McDonough v. Smith

Brief of Criminal Defense Organizations, Civil Rights Organizations, and the Cato Institute as Amici Curiae in Support of Petitioner

Brief filed: 03/04/2019


McDonough v. Smith

United States Supreme Court; Case No. 18-485

Prior Decision

Decision below 898 F.3d 259 (2nd Cir. Aug. 3, 2018)


An accrual rule that turns on the “awareness of the evidence and its improper use” is confusing and unworkable. The rule fails to provide clear guidance to plaintiffs and is unworkable. The awareness rule is inconsistent with most other accrual rules for claims stemming from prosecutorial misconduct and will encourage piecemeal litigation. Any rule that encourages litigants to file §1983 lawsuits during pending criminal proceedings is divorced from the realities of criminal litigation. Filing a §1983 claim during a criminal prosecution incentivizes the prosecutor to secure a conviction. Because of the breadth of civil discovery, parallel civil and criminal litigation harms defendants. Filing a §1983 suit during a criminal proceeding prejudices an innocent person’s criminal defense and his §1983 claim. An accrues-during-prosecution rule functionally forecloses many §1983 evidence-fabrication claims and would have devastating consequences. Evidence fabrication is a systemic problem. An accrues-during-prosecution rule will functionally bar many meritorious evidence-fabrication claims. In many cases, an evidence-fabrication claim under §1983 is the only effective form of redress.


R. Stanton Jones, Andrew T. Tutt, Samuel F. Callahan, and Graham W. White, Arnold & Porter Kaye Scholer LLP, Washington, DC.

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