically coherent. And this bold stroke the majority has not essayed.
The true distinction between the prosecutor acting as an officer of the court and his acting in an investigative role is one which the majority opinion does not describe, but which is inherent in the Supreme Court’s opinions in Imbler and in other cases. When the prosecutor examines a witness before the grand jury, whether he asks one question or five hundred, he is functioning as an officer of the court and his activities are intimately associated with the judicial phase of the criminal process. I submit this is undeniable. When the prosecutor goes out to the residence of a potential witness and interrogates him there, then he is functioning in what the majority ought properly to describe as the role of an investigator. On the point reserved in Imbler and on the issue decided in a few eases, then and then only the prosecutor may not have the absolute immunity which clothes his every action as part of the judicial process. When he is interrogating a possible witness outside the courtroom or the grand jury room, then he may be filling the role of a policeman or investigative agent and be clothed with whatever immunity they possess. This we do not need to decide here, any more than the Supreme Court decided the issue in Imbler.
D. The Prosecutor Divested
The rationale of the majority opinion throughout has been, first, to designate the grand jury work on the day the incident occurred in the courtroom as being “investigative” in character and not “deliberative”; secondly, to associate Goodwin with the grand jury acting in its non-deliberative role (assuming that the prosecutor could be associated with the grand jury in its deliberative role!); and then, finally, saying that his response to one question from the judge in the courtroom was in connection with his work with the grand jury, and this grand jury’s task was “investigative,” to deny the prosecutor his absolute immunity.
Four quick points highlight the total lack of precedent for my colleagues’ decision today:
1. No case cited in the 37-page majority opinion ever held that any prosecutor’s action in the courtroom was “investigation” or “administration,” or was entitled to anything less than absolute immunity.
2. The “proper line” drawn in Imbler was between the prosecutor’s responsibilities “as an administrator” and those “as an officer of the court,” and every action of a prosecutor described by the Supreme Court as “administrator or investigative officer” was outside the courtroom and courthouse.
3. The Supreme Court has never held that “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate” 61 are entitled to less than absolute immunity, and the issue was specifically not decided in Imbler.
4. No case cited in the 37-page majority opinion confers anything less than absolute immunity on any person for his statements from the witness stand.
*215Summing up Goodwin’s role as a prosecutor in the incident made the basis of plaintiffs’ suit for perjury: only because Goodwin was lead counsel for the Government in court was he singled out as the person to be asked the question; there was only one question and one answer, made from the witness stand rather than from the counsel table; at the time Goodwin was in the courtroom, before a U.S. district judge, in his prosecutorial advocate’s role as an officer of the court in a hearing connected with a proceeding before the grand jury, an arm of the court. How Goodwin’s role can be considered anything but that “as an officer of the court” or his actions be deemed not “intimately associated with the judicial phase of the criminal process, and thus . functions to which the reasons for absolute immunity apply with full force,”62 is beyond my ready comprehension. But my colleagues assert that for one critical moment Goodwin was transformed in his appearance as a witness into something else, that since the one question had to do with a grand jury “investigation,” he was thereby taken out of the “advocacy” rule of Imbler. Whether that be true or not, yet it seems undeniable that in answering a question under oath Goodwin was also functioning as a witness, another source of absolute immunity to which we now must turn.
II. WITNESS IMMUNITY
A. The Prosecutor-Witness Transformed
The way that the majority divests Goodwin of his absolute immunity as courtroom advocate is by casting him as a courtroom investigator, entitled only to the qualified immunity of the policeman. Let us focus again on the critical passage of the majority opinion:
[W]e believe that appellant’s false statement to the federal district court in Florida is properly characterized as an act of investigation rather than advocacy. . . . [Ajppellant’s alleged perjury bears no relation whatever to the advocate’s role as conceived by the Supreme Court in Imbler.63
If Goodwin departed from his role as an Advocate (and I agree, it is what he is doing not his title as prosecutor which confers immunity), he did so only to become a Witness, and a witness in court likewise has absolute immunity from civil suit. The very suit for damages brought here alleges perjury by Goodwin; perjury is an action peculiarly tied to witnesses; the perjury here is alleged to have occurred in court; perjury has nothing to do with “investigative” or “administrative” activities, which are contemplated by all the cases to occur outside the courtroom. The majority opinion itself grudgingly admits, “Although he was called upon by the court to make a representation of fact in a courtroom after being sworn . . . .”64
Continuing with my colleagues’ own language, they speak of “appellant’s false statement” and “appellant’s alleged perjury.” When they assert such action “bears no relation whatever to the advocate’s role,” they have some reason for the distinction; but perjury certainly bears every relation to the witness’s role!
My colleagues are the victims of their stage props. For almost 20 pages they have been setting the stage with language from various cases distinguishing between the prosecutor’s role as advocate and his other duties, cases which hold or suggest that the *216other duties are not necessarily protected by the prosecutor’s admitted absolute immunity as an advocate. The problem of my colleagues is that these other duties are all described as “investigative,” “administrative,” and of similar nature. There is not one word cited that would exclude anything done by the prosecutor in assistance in the judicial process in court from the protection of absolute immunity. There is, of course, not one word about the prosecutor stepping into the role of witness — another universally held position accorded absolute immunity from civil liability. So, in an effort to take Goodwin’s action outside this protection, when the majority comes to its conclusion, it is necessarily expressed in the magic language of the cases — a “false statement” becomes “an act of investigation rather than advocacy.”
The obligation to disclose, as a sworn witness, information about informants may, in a narrow sense, be “foreign to advocacy,” as the majority suggests,65 but the actions of a witness do not, therefore, automatically become “investigative,” stripped of absolute immunity. For to the extent Goodwin departed the prosecutor’s role at all, it was to become a witness. But whether Goodwin be considered primarily a witness or a prosecutor, how a person performing the role of prosecutor could detach himself from the absolute immunity which that function historically has always enjoyed by the temporary assumption of the role of a witness, when that function in the court’s process has likewise always historically enjoyed an absolute immunity, was beyond my imagination until after reading the majority opinion. Looking at three centuries of decisions granting absolute immunity to both prosecutor and witness, I would have thought that the immunity of the prosecutor was reinforced by the immunity of the witness, not derogated.
The majority, however, manages to divest Goodwin of both immunities. Prosecutorial immunity is lost because Goodwin is characterized, without support from case law, as an “investigator” — although any casual bystander (and perhaps even the trial judge) in that courtroom would have sworn that he had seen a lawyer at work, indeed, a prosecutor functioning as an advocate, and, yes, he had also seen and heard that prosecutor testify briefly. And witness immunity is lost because the majority holds here that absolute witness immunity should never be available in a § 1983 or Bivens -type suit. The consequences of this extraordinary step, a rule of qualified immunity for witnesses adopted for the first time, which clashes directly with the one other precedent from a circuit,66 deserves careful attention before proceeding further.
B. Extraordinary (and Apparently Unforeseen) Consequences of a Qualified Immunity Rule for Witnesses
The first implication is that any and all state and local officials who testify “under color of law” will have no absolute immunity in their capacity as witnesses in suits for damages to constitutional rights under § 1983. For the majority expressly states, “The immunities enjoyed by state officials sued under § 1983 are governed by federal law.”67 Since, in this Bivens -type case, the majority holds that witness immunity is never available for a federal official as a matter of federal law, it follows that state and local officials, who must look to federal law in § 1983 suits, will also be unable in any circumstance to avail themselves of absolute witness immunity. Neither my colleagues nor I can calculate the practical impact of the majority’s rule, but there are undoubtedly countless federal, state and local officials who regularly testify in judicial proceedings who are now stripped of any possible defense of absolute immunity *217in their capacity as witnesses. What the majority leaves for each official is whatever underlying immunity he may have in his original capacity, which, of course, may vary from witness to witness and may vary even within the testimony of a single witness.68
Another implication of the majority’s rejection of absolute witness immunity is that an official who testifies now stands subject to the full range of damage suits for deprivation of constitutional rights. In this case Goodwin is charged with injury to the Sixth Amendment right to counsel due to his alleged perjury. The majority sets no limits on the “constitutional torts” that a witness may be held liable for, now that the absolute immunity qua witness is taken away. Causes of action against a witness for what he said on the stand come readily to mind. As exemplified in the notes below, violations of the Fourth, Fifth and Sixth Amendments, actionable for damages, may well stem from perjury,69 and violations of the First and Fourteenth Amendments, also actionable for damages, may even arise from true statements.70
Once again, neither my colleagues nor I can envision the full practical impact of bringing an increased scope of liability to the witness stand, but the majority’s new rule surely bears implications, only partially *218suggested here, that summon the majority to a much fuller consideration of the witness immunity. Before turning completely to the issue, I note with regret that the majority totally abstains from any consideration of the policies behind witness immunity, only noting that they “do not apply with equal force” when a constitutional violation is alleged.71
C. Absolute Immunity for Witnesses — Supreme Court Precedent, Logic, Policy, and History
In considering whether a witness should be accorded absolute immunity in a Bivenstype suit or any other, it must be emphasized that historically all of the essential participants in the judicial process enjoyed an absolute immunity from civil suit for their words and actions relevant to the judicial proceedings. This included the judge, petit jurors, grand jurors, counsel, and witnesses. Absolute immunity was regarded as essential to each, if justice was to have the full and uninhibited cooperation of those participants whose role was and is absolutely vital to the working of the entire judicial process. As Justice White declared in Imbler,72 “It is essential to the ends of justice that all persons participating in judicial proceedings . . . should enjoy freedom of speech in the discharge of their public duties or in pursuing their rights, without fear of consequences.”
This is not to say that improper conduct in the courtroom or elsewhere by any participant could not then and cannot today be punished. The judge has always been subject to impeachment, prosecution, and disbarment as a lawyer. The prosecutor and defense counsel have always been subject to punishment for contempt, prosecution for any crime such as obstruction of justice, and disbarment.73 Witnesses have always been subject to punishment for contempt, perjury, or possibly obstruction of justice. Criminal penalties likewise have been applied to petit jurors and grand jurors. No immunity protects these persons from criminal prosecution or professional discipline, if anyone should act contrary to law in the performance of his office.
But none of these participants, essential to the functioning of the judicial process, has ever been held to be subject to a civil suit by an allegedly aggrieved party because of anything said or done while functioning in the role of judge, juror, witness, or counsel.
The reasons for the historic common law absolute immunity of these essential participants is obvious on analysis, which will be developed in the following pages. What the majority of this court does in this decision is not just throw open one possibly errant prosecutor to civil liability, but to tear the whole seamless fabric of absolute immunity granted essential participants in the judicial process from time immemorial.
If we were to accept the majority’s rationale here, the impact of the Bivens case and § 1983 on historic common law immunities would be devastating. Fortunately, that is not the way the Supreme Court has gone about its analysis. I can only deduce from it that the witness, particularly a public official as witness, should be accorded the same absolute immunity as the other participants.
It is well established that “§ 1983 is to be read in harmony with general principles of tort immunities rather than in derogation of them.”74 Thus, in deciding which offi*219cial functions should be absolutely protected from suit under § 1983, the Court has generally sought first to determine the status of the common law immunity with regard to that function, then the Court has considered whether the public policy behind the common law rule justifies the same immunity for “constitutional torts.” In a number of instances, the Court has adopted the absolute immunity that had developed at common law: Tenney v. Brandhove75 (legislators); Pierson v. Ray76 (judges); Imbler v. Pachtman, supra (prosecutors). Even though these immunities had initially arisen only with regard to common law torts, the Court preserved them with regard to deprivations of constitutional rights as well. Where the common law had established a qualified immunity for the official, the Court has maintained that standard in the § 1983 actions as well: Pierson v. Ray, supra (policemen); Wood v. Strickland77 (school board members). As in the cases of absolute immunity, the court entered into a fresh appraisal of the competing factors, including, as just mentioned, the nature of the new “constitutional tort.” The fact that the results reached by the Court have generally78 paralleled the judgments of the common law does not mean, of course, that the status of the common law immunity is dispositive, but surely does suggest that the common law, as a starting point of analysis, should not be “overruled” lightly.
The' absolute immunity of the witness at common law is as firmly rooted in history and as widely accepted by the courts as is the absolute common law immunity that was accepted for legislators in Tenney, for judges in Pierson, and for prosecutors in Imbler. Immunities for various participants in the judicial process were already established by courts as early as the sixteenth century,79 and in 1772 Lord Mansfield announced the comprehensive rule: “Neither party, witness, counsel, jury nor *220judge can be put to answer, civilly or criminally for words spoken in office.”80 Accepted as “practically [the] universal rule in this country,”81 this rule of absolute immunity means that a witness in judicial proceedings cannot be held liable in civil damages for injury that ensues from any relevant testimony. Of particular significance is that this rule is also applied as a matter of federal common law,82 which, the majority tells us,83 is an important focus for the formulation of a federal immunity standard. Absolute witness immunity has been carried into the Restatement of Torts84 and has been set out approvingly by the commentators as well.85 It is notable that in Imbler itself Justice White wrote that the need to protect the judicial process at common law meant that absolute immunity “applied to suits against witnesses themselves for delivering false and defamatory testimony.”86
Do the policies that underlie the common law immunity for a witness warrant the continued availability of absolute immunity in § 1983 or Bivens -type -suits? The policy behind the common law reflects a balancing process. In the context of a' defamation suit,87 Judge Hastie expressed the rationale for absolute witness immunity as follows:88
This rule reflects the prevailing common law view that the public interest in freedom of expression by participants in judicial proceedings, uninhibited by any risk of resultant suits for defamation, outweighs the interest of the individual in the protection of his reputation from defamatory impairment in the judicial forum.
The reason for the public interest in the “freedom of expression” of a witness is that the judgment of the judicial process itself, the centerpiece of all judicial immunities, may well be based on the testimony of the witness and the witness, thus, should be fully encouraged to disclose pertinent information. “For a witness,” Justice White states, “this means he must be permitted to testify without fear of being sued if his *221testimony is disbelieved.”89 Full disclosure may be impaired, in other words, if there can be “intimidation” deriving from “the possibility of civil liability.” 90
Set against the value of full freedom for the witness is, as Judge Hastie noted, the possible damage, e. g., to the reputation of others, that may ensue. This danger has its limits, however, because witnesses are, of course, “subject to the control of the trial judge and are subject to contempt citations for misbehavior in the exercise of the privilege and to prosecution for perjury if convicted of knowingly giving false testimony.” 91 Thus, with a deterrent already available against perjury by a witness in the form of criminal sanctions, the common law regarded the additional deterrent of having to defend a civil damage suit as rendering “the risk of self-censorship . too great.”92
In striking the balance in favor of absolute immunity, the common law meant in no way to derogate the duty of the witness to state the facts objectively. Of course, the witness has no discretion to commit perjury, but, to borrow from Learned Hand, it might be “impossible to know whether the claim [of perjury] is well founded until the case has been tried.”93 Such a possibility, Judge Hand concluded (in the context of prosecutorial immunity), could “dampen the ardor”94 of even the person intending to perform truthfully and properly. The witness immunity at common law is apparently so thorough that it makes no exception for an action where the perjury seems, on the face of the complaint, to admit of no ambiguity, such as when a husband of twenty five years testifies, for example, that he has never been married. Even though it might be “monstrous to deny recovery”95 in that ease, the common law is so unwilling to expose the honest witness to any civil risk that it would not allow even that case to go to trial.
The policies underlying common law immunity for a witness justify the availability of absolute immunity for a witness sued in a § 1983 or Bivens -type action. As noted, the common law regarded absolute immunity for the witness as essential to the protection of the integrity of the judicial process. Similarly, each time the Supreme Court in a § 1983 suit has considered the immunities related to the judicial process, the Court has continued the absolute immunity of the common law — for judges in Pierson and for prosecutors in Imbler. Indeed, the Imbler Court strongly suggested, both in the majority and separate opinions, that it would readily extend the full immunity to grand jurors96 and defense counsel.97 The Court’s continued extension of absolute immunity to all the participants in the judicial process, which undeniably includes witnesses, represents a thorough acceptance of the common law policy that the provision of only qualified immunity might inhibit the full disclosure of relevant evidence and impair the judgment of the court. In each instance the common law policy has been assessed as a “compelling” enough justification for the absolute immunity also to be available for constitutional torts.
The majority gives no reason at all, and none appears to me, why a witness should be singled out for less than the full protection afforded all the other participants.98 *222As for other participants, the possibility of civil liability for the witness undoubtedly can be said to provide some “chill” to the full expression of his testimony. Where “the triers of fact in criminal cases often would be denied relevant evidence,”99 as a consequence of the provision of only qualified immunity, the judgment of the court can plainly be said to be impaired. The possibility of this “adverse effect upon the functioning of the criminal justice system” 100 has warranted absolute immunity for other participants in the judicial process and warrants absolute immunity for the witness too.
The witness should not be singled out for less protection than the other participants in the judicial process because, like those participants, he is also subject to other checks on the abuse of his power. Testimony may be excluded from court or tested under cross-examination and through jury scrutiny. The witness himself is subject to the supervision and discipline of the court and may even be indicted and convicted of *223perjury. Following the reasoning of the Imbler Court about prosecutorial immunity,101 it is fair to say that the existence of those other cheeks undermines the argument that the imposition of civil liability is the only way to prevent a witness from inflicting constitutional injury through false testimony.
It is noteworthy that the only other court to consider the liability of a witness in a Bivens -type suit had no hesitation in awarding absolute immunity — Brawer v. Horowitz.102 Noting the need for “fearless” witnesses and the means, other than damage suits, for deterring perjury, Judge Aldisert, writing for a unanimous panel of the Third Circuit, concluded:103
The policy arguments supporting common-law witness immunity obtain equally to immunize a single witness from a Bivens- type action.
This is the holding, and it is good precedent here, despite the majority’s unwillingness to accept it.104 The majority’s notation that the merits of Brawer were reached only by assuming arguendo that the witness was acting under color of law is beside the point, as Brawer’s assumption of state action does not invalidate its documentation and reasoning.105
In addition to the common law policies discussed above and followed in Brawer, there are reasons why the absolute immunity should especially be preserved for the official as witness. Officials who are called as witnesses have duties in addition to the duty to tell the truth in their testimony. To the extent these additional duties are impaired by qualified immunity, that is all the more reason to assure them the full immunities afforded private citizens who have only their duties as witnesses.
Let us take the office of the prosecutor, for example. Suppose as a witness a prosecutor responds to the judge with very definitive but honest answers, but later uncovers evidence that puts into serious doubt the accuracy of his testimony. If he were only afforded qualified immunity, then this warning from Imbler becomes very appropriate: “The possibility of personal liability . could dampen the prosecutor’s exercise of his duty to bring to the attention of the court or of proper officials all significant evidence suggestive of innocence or mitigation.” 106
Other officials are subject to similar duties. An FBI agent, for example, is supposed to reveal to the prosecutor mitigating evidence he unearths. Will th'e FBI agent be chilled in the exercise of this duty because he testified, albeit honestly, to the contrary, and fears a lawsuit for perjury as a witness, defensible only with a qualified immunity? Considerations such as these, left unaddressed by the majority, further tipped the balance towards absolute immunity in Imbler and, as shown, counsel us to provide absolute immunity to officials in their capacity as witnesses.
In sum, the rejection in toto by the majority of an absolute immunity for a witness in a Bivens -type suit amounts to a tearing of the whole seamless fabric of absolute immunity granted the other participants in the judicial process — -judges, prosecutors, defense counsel and jurors. In doing so, the majority clearly fails to engage in a full and reasoned analysis of the common law immunity, as Imbler requires and exemplifies. The majority’s result not only clashes with the one other Circuit holding on witness immunity but, most significantly, undercuts a compelling interest that is at the heart of the judicial process, that is, *224that the integrity of its fact-finding function is best served by providing absolute freedom from civil suit to its participants so as to encourage unintimidated disclosure and expression.
The majority also argues the point that whatever the value of the common law immunity of the witness these policies are “tangential, and essentially irrelevant” to this case because the prosecutor here was not an “ordinary witness.” In attempting to carve out an exception to the absolute immunity of the witness the majority relies, as we shall see, upon a particular reading of immunity doctrine that was clearly rejected in Imbler. Noting that Goodwin did not testify “in the usual sense at a trial or even before grand jurors,” the majority also recites that it was the judge who asked the question and that the opportunity for cross-examination was denied.107 These circumstances demonstrate for the majority, as it said earlier,108 how the statement was thus “insulat[ed]” from examination and appraisal and how, therefore, it warrants only qualified immunity. As I understand this rationale, it goes more fully as follows: one justification for absolute witness immunity is that possible perjury by a witness will be subjected to the “rough-and-tumble” of the trial process — cross-examination, jury scrutiny, and the presentation of conflicting evidence, so that when these corrective elements are lacking, as when cross-examination is foreclosed, the witness is not really an “ordinary” witness for purposes of absolute immunity and may justifiably be accorded only qualified immunity.
In Imbler, however, the majority expressly rejected the argument that absolute immunity for a prosecutor should turn on whether his possible constitutional violation in particular could be corrected through the trial process.109 As explained in more detail earlier,110 Imbler meant for the prosecutor to have absolute immunity even if his constitutional violation had involved the complete suppression of exculpatory evidence, a decision insulated from scrutiny at trial. Similarly with a witness, the provision of absolute immunity should not turn on whether the testimony could be tested for accuracy through cross-examination or whether the substance of the testimony itself amounted to a total suppression of the information sought. Absolute immunity for a witness is meant to ensure an unintimidated opportunity to contribute to the fact-finding of the judicial process; its availability should not depend on how, in a particular case, that opportunity was utilized.111
Such an ad hoc rule, to be applied retroactively, as the majority enunciates here, would be totally devastating to any realistic protection by “absolute” (?) immunity.
The majority’s other argument for finding absolute witness immunity inapplicable is that “[t]he statement assailed here was prompted by, and directly incidental to, appellant’s status as a prosecutor managing and administering an investigation.”112 Since the statement was related to his sta*225tus as an investigator, as the majority sees it, he then is entitled to only a qualified immunity.113 Even accepting the majority’s characterization of Goodwin’s underlying status as an “investigator,” it appears that the majority’s analysis simply begs the question of witness immunity. If a witness is only entitled to the immunity of his underlying status, then the majority is really rejecting absolute witness immunity entirely as a special immunity that attaches to a certain class of participants in the judicial process. A police officer testifying about a search and seizure, for example, may only have a qualified immunity, as a police officer, but that does not mean he is not entitled to absolute immunity, as a witness. If the underlying status is dispositive of the degree of witness immunity, qualified or absolute, then the majority is really saying that there should be no special witness immunity at all.
Thus, its view that Goodwin in this particular case should not have absolute witness immunity is based upon its general position that no witness, qua witness, should be afforded absolute immunity where a “constitutional tort” is involved. And THAT is an idea whose time has not hitherto come in any court. I am not ready for it here.
D. Absolute Counsel Immunity
Still another reason that the 7majority advances for considering witness'" immunity inapt is that, for all practical purposes, Goodwin could readily have given the same answer from the counsel table, “as an officer of the court,”114 as he gave from the witness stand. There should be no difference, the majority contends, in the scope of immunity conferred for the same statement whether the prosecutor is on the witness stand or at the counsel table. With that last general statement I am «/agreement, for the prosecutor from thd counsel table, as “an officer of the court,” is under no less of an obligation to tell the truth than a prosecutor on the witness stand. But the problem with the majority’s conclusion— that the witness here, therefore, should not have absolute immunity — is that there is also an established absolute immunity for all relevant statements made by counsel in court. In other words, if Goodwin had made the same statement from the counsel table rather than from the witness stand, he would have absolute immunity as counsel in a judicial proceeding, even apart from whatever protection is available under Imbler. Goodwin did make the statement in the momentary capacity of a witness, so this dissent has taken up that immunity in some detail, but if the majority wishes to contend that the witness immunity here *226should be the equivalent here of counsel immunity, I am willing to contend as well that absolute counsel immunity would extend to Goodwin's statement from the table, if that had happened instead.
As with judges and witnesses, the common law afforded absolute immunity to action taken by counsel in judicial proceedings. Indeed, as Prosser explains,115 the “privilege covers anything that may be said in relation to the matter at issue, whether it be in the pleadings, in affidavits, or in open court.” In common with the other immunities, absolute counsel immunity was and is based on the policy of protecting the judicial process. And with the other immunities, it is equally as well settled.116 In the context of a § 1983 or Bivens -type suit, this absolute immunity at common law should carry over, even as against constitutional torts, precisely because of the compelling interest, as illustrated by the common law, in protecting the judicial process. I have explained these interests and policies in more detail in my argument earlier that the absolute witness immunity of common law should also be available in § 1983 and Bivens-type suits,117 and need not repeat them here. Suffice it to say that Goodwin would surely have been acting as counsel in the case if the judge had asked him a question during a grand jury proceeding, even apart, of course, from whether he was acting as a prosecutor in the Imbler sense. At common law, as noted, all relevant statements of counsel, be they termed advocacy or investigation, within the confines of the courtroom process were entitled to absolute protection. If counsel immunity is to be carried over for constitutional torts, as would be expected under the unwavering protection afforded the judicial process by the Supreme Court, then there is simply no basis for assuming that Goodwin’s statement, if made from the counsel table instead, would be entitled to only qualified immunity.118
*227III. REVIEWABILITY OF THE WITNESS IMMUNITY ISSUE
While the above concludes my dissent, Judge Robinson and I are of the view that the question of absolute witness immunity is before us for decision at this point under the “collateral order” exception to the final judgment rule of 28 U.S.C. § 1291. Although Judge McGowan’s opinion does set out the basic reasoning for why the collateral order doctrine “may be thought to be present here,” it is necessary for us in the majority on this point to amplify this reasoning in somewhat more detail, not only to provide greater dimension to the summary description presently available but also to respond to the reservations of Judge McGowan in dissent on this point.
As Judge McGowan’s opinion explains in more detail,119 the District Court in this case certified the question of absolute prosecutorial immunity for interlocutory appeal under 28 U.S.C. § 1292(b) but did not so certify the question of absolute witness immunity. For reasons of his own,120 Judge McGowan believes that review of the question of absolute witness immunity should bej declined at this point and should instead await appeal from any final judgment in this action. /
*228In the recent case of Abney v. United States,121 the Court was asked to review the pretrial dismissal of petitioners’ claims that their retrial would violate the Double Jeopardy Clause. The Court accepted review of the pretrial dismissal as it amounted to a “final decision” on the jeopardy claims under the practical construction that had been given that term. See Cohen v. Beneficial Industrial Loan Corp.122 The rights conferred by the Double Jeopardy Clause, the Chief Justice stated for a unanimous Court, would be “significantly undermined” if review of their claims were postponed until after conviction and sentence. “Obviously,” the Chief Justice noted,123 much protection would be lost with postponed review:
[E]ven if the accused is acquitted, or, if convicted has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit (footnote omitted) (emphasis added).
Because the double jeopardy claims met the other requirements of the “collateral order” rule, viz., that the pretrial dismissal had “fully disposed” of the question, and that the question was “collateral,” or separate from the principal issue of the trial (guilt or innocence), the Court considered the pretrial orders as “final decisions” and proceeded to review them.
The analogy between Abney and the instant case is close and striking. As with the Double Jeopardy Clause, the purpose behind absolute immunity is as much to protect the relevant persons from a trial on their actions as it is to protect them from the outcome of trial. In the classic statement of Judge Learned Hand:124
The justification for [absolute immunity] is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.
To wait until after the trial for the appellate review of claims of absolute immunity subverts a basic rationale of the doctrine, as Judge Hand has set it out, that is, to prevent the chilling of the free exercise of discretion by not subjecting an official in the protected capacity to a trial for damages on his action.
Judge McGowan responds that interlocutory review nevertheless is inappropriate on this absolute immunity question because the question is preserved in the record and will be available for review upon appeal of any final judgment in the action. This is literally true, of course, but for that matter, so would the double jeopardy claim in Abney have been preserved in the record for review from conviction and sentence. Instead, however, the Abney Court inquired into whether the relevant rights that were the subject of the pretrial order would be “significantly undermined” if appellate review had to await final action in the case. Applying this inquiry here, it is clear — and Judge McGowan does not contest the point — that the full protection of absolute immunity would be irreparably lost if review had to await final judgment.125 To paraphrase Abney, even if the defendant here is held not liable in damages, or, if held liable, has his liability ultimately reversed on absolute witness immunity *229grounds, “he has still been forced to endure a trial that the [doctrine of absolute immunity] was designed to prohibit.”
As his second objection to interlocutory review of absolute witness immunity, Judge McGowan contends that because the District Court declined to certify this question under 28 U.S.C. § 1292(b) the collateral order doctrine should not be invoked “as a vehicle for appellate revision of the essential determination committed by Congress to the District Court.”126 I would agree with Judge McGowan that in the Interlocutory Appeals Act of 1958 Congress meant to make unreviewable the decisions of the District Court about whether to certify a question for interlocutory appeal.127 However, I submit that a refusal to certify an order for appeal under § 1292(b) has not necessarily been read, and should not necessarily be read as forever foreclosing that order from interlocutory appeal by another route.
Imagine, for example, if the petitioners in Abney had sought (as they did not) certification of their double jeopardy claims from the trial court and had been denied it. I agree that there could be no review of the denial of certification, e. g., for abuse of discretion, but I cannot agree that on that account there could be no interlocutory review through another means of the double jeopardy claims. Indeed, the authority cited by Judge McGowan takes the view that the denial of § 1292(b) certification should not be read so harshly. Speaking of the developing doctrine of “supervisory” mandamus, Professor Moore notes: “If a § 1292(b) certificate is sought and denied, mandamus will then lie in an appropriate case, not to compel issuance of the certificate, but to review the order for which the certificate was sought.”128 The Supreme Court has instructed us that interlocutory review by “supervisory” mandamus of non-final orders may be “necessary to proper judicial administration in the federal system.” 129 When the circumstances require that “supervisory” mandamus be exercised, mandamus of the underlying order should not be barred solely because the trial court refused to certify it. For, as another commentator suggested,
[Section] 1292(b) does not obviate the need for advisory mandamus. [Certification is limited by the discretion of the district judge; while enlightened judges may well see the necessity of rapid determination of a difficult problem, the policies favoring mandamus should not be bent to the will of individual district court judges.130
Similarly, when the policies behind the collateral order doctrine call for the interlocutory appeal of a “final” pretrial order, those policies favoring immediate review, as in the Abney situation, for example, should not be bent to the will of individual district court judges. Since the discretion of the trial judge whether to certify is itself unreviewable, the value of immediate review in the “small class” of cases where it is warranted under the collateral order doctrine could be irretrievably lost if Judge McGowan’s view, that denial of certification per se bars interlocutory review, were to prevail.
*230CONCLUSION
In summary, the errors and misconceptions of the majority opinion are:
1. The underlying principles of Imbler v. Pachtman in granting absolute immunity to the prosecutor there must be applied to Goodwin here. If this is done, the Supreme Court’s principles compel the same absolute immunity for this prosecutor. Efforts to distinguish Imbler are based upon factors that are immaterial under the very terms of Imbler and are inappropriate for the doctrine of quasi-judicial immunity.
2. The majority has engaged in a particularistic inquiry here, as to the duties at a single moment of this particular prosecutor in these particular circumstances. All the Supreme Court decisions on immunity show the Court applying a balancing test, with reference to common law precedent, on broad categories of public officials to determine the immunity appropriate.
3. The majority has sought to draw a line between the prosecutor as an advocate before the court or with the grand jury in its “deliberative” function, and the prosecutor with the grand jury in its “investigative” function. The prosecutor’s duties with the grand jury cannot be so divided, legally or practically, and the majority has not been so bold as to claim that the prosecutor is deprived of his absolute immunity at all times when he steps from the courtroom into the grand jury room.
4. Even apart from how his relation to the grand jury is characterized, it is undeniable that Goodwin’s statement was made as a sworn witness in a judicial proceeding, a function which itself is a source of absolute immunity.
In summary, these are the unfortunate consequences which will flow from the majority’s decision:
1.The time-honored absolute quasi-judicial immunity of the prosecutor (and other counsel) in every courtroom situation will be replaced by a qualified immunity in every situation, in or out of the courtroom. For under the particularistic analysis of the majority opinion, it will always be possible to contend that what the lawyer did under those particular circumstances was entitled only to a qualified immunity. Thus, counsel will be effectively subjected to harassing suits, as Goodwin has been here, until the highest court available finally determines whether absolute or qualified immunity applies. This illustrates the vast practical difference between absolute and qualified immunity, pointed out by Mr. Justice Powell in Imbler.
2. The number of instances in which counsel, especially prosecutors, are called to the witness stand will take a quantum leap. Now so rare an occurrence that all our research has not been able to find an appellate case similar to Goodwin’s, in the future defense lawyers will be unable to resist the temptation to call the prosecutor to the stand, to force him to hedge or qualify the government position on some important point, at all times with the threat of a possible subsequent civil suit hanging over him if he does not do so. Trial judges can curb this only at the risk of giving the defense another arguable point on appeal.
3. All witness immunity as such is struck down. Now, under the majority opinion, all immunity relating to testimony will be determined by the witness’ function (not even his regular duties or position), considered in the particular circumstances of the individual case. This brings into contemplation a nightmare of inconsistent variable rules and applications.
4. All of the above represents a deadly blow at nearly all the common-law recognized quasi-judicial absolute immunities— prosecutor, counsel and witness. Jurors, and then judges, will doubtless be next.
For all these reasons, and for those more fully set out in my opinion earlier, I must respectfully dissent.
OUTLINE
Page
Introduction_________________________ 29
I. Prosecutorial Immunity “As An Officer of the Court” Whose “Activities Were Intimately Associated With the Judicial Phase of the Criminal Process.” Introduction___________ 32
A. Imbler v. Pachtman — Balancing of the Interests Held to Require Absolute Immunity for the Prosecutor ______________________ 34
B. Application of Immunity Doctrine to Goodwin_____________ 35
C. The Majority’s Extraordinary Misconception of the Prosecutor’s Role With the Grand Jury 42
D. The Prosecutor Divested______ 45
II. Witness Immunity_______________ 46
A. The Prosecutor-Witness Transformed _____________________ 46
B. Extraordinary (and Apparently Unforeseen) Consequences of a Qualified Immunity Rule for Witnesses___________________ 47
C. Absolute Immunity for Witnesses — Supreme Court Precedent, Logic, Policy, and History 49
D. Absolute Immunity for Counsel 56
III. Reviewability of Witness Immunity Issue---------------------------- 58
Conclusion__________________________ 61
. 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).
. At 190 of 186 U.S.App.D.C., at 21 of 569 F.2d.
. Ibid.
. Imbler, supra at 430-31 and n. 33, 96 S.Ct. 984.
. At 188, 190 of 186 U.S.App.D.C., at 19, 21 of 569 F.2d.
. Imbler, supra at 430, 96 S.Ct. at 995.
. Id. at 431 n. 33, 96 S.Ct. at 995. (Emphasis added.)
. Ibid. (Emphasis added.)
. The Court’s holding was thus explicitly delineated:
We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate. We hold that in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under § 1983.
Imbler, supra at 430- 31, 96 S.Ct. at 995. (Emphasis added.)
. I cannot understand the majority’s interjection of the thought: “Lest his stress on the advocacy function suggest that the Court was contemplating a mechanical immunity test based solely upon whether alleged prosecutorial misconduct occurred in court during the course of a trial, Justice Powell added a few words of elaboration in the margin.” At 188 of 186 U.S.App.D.C., at 19 of 569 F.2d. The few words are the Court’s footnote 33. If the reader here will go back to 188 of 186 U.S.App. D.C., at 19 of 569 F.2d, and read the Supreme Court’s language again, he will find that every reference to prosecutorial activity which is deemed within absolute immunity, is to activity outside the courtroom.
There is no reference to prosecutorial activity inside the courtroom which is deemed outside the advocate’s role and thus outside absolute immunity. If Justice Powell, writing for the Court, had wanted to make the point my colleagues try to make, surely he would have given at least one example of prosecutorial activity inside the courtroom which the Court considered might be outside the advocate’s role *200and thus not entitled to absolute immunity. But he did not because he had in mind no such theory, because he was making the point, and this only, that the prosecutor’s advocacy role properly embraced activity both inside and outside the courtroom; there was absolutely no inference that in his activity inside the courtroom he could be characterized as “an administrator or investigative officer.”
Thus, from note 33 alone of the Supreme Court’s opinion we might draw a conclusion directly contrary to that of- the majority, a conclusion fatal to its attempt to label Goodwin’s reply or testimony as “an act of investigation” devoid of any character of either advocacy or witness.
The majority’s reading of note 33, that it implies that some actions of a prosecutor during judicial proceedings are nonetheless outside absolute immunity, is further undercut by the Imbler Court’s disposition of the separate view that Justice White advanced. According to Justice White, absolute immunity was justified for charges of use by a prosecutor of perjured testimony but not for charges of suppression by a prosecutor of exculpatory information. In specifically disagreeing with Justice White’s view, the Imbler majority rejected this opportunity to acknowledge that particular courtroom conduct by a prosecutor might be accorded only qualified immunity, contending, inter alia, that, “the distinction is not susceptible of practical application.” Imbler, supra at 431 n. 34, 96 S.Ct. at 995. This rejection is the rejection of the theory relied on by the majority (p. 194 of 186 U.S.App.D.C., at 25 of 569 F.2d) that absolute immunity should be denied prosecutor or witness where his conduct is such that its validity cannot be tested under the adversary process of the courtroom.
. Imbler, supra at 431 n. 33, 96 S.Ct. at 995. The majority contends, to the contrary, that at the time of the alleged perjury Goodwin and the grand jury were not engaged in “the initiation of a prosecution,” ibid. According to the majority, the grand jury here was not functioning in its “familiar guise as a deliberative body deciding whether to return indictments for specific crimes on the basis of evidence gathered and presented by a public prosecutor.” At 193 of 186 U.S.App.D.C., at 24 of 569 F.2d. If that was so, how does the majority begin to explain the fact that on the same day as Goodwin’s alleged perjury, 13 July 1972, the grand jury returned indictments against six of the appellees, charging them “with a variety of crimes centering around an alleged conspiracy to unlawfully disrupt the 1972 Republican National Convention”? At 183 of 186 U.S.App. D.C., at 14 of 569 F.2d. The more logical inference to draw from the fact that Goodwin’s alleged perjury took place on the same day as the return of the indictments is that Goodwin at that time was engaged in “the initiation of a prosecution.”
. Imbler, supra at 431 n. 33, 96 S.Ct. 984.
. Imbler, supra at 431, quoted in note 9, 96 S.Ct. 984, supra.
. Imbler, supra at 430, 96 S.Ct. at 995.
. The majority opinion (pp. 194 of 186 U.S.App.D.C., p. 25 of 569 F.2d) explains the procedural situation. Both prosecutorial and witness immunity were raised and briefed below. See also Part III, infra.
. We are in accord in rejecting the rationale of the trial court, that the action of responding to the court’s question was not within the scope of his duty. At 184-185 of 186 U.S.App.D.C., at 15-16 of 569 F.2d. However, the opinion for the majority describes an alternative ground for the decision not to confer absolute immunity in this case, namely, that Goodwin’s answer to the judge’s question can be considered a nondiscretionary action. See at 184-185 of 186 U.S.App.D.C., n. 6, at 15 16 of 569 F.2d. Although it is unclear whether my colleagues are adopting this contention as a basis for their decision, it does call for some careful consideration, as it can, under the case law, be taken as an alternative ground for their holding.
Two of the traditional conditions for any immunity, qualified or absolute, have been that the officer was acting within the scope of his authority and that the action undertaken was of a discretionary nature. After reversing the District Court’s conclusion that Goodwin’s statement was outside the scope of his authority, the majority turns in its note seven to the question of whether the statement was discretionary in nature. With respect to the continued relevance of this question, the majority states:
Recent Supreme Court decisions have generally avoided the “ministerial-discretionary” language in favor of analysis focusing directly on the need for differing levels of protection in connection with different official functions, the performance of which has given rise to damage claims. See, e. g., Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); and Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
With this statement, 1 understand the majority to mean that the question of whether an action is discretionary in nature is essentially irrelevant to the immunity issue and that it will seek to determine the applicability of Imbler in this case regardless of how the act is characterized. Having suggested that, the majority nonetheless characterizes the action as nondiscretionary:
However, we note in passing that under a more traditional approach, appellant’s act of answering a single inquiry from the court, an inquiry which plainly called for a simple affirmative or negative response, might well have been classified as a ministerial, rather than a discretionary, act, and thus accorded at best a qualified immunity.
If the majority errs in considering the “ministerial-discretionary” distinction to be outdated, the statement above becomes of critical importance because, as the majority notes, according to this traditional distinction, a nondiscretionary action is entitled to “at best a qualified immunity.”
My disagreement with the majority’s argumentation is twofold: first, I believe that under the recent Supreme Court decisions the question of whether an action is discretionary in nature is still a material determination for purposes of immunity, and second, I believe that on the basis of this record the statement of Goodwin did involve the performance of a discretionary act.
1. As to the first point, I submit that the language of recent decisions does not indicate an abandonment of the traditional approach. On the contrary, for example, in both Imbler, supra, 424 U.S. at 426, 96 S.Ct. 984, and Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), the Court expressly speaks of the need to protect the exercise of officials’ discretion in justifying the provision of immunity. And in a recent case not cited by the majority, Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), the Court evidenced by its holding and its analysis that the presence of discretion in the action undertaken is still material to the provision of immunity.
The relevant question in Doe was whether the Public Printer and the Superintendent of Documents were entitled to absolute immunity as federal officials under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), for their part in printing and distributing a Congressional report containing material which *202was said to invade the privacy rights of various District of Columbia school children. The Supreme Court looked first at the statutory duties of these officials and found that they had acted within the scope of their authority. See Doe, supra, 412 U.S. at 321-22, 93 S.Ct. 2018. But the Court stated that the inquiry went beyond authorization, and, finding no discretion on the part of the Printer and the Superintendent in deciding whether to print or to distribute the report, Doe, supra at 323, 93 S.Ct. 2018, the Court held unavailable the absolute immunity for federal officials of Barr v. Matteo.
In short, then, as far as the absolute immunity of Barr was concerned, it was lost, simply enough, because the action undertaken was “ministerial,” or involved the exercise of no discretion. Having no independent immunity under Barr, the Printer and the Superintendent were left with whatever immunity would derive under the Speech or Debate Clause from the Congressmen who directed their action. On remand, after further findings, the Printer and the Superintendent were given absolute immunity because the Congressmen, at whose direction they acted, would have had absolute immunity had they themselves made copies of the material and distributed them in like manner. Doe v. McMillan, 185 U.S.App.D.C. 48, 566 F.2d 713 (1977).
As noted, the majority opinion does not cite or discuss Doe in relation to its proposition. The majority may believe that it would be a “salutary” development to abandon the “discretionary” distinction as a material element, but the Supreme Court cases on the personal immunity of officials do not, I believe, establish an abandonment of the traditional approach.
2. Having set out my own view that the “ministerial-discretionary” distinction is still material to the official immunity doctrine, it remains to determine the nature of Goodwin’s action here. The majority’s view is that his “act of answering a single inquiry from the court, an inquiry which plainly called for a simple affirmative or negative response” ought to be considered a “ministerial” act, involving the exercise of no discretion. I would disagree: Goodwin’s decision as to precisely how the question should be answered did entail an element of judgment, thus making his action discretionary for purposes of official immunity.
As outlined in note 32, infra, there may be a basis in the record for a belief by Goodwin that the FBI agent was not represented by counsel, thus taking him out of the judge’s question as it was phrased. Fairly taking into account the possibility of that belief, there is clearly injected an element of judgment in the answer. Of course, I am expressing no view of the reasonableness of this possible belief by Goodwin, but I am saying that with the real possibility of this belief — which then allowed for a choice among answers — that Goodwin’s testimony, like the usual testimony, was discretionary in nature. As an exercise of discretion, this action within his authority is thus entitled to absolute immunity, for this prosecutor was acting in his capacity as officer of the court, and, indeed, as a witness.
. Imbler, supra, 424 U.S. at 419 n. 13, 96 S.Ct. at 989.
. See, e. g., Wood v. Strickland, supra, 420 U.S. at 322, 95 S.Ct. 992 (school board member acting in the “context of school discipline”— qualified immunity): Imbler v. Pachtman, supra, 424 U.S. at 431, 96 S.Ct. 984 (prosecutor as advocate in the judicial process — absolute immunity).
. Imbler, supra, 424 U.S. at 417, 96 S.Ct. 984.
. Id. at 424, 96 S.Ct. 984.
. Id. at 423, 96 S.Ct. at 991.
. Id. at 425, 96 S.Ct. at 992.
. Id. at 425-26, 96 S.Ct. at 993.
. Id. at 425, 96 S.Ct. at 992.
. Id. at 426, 96 S.Ct. 984.
. Id. at 427, 96 S.Ct. at 993. The Court indicates in a footnote that the possibility of personal liability could also dampen the prosecutor’s exercise of his duty to expose “all significant evidence suggestive of innocence or mitigation.” Id. at 427 n. 25, 96 S.Ct. at 993.
. Id. at 431, 96 S.Ct. at 995.
. Id. at 429, 96 S.Ct. at 994.
. Ibid.
. Id. at 430, 96 S.Ct. at 995.
. I regard it as clear beyond peradventure that the grand jury character of the proceeding does not itself exclude applicability of the immunity recognized in Imbler. Those proceedings are a vital and customary part of the prosecutor’s job, potentially raising all of the considerations calling for immunity which the Imbler Court considered. See Cawley v. Warren, 216 F.2d 74 (7th Cir. 1954).
Nor does the subject matter of the testimony, relating as it does to the on-going investigation, render Goodwin’s action non-prosecutorial. It is not the content of a given statement, but the context and capacity in which it is made, that determines whether it is within the prosecutorial function. The fact that Goodwin was called to testify in his capacity as head prosecutor leads me to conclude that he was performing within his prosecutorial duties as an officer of the court.
. According to the majority, however, Goodwin’s act of testimony did not involve the exercise of discretion. At 184-185 of 186 U.S.App. D.C., n. 6 at 15-16 of 569 F.2d. See n. 16 supra. This characterization is unrealistic. The act of testifying, while compulsory in the sense that one in Goodwin’s position cannot freely decline to answer the judge’s inquiries, is nonetheless discretionary in that substantial judgment determines the nature of the testimony given. From the perspective of a questioned party, whose knowledge and certainty on the point of interest may be great or small, few inquiries can be said to have but a single honest and correct answer. Discretion and choice determine how best to respond, in view of the precise framing of the question and the state of the witness’s knowledge.
Goodwin’s answer indicates that it was no exception to the usual discretionary nature of witness testimony. The question from the trial judge was:
Mr. Goodwin, are any of these witnesses represented by counsel agents or informants of the United States of America?
The answer of Goodwin, the witness, was:
No, Your Honor.
Let us focus, for example, on one phrase in the question — “represented by counsel.” As the question is framed, it calls for disclosure of the existence of any agent among the witnesses only if that agent is “represented by counsel.” If Goodwin believed that the U.S. agent, Emerson Poe, was not represented by counsel, then he obviously had room for judgment about how to answer the question. His answer could have been an unelaborated “no,” (as it was), or a “no” with his assumption or qualification attached. Or his answer could even have been itself a question for the judge or counsel about •the status of Poe. To see the possibilities of valid answers which did exist, let us look at the record information available to Goodwin.
On the day before Goodwin was asked his question, counsel for the Vietnam Veterans Against the War/Winter Soldier Organization members orally read in court the names of eighteen potential witnesses who were the subjects of their concern. See Transcript at 15, Appellants’ Appendix (App.) at 21. Then the counsel began to identify which potential witnesses were represented by which counsel. Counsel did this by stating the name of the potential witness, followed by the name or names of the counsel representing him. Thus, in the selection below, for example, Mr. Mahoney is represented by Mr. Broege. What follows is the court proceeding as this related to Poe, the U.S. agent. Levine and Peterson are counsel for the WAW/WSO members; Stafford is the U.S. Attorney at the time. Transcript at 17, App., at 23.
MR. LEVINE:
Mr. Mahoney, Mr. Broege.
*205Mr. Camile, Miss Judy Peterson, and I have just been informed that Mr. Poe, who I believe originally was not represented by counsel—
MISS DORIS PETERSON:
Just for the Sixth Amendment motion that Your Honor ruled on the other day.
MR. LEVINE:
Now, many of these witnesses — I am sorry. Mr. Reif and Doris Peterson.
MR. STAFFORD:
Was this Poe?
MR. LEVINE:
I would ask other counsel if they have any corrections.
Especially read in light of the “[cjonsiderable confusion attendant upon] the commencement of the grand jury proceeding,” At 182 of 186 U.S.App.D.C., at 13 of 569 F.2d, it can fairly be said that the selection above also suggests some confusion on this issue as well. Levine and Peterson recite that Poe was not represented at an earlier point. Then, after interruption, Levine lists two names of counsel. And to Stafford’s question, apparently whether these counsel represent Poe, there was no answer. The reason for setting out this exchange, I must emphasize, is not to assert that Goodwin does have a good-faith defense, for that remains for determination at trial. My purpose rather is to show that with some evident ambiguity about the representation of Poe, Goodwin was required to use an element of judgment.— and thus discretion — in answering the question the next day.
It is, of course, no rebuttal that defendant is alleged to have given an incorrect answer in denying the presence of an informant. As noted above, the very point of immunity doctrine is to protect officials, and their exercise of discretion, against just such accusations of wrongful conduct which, absent immunity, might state a good cause of action. Nor does the simplicity of Goodwin’s negative response to the inquiry (“No”) render his testimony ministerial. Any question seeming to call for a yes or no response may always, in the judicial context, be answered in a qualified manner. Goodwin’s decision as to precisely how the question should be answered involved a significant exercise of judgment. Whether the judgment thus displayed was good or poor is precisely the issue that the immunity doctrine prevents us from reaching.
. At 190 of 186 U.S.App.D.C., at 21 of 569 F.2d (emphasis added).
. My colleagues do admit the logical weakness of their position by confessing, “To some extent, of course, assignment of a particular incident to one of several mutually exclusive abstract categories is likely to involve an element of arbitrariness, especially where the incident in question was clearly not envisioned by those who originally devised the classificatory scheme." At 190 of 186 U.S.App.D.C., at 21 of 569 F.2d.
. Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965).
. Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974).
. Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973).
. See Imbler, supra, 424 U.S. at 430 n. 31, 96 S.Ct. 984, citing, among others, Robichaud, supra and Hampton, supra.
. Hampton, supra at 608, quoting Robichaud, supra at 536 37.
. At 190 of 186 U.S.App.D.C. at 21 of 569 F.2d.
. Apton, supra, 165 U.S.App.D.C. at 33, 506 F.2d at 94.
. Ibid.
. Apton mentioned that the circumstances of courtroom activity by a prosecutor “typically” provided, for example, “the potential sanction of discipline imposed by the court itself.” Ibid. (emphasis added). The choice of the word— *207“potential” — suggests that it is the opportunity for judicial sanction as an alternative deterrent to civil suits which is critical and not whether that possibility and opportunity are, in fact, used.
. Imbler, supra, 424 U.S. at 429, 96 S.Ct. at 994.
. Ibid
. See Disciplinary Rule 1 102 Misconduct (A) A lawyer shall not:
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
American Bar Association, Code of Professional Responsibility 3 (1959).
. At 193 of 186 U.S.App.D.C., at 24 of 569 F.2d.
. Without in any way diminishing my reliance on the doctrine of absolute immunity, in fairness to defendant Goodwin (and as Mr. Justice Holmes did in Alzua v. Johnson, 231 U.S. 106, 34 S.Ct. 27, 58 L.Ed. 142 (1913)), I might say that the record hints that defendant could have a defense on the merits if he were put to trial. It is claimed that in the Florida trial the defense lawyers’ proffer of whom they represented at the time of the grand jury proceeding was far from clear, that the FBI informant was not represented for an earlier motion, and that the present defendant (then prosecutor) Goodwin’s brief, unelaborated upon reply to the court’s question was justified. See also nn. 16 and 32, supra.
On the merits of this we of course can express no opinion.
. Al 194 of 186 U.S.App.D.C., at 25 of 569 F.2d.
. See n. 10 supra.
. Imbler, supra, 424 U.S. at 441 45, 96 S.Ct. at 1001 (White, J., concurring in the judgment).
. At 19.3 of 186 U.S.App.D.C., at 24 of 569 F.2d.
. Imbler, supra at 443, 96 S.Ct. at 1001 (White, J.).
. Imbler, supra at 431-32 n. 34, 96 S.Ct. 984 (Powell, J., opinion of the Court).
. Id. at 426, 96 S.Ct. at 993.
. At 190 of 186 U.S.App.D.C., at 21 of 569 F.2d.
. Imbler, supra, 424 U.S. at 431 n. 33, 96 S.Ct. at 995.
. Supra n. 10.
. Imbler, supra at 430 n. 32, 96 S.Ct. at 995.
. Poe testified at the jury trial on 20 August 1973. The .lencks Act material, revealing his existence, was made available on 17 August 1973. The same day as the disclosure, 17 August, the trial court held an evidentiary hearing to determine the relationship maintained by Poe with defendants and counsel during and after the July 1972 grand jury proceedings. Based on evidence received at the hearing, and over the objections of the defendants in Briggs *211that their Fifth Amendment right to Due Process and Sixth Amendment right to counsel had been violated, the trial court permitted Poe to testify. Brief for Appellant at 8 n. 6.
. Imbler, supra, 424 U.S. at 430-31, 96 S.Ct. at 995.
.Id. at 430, 96 S.Ct. at 995. The policies behind immunity in civil damage suits have not been thought relevant in suits seeking injunctive relief. E. g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Dombrowski v. Pfíster, 380 U.S. 479, 88 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). While only some of the cases in this line have found injunctive relief against prosecuting officials to be appropriate, the question of the officials’ immunity has not been a relevant restraint. With the majority, at 184 of 186 U.S.App.D.C., at 15 of 569 F.2d, n. 4, i agree that the question of equitable relief should be left with the District Court for further consideration.
. At 190 of 186 U.S.App.D.C., at 21 of 569 F.2d (emphasis added).
. At 195 of 186 U.S.App.D.C., at 26 of 569 F.2d.
. At 190 of 186 U.S.App.D.C., at 21 of 569 F.2d.
. Brawer v. Horowitz, 535 F.2d 830 (3rd Cir. 1976) (absolute witness immunity available in a Bivens -type suit).
.At 186 of 186 U.S.App.D.C., at 17 of 569 F.2d n. 8.
.Thus, one witness may have absolute immunity if he testifies about actions or events arising from a capacity that is accorded full protection, like a judge or grand juror, while another witness may not have absolute immunity if he testifies about actions or events arising from a capacity that is given qualified protection, like a police officer. For some witnesses absolute immunity may attach to some of their testimony but only qualified immunity to the rest, with the immunities switching back and forth in the course of the overall testimony.
The witness testimony of a prosecutor may serve as an apt illustration. Consider, for example, the line of cases on “selective” law enforcement. United States v. Steele, 461 F.2d 1148 (9th Cir. 1972), held that the government could not purposely single out a vocal opponent to the census for prosecution for refusal to answer the census. See also Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 394 F.2d 966 (1968). In order to determine if the “purpose” of a prosecution is to retaliate against someone who exercised the right of free speech, it may be necessary to call the prosecutor in the case as a witness for examination by the defendant’s counsel, as in United States v. Falk, 479 F.2d 616 (7th Cir. 1973) (en banc) (remand for hearing for defendant to question Assistant U.S. Attorney). If the prosecutor were sued for perjury in connection with his testimony about why he brought a particular prosecution, absolute immunity for the alleged perjury would be available, as Imbler, supra, 424 U.S. at 424, 96 S.Ct. 984, covers the decision when to prosecute. But if, for example, the prosecutor were sued for perjury in connection with the conduct or the rationale for some early general investigation, then only qualified immunity for damages from witness testimony would be available,,since the investigative activity of the prosecutor is outside of the Imbler protection in the majority’s view. Thus, as a consequence of the majority’s rejection of absolute witness immunity, there is left a patch-quilt of underlying immunities, varying from witness to witness and subject-matter to subject-matter.
. Witness testimony could arguably cause Fourth Amendment injury, for instance, if evidence seized in fact in an unreasonable search were admitted due to a perjured account by a police officer of the circumstances of the search. Similarly, witness testimony could arguably cause Fifth Amendment injury, e. g,, to the privilege against self-incrimination, if a confession taken in fact in violation of the Miranda rules were admitted because of perjured testimony. The instant case illustrates possible Sixth Amendment damage to the right to counsel, i. e., the concealment of an informant among the defendants due to an alleged perjury.
. First Amendment injury could arguably arise from witness testimony where an unjustified, albeit truthful disclosure, e. g., of another person’s membership in unpopular organizations, enables third parties to retaliate against a person who has exercised his right to freedom of association. See NAACP v. Alabama, 357 U.S. 449, 460-63, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Injury to the right of privacy implicit in the liberty protected by the Fourteenth Amendment could also arguably arise from truthful disclosures by a witness that bring to public light intimate and embarrassing details about other persons without sufficient justification. Cf. Doe v. McMillan, 412 U.S. 306, 308-10, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973). Other unjustified disclosures by a witness, not of private matters, may also be actionable under the Fourteenth Amendment when they result in the deprivation of any “liberty” or “property” recognized by state or federal law. See Paul v. Davis, 424 U.S. 693, 710-11, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).
. At 197 of 186 U.S.App.D.C., at 28 of 569 F.2d.
. Supra, 424 U.S. at 440, 96 S.Ct. at 1000 (concurring opinion), quoting from Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 463, 469 (1909).
. See n. 46 supra.
. Imbler, supra at 418, 96 S.Ct. at 989, citing Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). As a statutory cause of action, § 1983 on its face does not create or arguably even allow various immunities in damage suits. “Nevertheless, there are certain absolute immunities so firmly rooted in the common law and supported by such strong policy reasons that the court has been unwilling to infer that Congress meant to abolish them in enacting 42 U.S.C. § 1983.” Imbler, supra at 434, 96 S.Ct. at 997. (White, J., concurring opinion). Under § 1983, a study of *219common law immunities is not only useful as a prudential guide to the policy considerations but as fair evidence of Congressional intent in enacting the broad § 1983. In determining immunities in Bivens -type actions, which are created by the courts, the common law immunities also warrant careful study, even though obviously Congressional intent is not as paramount a factor. For the common law immunities often reflect the relevant policy concerns that the courts themselves would wish to embody in Bivens -type actions. Thus, the place of the common law should be the same in § 1983 analysis and Bivens -type analysis. This view is presumably shared by the majority, as it agrees that the final immunities to be applied should be no different in Bivens -type suits than in § 1983 suits. At 187 of 186 U.S.App. D.C., at 18 of 569 F.2d n. 8.
. 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).
. 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).
. 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).
. The result of the Court in one case, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), may be viewed as a departure from the common law, although it did not so state. In holding high executive officials subject to qualified immunity, Scheuer may have been a withdrawal from the absolute immunity at federal common law of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), and Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1886). But even that federal common law was of relatively recent origin compared to the legislative and judicial immunities with roots in the seventeenth century: “The [absolute] executive privilege in defamation actions would appear to be a judicial creature of less than 65 years’ existence.” Barr v. Matteo, 360 U.S. 564, 582, 79 S.Ct. 1335, 1345, 3 L.Ed.2d 1434 (1959) (Warren, C. J., dissenting opinion). At 197 of 186 U.S.App. D.C., at 28 of 569 F.2d, the majority highlights Scheuer v. Rhodes, supra, as showing how the Supreme Court departs from the immunities of the common law when a constitutional right is involved. In fact, as noted, Scheuer is the only Supreme Court case that does so, (without expressly acknowledging it either), and, moreover, as noted, that common law was of recent origin.
Analogous evidence of the importance of the common law in shaping the law of damage suits under § 1983 and Bivens is that courts will refer to the common law to formulate the various details of a constitutional tort action, see, e. g. Dellums v. Powell, 184 U.S.App.D.C. 275, at 283 -284, 566 F.2d 167, at 175 176 (1977) (issues of pleading and proof in First and Fourth Amendment claims).
.See Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 463, 474 (1909).
. King v. Skinner, Lofft 55, 98 Eng.Rep. 529, 530 (K.B.1772).
. Sacks v. Stecker, 60 F.2d 73, 75 (2d Cir. 1932) (Hand, A., J.).
As to just how “universal” the acceptance is, observe the age (from 1851 to 1907), the scarcity and source (five state and no federal) of the authorities cited in the majority opinion. Moreover, the one common law case that the majority cites to cast doubt upon absolute witness immunity, Liles v. Gaster, 42 Ohio St. 631 (1885), merely reserves the question. The only qualification on the absolute rule cited, pertinency or relevancy, is one which appears necessarily inherent in the rule from the outset.
. See, e. g., Brawer v. Horowitz, 535 F.2d 830 (3rd Cir. 1976). Brawer began its analysis of witness immunity in a Bivens -type suit with an inquiry into the immunity at common law. This inquiry, as the majority contends, at 185 186 of 186 U.S.App.D.C., at 16 17 of 569 F.2d n. 7, seeks to ascertain the immunity at federal common law. Brawer found a firm and established absolute witness immunity, citing, among other authorities, Judge Hand’s conclusion, supra n. 81, that relevant “words spoken” and “affidavits filed” were entitled to absolute immunity in the federal courts.
. At 185 186 of 186 U.S.App.D.C., at 16 17 of 569 F.2d n. 7. As a starting point of analysis for § 1983 immunities, the .Supreme Court does not look exclusively, however, to the federal common law. For example, Wood v. Strickland, supra, 420 U.S. at 318, 95 S.Ct. 992, expressly relied on state cases in determining the particular common law immunity. Looking at the § 1983 cases as a whole, it appears that the Court takes into account both state and federal common law in ascertaining the common law “tradition,” which it then decides whether to carry over to § 1983.
. Restatement of Torts (Tent. Draft No. 20) § 588.
. See F. Harper & F. James, The Law of Torts, § 5.22 at 424 (1956); W. Prosser, The Law of Torts, § 114 at 778 (4th ed. 1971).
. Imbler, supra, 424 U.S. at 439, 96 S.Ct. at 999.
. The common law immunity was not confined to defamation suits but extended, as noted, to any suit for damages arising out of relevant testimony. Of relevance to the present case is the rule that “false testimony in a criminal action that results in a conviction of the plaintiff does not furnish the basis of a civil suit to recover damages.” 60 Am.Jur.2d, Perjury, § 75 (footnotes omitted).
. Petty v. General Accident Fire & Life Assurance Corp., 365 F.2d 419, 421 (3rd Cir. 1966).
. Imbler, supra, 424 U.S. at 439, 96 S.Ct. at 999.
. W. Prosser, supra n. 85 at 778.
. F. Harper & F. James, supra n. 85 at 424.
. Imbler, supra, 424 U.S. at 440, 96 S.Ct. at 999 (White, J.).
. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).
. Ibid.
. Ibid.
. Imbler, supra, 424 U.S. at 423 n. 20, 96 S.Ct. 984; Id. at 438, 96 S.Ct. 984 (White, J.).
. Imbler, supra at 426, 96 S.Ct. 984; Id. at 439, 96 S.Ct. 984 (White, J.).
. In terms of policy analysis of witness immunity, the majority appears to rest its entire argumentation on the following enigmatic sentence: “Policy considerations counselling the insulation of private citizens from civil liability arising from their, performance as witnesses do *222not apply with equal force when a complaint charges that constitutional rights have been violated by a public employee operating from the witness stand.” At 197 of 186 U.S.App. D.C., at 28 of 569 F.2d (emphasis original). The exact meaning to be drawn from this single statement remains unclear to me. There are two possible meanings that can be inferred; both, however, are without merit, certainly in this conclusory form.
The first possible meaning is that because appellees allege a “constitutional” tort rather than a common law tort the significance of an absolute witness immunity at common law should be greatly discounted. I agree with the majority, as I have already stated, supra at 219 of 186 U.S.App.D.C., at 50 of 569 F.2d, that the common law is not binding for a Bivens -type action, but I hasten to repeat, see supra at 219 of 186 U.S.App.D.C., at 50 of 569 F.2d, that in virtually all cases, with the possible exception of one, see n.78 supra, the Supreme Court has adopted the immunity of the common law. Particularly with functions related to the judicial process, Pierson (judges) and Imbler (prosecutors), the Court has followed the common law immunity even in the setting of a “constitutional tort.” The majority may wish to argue in particular policy terms why absolute witness immunity is not justified in a Bivens -type suit, but it fails to do that here. Instead, the majority ignores Tenney, Pierson and Imbler, where the absolute immunities of the common law were all sustained in § 1983 actions, if it means to rest its case for the rejection of absolute common law immunity solely on the fact that a “constitutional tort” is alleged here.
The second possible meaning of the majority’s key sentence, quoted above, is that because the witness testifying is a government official rather than a private citizen the policy concerns of the common law, e. g. about the possible inhibition of full disclosure from the threat of civil suit, are not as realistically justified. The majority provides no support or argumentation at all for this contention, if, indeed, this is what the majority is advancing. I would think, as a practical matter, that the policy concerns about the private citizen have at least as much bearing to the public official. Let me take simply one illustration. Behind the concern for “intimidation” of the witness by threat of lawsuit is the undoubted realization of the common law of how burdensome litigation can be for the private party. Litigation for the public official is not necessarily any less burdensome: even if government counsel is provided, the long time delay of litigation, with possible money liability at the end, may be quite unsettling. In Imbler, for instance, the issue of absolute immunity was not finally determined until 1976, while the events of the robbery and the trial occurred in 1961; in Imbler, the criminal defendant appealed through the state courts, sought habeas through the state courts, sought habeas in the federal courts and then sued the prosecutor.
If a § 1983 suit arising out of a criminal conviction has to await the full exhaustion of remedies on appeal and at habeas, see Guerro v. Mulhearn, 498 F.2d 1249, 1253 (1st Cir. 1974), then the pattern of delay in Imbler might not be atypical. Delay, of course, makes litigation additionally .burdensome, particularly for officials who may have left government or taken up other positions, e. g., judgeships, as did one of the defendants in this very suit. (William H. Stafford of the Northern District of Florida; see Briggs v. Stafford, 186 U.S.App. D.C. 179, 569 F.2d 10 No. 75-1578, a companion case).
This brief line of argument about the burdensomeness of litigation for officials serves to illustrate that there are a number of issues, calling for exposition and debate, about whether the policy concerns of the common law towards a witness apply with “equal force” to government officials as they do to private parties. If the majority means to rest its rejection of the common law immunity on this difference, it is surely obliged to offer more reasons and support than its summary statement here.
. Imbler, supra 424 U.S. at 426, 96 S.Ct. at 993.
. Ibid.
. See Imbler, supra 424 U.S. at 428-29, 96 S.Ct. 984.
. 535 F.2d 830 (3rd Cir. 1976).
. Id. at 837.
. At 197 of 186 U.S.App.D.C., at 28 of 569 F.2d n. 15.
.Id. at 197 of 186 U.S.App.D.C., at 28 of ' 569 F.2d. Indeed, our own circuit en banc proceeded to the merits of an equal protection challenge by “reserving,” and assuming arguendo, the question of state action. Ripon Society v. National Republican Party, 173 U.S. App.D.C. 350, 525 F.2d 567 (1975) (McGowan, J., for the court).
.Imbler, supra at 427 n. 25, 96 S.Ct. at 993.
. At 179, 195-196 of 186 U.S.App.D.C., at 10, 26-27 of 569 F.2d. '
. At 194 of 186 U.S.App.D.C., at 25 of 569 F.2d.
. Nor did the common law offer less protection to the witness who was not cross-examined. In fact, the only requirement of the common law for full protection is that the “witness . must be engaged in giving testimony that has some reasonable relationship at the case in hand.” F. Harper & F. James, supra n. 85 at 424.
.See n. 10 supra and text, supra at 192-193 of 186 U.S.App.D.C., at 23-24 of 569 F.2d.
. It thus makes no difference that the judge here asked only a single question, calling for a simple answer. The common law did not make an exception even for a witness who appears to have plainly given a false answer. See supra at 221 of 186 U.S.App.D.C., at 52 of 569 F.2d. However, I do not understand the majority to be basing its rejection of absolute witness immunity here upon a “plain perjury” exception that it may wish to engraft onto the witness immunity doctrine.
. At 194 of 186 U.S.App.D.C., at 26 of 569 F.2d.
. To begin with, the majority’s view of Goodwin’s and the grand jury’s roles and relationships rests on some very fundamental misconceptions, as I hope I have made clear in Part I, C, supra. But even to take the majority’s distorted separation of grand jury functions and the prosecutor’s supposedly different immunity hinging thereupon, the facts do not bear out the majority’s claims. The majority says that at the time of the alleged perjury the grand jury was functioning as an “investigative tool” for use as discovery into WAW activities and not as a “deliberative body” deciding whether to return indictments. At 193 of 186 U.S.App. D.C., at 24 of 569 F.2d. As suggested earlier, supra n. 11, how then does the majority explain the uncontested fact that on the same day as Goodwin’s testimony, 13 July 1972, the grand jury returned indictments against six of the appellees for criminal violations of eight sections of the U.S.Code?
Astonishingly, the majority cites as evidence of the “investigative” function of the grand jury on 13 July the fact that “none of the WAW members subpoenaed actually testified.” At 193 of 186 U.S.App.D.C., at 24 of 569 F.2d (emphasis original). I would think that this fact points in precisely the opposite direction, that because not a single subpoenaed WAW member was called for inquiry before the grand jury, the grand jury was not acting primarily as an “investigative tool” into the WAW. The more logical conclusion to draw from this fact — and from the fact that the indictments were returned on the day of the alleged perjury — is that the grand jury was, indeed, functioning in its role as a deliberative body deciding whether to return indictments. If there is any validity whatsoever in the principle of separating grand jury functions espoused by the majority, the facts here dictate a conclusion different from that reached by the majority.
. At 195 of 186 U.S.App.D.C., at 26 of 569 F.2d. --''
. See W. Prosser, supra n. 85 at 778.
. See F. Harper & F. James, supra n. 85 at 423-24, and cases there cited.
. See supra at 220-222 U.S.App.D.C., at 51-53 of 569 F.2d.
. The sole question for decision in this case is whether Goodwin is entitled to absolute or qualified immunity. Having decided that only qualified immunity is appropriate here, the majority seeks in addition to define the exact scope of that immunity on remand: “[H]is protection from liability depends upon a showing that he entertained a good-faith, reasonable belief in the truth of his response to the federal district judge in Florida.” At 185 of 186 U.S. App.D.C., at 16 of 569 F.2d. Believing that the definition of good-faith immunity may be more complicated than the majority appears to recognize, I think that the formulation of this definition should be left for the trial judge in the first instance. This is so particularly since the exact definition of the immunity is unnecessary and irrelevant to the question for decision.
The problem that I have with the majority’s definition is that it does not focus on whether Goodwin may have had a reasonable, good faith belief that his action did not violate the constitutional rights of appellees. The leading cases on the immunity standard traditionally inquire into the reasonableness and the good-faith belief that one’s action did not violate the Constitution. See, e. g., Wood v. Strickland, 420 U.S. 308, 321-22, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Zweibon v. Mitchell, 170 U.S.App. D.C. 1, 8, 516 F.2d 594, 671 (1975) (en banc). Instead, the majority ignores the Constitutional dimension to the qualified immunity and inquires only as to the good-faith belief in the accuracy of the testimony. The majority is thus assuming that perjury by a prosecutor is per se a constitutional violation, an assumption too complicated to be made sub silentio at this stage. Perjury may amount to a constitutional violation, depending upon its effect, cf., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (due process), but similarly may not violate a defendant’s constitutional rights, cf., Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (right to counsel), depending upon all the circumstances. As I shall show, the possibility of these different results means that the definition of a qualified immunity in this case must take into account some belief as to whether the Constitution was violated. In other words, it may be that an alternative ground for qualified immunity might be that Goodwin possessed a good faith reasonable belief that his perjury would do no constitutional harm to appellees. It may develop at trial that there is no basis for this ground, but the majority should not foreclose it at this stage.
My reservations about the summary definition of the majority may be more specifically illustrated by reference to the recent case of Weatherford v. Bursey, supra. In that case, the prosecution concealed the presence of an undercover agent among defendants up until *227the day of trial. Even though the agent attended pre-trial meetings between the other defendants and their counsel, the Court found, in a § 1983 action for damages, that there had been no violation of the Sixth Amendment right to counsel, noting, for example, that the agent had not communicated the substance of the overheard conversations to the prosecution or at trial. The purpose of the concealment instead, the Court also noted, may have been so that the State could effectively use his services on other matters.
In the Weatherford situation, where the presence of the undercover agents among the defendants did not violate the Sixth Amendment, it follows that the prosecutor does not violate the Sixth Amendment by concealing that presence. It might also follow that if the concealment were accomplished by perjury, the perjury, however reprehensible it may be, might not cause any injury to the Sixth Amendment rights of the defendants because the effect of the perjury was only to continue the concealment of the agent, whose presence did not violate the Sixth Amendment.
If, on the other hand, the agent was reporting on the defense deliberations to the prosecution, Weatherford suggests that there may be an infringement of the Sixth Amendment’s right to counsel. And, therefore, if perjury concealed the presence of such an informer, that action could well cause injury to Sixth Amendment rights. This is the situation alleged here, that' the informer was supposed to have disclosed the confidences of defense deliberations to the prosecution and that the alleged perjury'"of the prosecutor allowed this to happen by/concealing the identity of the informer. Even should'7 all this be proved at trial, I am not/ertain that Goodwin could secure immunity only if he/ could show a reasonable, good-faith belief in the accuracy of his .testimony. It may/be that there would also be qualified immunity if Goodwin could show a reasonable, goqd-faitn basis for his belief that his testimony,/ven/ he was unsure as to its accuracy, would not cause/ injury to the Sixth Amendment rights of the/ defendants. In other words, if Goodwin reasonably believed, for example, that the informant, whose identity he was concealing, was,not supposed to disclose the defense confidences to the prosecution and if Goodwin had a good-faith belief that the concealment was designed only so that the informant’s services could be effectively used on other matters, perhaps unrelated to this prosecution, then he might have had a reasonable and good-faith belief that he was not violating the Sixth Amendment with his inaccurate testimony.
The analysis suggested above for the Sixth Amendment may also be appropriate for the other constitutional injuries. Allegations of injury to Fifth Amendment due process, for example, may turn upon the prosecutor’s duty under Brady v. Maryland, supra, to disclose certain classes of materials to the accused upon request; there may also be room here for a defense of reasonable and good-faith belief that the due process rights of appellees, as defined by Brady, were not infringed by Goodwin. The short of it is that, unless perjury by a prosecutor is to be taken as a per se violation of the Constitution, the definition of a qualified immunity, when perjury is alleged, must take into account the nature of the particular constitutional injuries claimed, e. g., right to counsel or due process. Since this task may benefit from an understanding of the facts that develop at trial and from a careful study of the relevant case law, the formulation of the definition should be left with the trial judge in the first instance. As an illustration of a qualified immunity that properly takes into account the legal standard which has allegedly been violated, see the jury instructions found at Dellums v. Powell, 184 U.S.App.D.C. 275, at 294 n. 50, 566 F.2d 167, at 186 (1977).
. At 194 of 186 U.S.App.D.C., at 25 of 569 F.2d.
. See at 195 of 186 U.S.App.D.C., at 26 of y 569 F(2d n. 14.
. 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).
. 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
. Abney, supra at 662, 97 S.Ct. at 2042.
. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950). While the majority suggests that under the facts in Gregoire the result might come out differently today, it expressly refrains from “criticizing any of the reasoning employed by Judge Hand.” At 191 of 186 U.S.App.D.C., at 22 of 569 F.2d n. 10.
.Justice Powell in Imbler also points to the significance of its protection: “An absolute immunity defeats a suit at the outset, so long as the official’s actions were within the scope of the immunity.” 424 U.S. at 419 n. 13, 96 S.Ct. at 989 (emphasis added).
. At 195 of 186 U.S.App.D.C., at 26 of 569 F.2d n. 14.
. See, e. g., D’Ippolito v. Cities Serv. Co., 374 F.2d 643, 649 (2d Cir. 1967). But see Firestone Tire & Rubber Co. v. General Tire & Rubber Co., 431 F.2d 1199 (6th Cir. 1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1196, 28 L.Ed.2d 325 (1971) (refusal to certify reviewable for clear abuse of discretion). The legislative history indicates that certification was to be a mandatory condition for appeal under section 1292(b). Hearings on H.R. 6238 and H.R. 7260 Before Subcomm. No. 3 of the House Comm, on the Judiciary, 85th Cong., 2d Sess. ser. 11 (1958). See generally Note, Interlocutory Appeals in the Federal Courts under 28 U.S.C. § 1292(b), 88 Harv.L.Rev. 607, 613-617 (1975).
. 9 Moore’s Federal Practice ¶ 110.22[5] at 267 (2d ed. 1975).
. La Buy v. Howes Leather Co., 352 U.S. 249, 259-61, 77 S.Ct. 309, 315, 11 L.Ed.2d 290 (1957). See also Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).
. Note, Supervisory and Advisory Mandamus under the All Writs Act, 86 Harv.L.Rev. 595, 618 n. 96 (1973) (emphasis added).