PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
            ________________

            Nos. 13-1549 and 13-2236
              ________________

               BYRON HALSEY,

                                    Appellant
                        v.

   FRANK PFEIFFER; GERALD ALSTON; PETER
   BRANNON; RUSSELL COLUCCI; KEVIN CONNORS;
  GERALD COURTNEY; RAYMOND LYNCH; JOHN
  PROPSNER; EDWARD SANTIAGO; JOHN DOES NOS
   1-100; RICHARD ROES NOS 1-10; PLAINFIELD
  POLICE DEPARTMENT; CITY OF PLAINFIELD;
  COUNTY OF UNION
                 ________________

  On Appeal from the United States District Court
              for the District of New Jersey
               (D.C. Civ. No. 2-09-01138)
       Hon. Dennis M. Cavanaugh, District Judge
                ________________

           Argued December 18, 2013

BEFORE: JORDAN, VANASKIE, and GREENBERG,
              Circuit Judges
                   (Filed: April 24, 2014)
                      _____________

                   OPINION OF THE COURT



David Rudovsky, Esq. (argued)
Jonathan H. Feinberg, Esq.
Kairys Rudovsky Messing & Feinberg, LLP
718 Arch Street, Suite 501 South
Philadelphia, PA 19106

Peter J. Neufeld, Esq.
Emma Freudenberger, Esq.
Anna Benvenutti Hoffmann, Esq.
Neufeld Scheck & Brustin, LLP
99 Hudson Street, 8th Floor
New York, NY 10013

   Attorneys for Appellant

Edward J. Kologi, Esq.
Michael S. Simitz, Esq. (argued)
Kologi & Simitza
923 N. Wood Avenue
Linden, NJ 07036

   Attorneys for Appellee Frank Pfeiffer

Robert F. Varady, Esq. (argued)

                              2
LaCorte, Bundy, Varady & Kinsella
989 Bonnel Court
Union, NJ 07083

   Attorney for Appellee Raymond Lynch


GREENBERG, Circuit Judge

                     I. INTRODUCTION

       The facts underlying this appeal—many of which are
undisputed—are hardly believable. Plaintiff-Appellant, Byron
Halsey, a young man with limited education, learned that the
two small children for whom he had been caring had been
tortured and murdered. He wanted to help in the investigation
of these heinous crimes but found himself isolated in a police
interview room, accused of the murders, told he had failed a
polygraph examination (that we now know he passed), and
confronted with false incriminating evidence. For a time he
maintained his innocence, but, after being interrogated for a
period extending over several days, and in a state of great fear,
he signed a document purporting to be his confession to the
crimes. Subsequently, he was charged, indicted, convicted, and
sentenced to prison for two life terms. But his “confession”
contained details that the investigators must have inserted
because Halsey could not have known them. And the real killer,
though he had a record of sexual assaults, was known to the
police, and was an obvious potential suspect as he lived in an
apartment next to the one that Halsey, the children, and their
mother occupied, avoided arrest despite nervously asking the

                               3
investigating detectives whether he would be “locked up.”
Finally, after 22 years the State of New Jersey released Halsey
from prison, not because trial error cast doubt on the result of
his criminal trial, but because it had been established beyond all
doubt that he had not committed the offenses. Except when an
innocent defendant is executed, we hardly can conceive of a
worse miscarriage of justice.

        After his release, Halsey filed this civil action under 42
U.S.C. § 1983 with supplemental state-law claims alleging that
state actors and entities involved in his prosecution had violated
his constitutional rights. The defendants included, inter alia,
defendants-appellees Frank Pfeiffer and Raymond Lynch, the
two investigating police officers who Halsey claims (1)
fabricated the oral confession that led to the prosecutor filing
charges against him, (2) maliciously prosecuted him, and (3)
coerced him into signing the fabricated confession, which was
the critical evidence at his criminal trial. On appellees’ motions
for summary judgment, the District Court entered judgment in
their favor on all three claims on February 21, 2013, because the
Court believed that they had qualified immunity from Halsey’s
claims. Halsey v. Pfeiffer, Civ. No. 09-1138, 

(D.N.J. Feb. 21, 2013) (Halsey). Halsey then filed this appeal.

       We will reverse and remand the case to the District Court
for further proceedings. First, we reaffirm what has been
apparent for decades to all reasonable police officers: a police
officer who fabricates evidence against a criminal defendant to
obtain his conviction violates the defendant’s constitutional
right to due process of law. Second, we reinstate Halsey’s
malicious prosecution claim, principally because the prosecutor

                                4
instrumental in the initiation of the criminal case against Halsey
has acknowledged that the false confession that appellees
claimed they obtained from Halsey contributed to the
prosecutor’s decision to charge Halsey, and for that reason we
will not treat the decision to prosecute as an intervening act
absolving appellees from liability. Moreover, without that false
confession, there would not have been direct evidence linking
Halsey to the crimes so that the prosecutor would not have had
cause to prosecute Halsey. Therefore, the District Court should
not have held on the motions for summary judgment that
appellees had a probable cause defense to Halsey’s malicious
prosecution claim. Third, we conclude that because the
evidence was sufficient for a rational jury to find that appellees,
who had interrogated Halsey for many hours, had coerced him
into signing the false confession, the Court should not have
granted appellees a summary judgment on Halsey’s coercion
claim.



               II. FACTUAL BACKGROUND

       The record that the parties submitted to the District Court
on appellees’ motions for summary judgment contains some
disputed facts that we recount, as we must, in the light most
favorable to Halsey, who was the non-moving party, though in
doing so we do not ignore undisputed facts favorable to
appellees. We emphasize, however, that we are not deciding
that appellees are liable to Halsey as we cannot be certain of
what evidence the parties will introduce at trial, and that
evidence may vary significantly from the evidence before the

                                5
District Court on the motions for summary judgment. In any
event, Halsey did not file a cross-motion for summary judgment
and even now does not contend that he is entitled to a judgment
in his favor without a trial.

       The record, as now developed, shows that on the morning
of Friday, November 15, 1985, the superintendent of the
apartment building in Plainfield, Union County, New Jersey, in
which Halsey resided, discovered the body of eight-year-old
Tyrone Urquhart who had been murdered in the building’s
basement. The superintendent notified the police, and when the
officers arrived at the apartment house, they also found in the
basement the body of Tyrone’s seven-year-old sister, Tina, who
like Tyrone, had been murdered. Tina had been raped, beaten,
and strangled to death; Tyrone had been sexually assaulted,
mutilated with scissors, and killed with five large nails
hammered into his brain. It is difficult to imagine more brutal
crimes. The killer was Halsey’s friend and next-door neighbor,
Clifton Hall, who had a prior record for attempted sexual
assault. Naturally and appropriately, the police interviewed Hall
who, at that time, appeared to be nervous and asked whether he
was “going to be locked up.” J.A. 627. 1 But Hall need not have
been worried about that possibility because the investigators
focused their attention almost immediately on Halsey, and, so
far as we can ascertain from the record, they did not actively
treat Hall as a suspect.


1
 J.A. refers to the parties’ joint appendix and D.A. refers to
appellees’ supplemental appendix.


                               6
        Halsey, who had been living with Margaret Urquhart, the
mother of Tyrone and Tina, in the apartment building,
considered her children to be his own. Halsey, however, was
not a model citizen as he had a record that included numerous
arrests, though most were not for violent crimes and none had
resulted in his incarceration. At the time of the children’s
murders, Halsey was 24 years old with only a sixth-grade
education, and was, by his own account, not “a good reader.”
J.A. 270. Indeed, in 1988 he tested in the “Mildly Mentally
Retarded” range of intellectual functioning, with an I.Q. score of
68. J.A. 890. Pfeiffer was aware of Halsey’s cognitive
limitations. 2 Halsey had worked as a superintendent until about
a week before the murders in the building where he, Urquhart,
and the children lived and during that employment had access to
the basement where the bodies were found. But, as he later
would tell Pfeiffer, he had relinquished the basement keys prior
to the murders and we do not know if he continued to have
access to the basement after his employment as superintendent
ended.

      Halsey was at his new job at another location when
Urquhart telephoned him and told him that her son was dead.
Understandably, he rushed home to his apartment, which he

2
  As Halsey’s false-confession expert notes, Halsey had tested
higher as a child (77) and later, as an adult (94). As we will see,
however, the important matter with respect to Halsey’s mental
limitations is Halsey’s mental capacity at the time he confessed
as well as appellees’ perception of that capacity. To that end
appellees do not dispute that Halsey was, and appeared to them
to have been, mentally limited.

                                7
immediately discovered to be a crime scene. Pfeiffer and other
detectives intercepted him and required him to accompany them
to the police station for questioning, which Halsey reluctantly
did.

       Because the events that transpired once Halsey arrived at
the police station that Friday morning were critical to the
disposition of the summary judgment motions and are critical on
this appeal, we recite them at length. The detectives took
Halsey to an interview room in the police station, read his
Miranda rights to him, handed him a Miranda waiver form, and
left him alone to decide whether to sign the waiver. After
Halsey signed the waiver, Pfeiffer and Lynch returned to ask
him questions, and Halsey’s answers were the first of three
statements that Halsey either gave or which was attributed to
him.

       In the first statement, Halsey told the detectives—in
significant detail—about his activities the night of the murders.
Halsey stated that Urquhart left to play bingo and then went
straight to work for a night shift, leaving Halsey alone with the
children. After she left, Halsey went next door to smoke
marijuana with Hall. As he left the apartment, he locked the
doors and warned the children not to let anyone in. After Halsey
and Hall smoked marijuana, they left the apartment building to
go drinking at various bars. However, they separated when Hall
went home prior to Halsey who stayed out and continued
drinking. When Halsey finally arrived home at about 1 a.m., he
observed that the door to his apartment was open, the lights and
stove were on, and the children were missing. For reasons that
are unclear to us, in his first account to the investigators of his

                                8
activities on the night of the murders he falsely claimed to have
gotten into a fight on the way home. Regardless, discovering
that the children were missing, Halsey began searching for them
by asking several relatives and neighbors, including Hall,
whether they had any information about the children’s
whereabouts. Halsey called Urquhart within a half hour of
arriving home and told her that the children were missing. In a
debilitated state—he described being “in a daze” after staying up
until 4 a.m.—Halsey went to work that morning even though the
children still were missing, but he returned home after Urquhart
called him and told him that Tyrone was dead.

        Following his initial interview with Halsey at the police
station, Pfeiffer obtained and executed a search warrant to take
Halsey’s clothes and to obtain his fingernail scrapings. Pfeiffer
then asked Halsey if he would take a polygraph examination,
and Halsey agreed to do so. Lynch, who was in charge of the
Major Crimes Division of the Union County Prosecutor’s
Office, arranged for a polygraph examiner from that office,
Peter Brannon, to administer the polygraph. Meanwhile, Halsey
fell asleep at the police station as he waited for the detectives
and Brannon to arrive. When they arrived, Brannon interviewed
Halsey and determined that he was too sleep deprived to take the
test. After Halsey had spent over 12 hours at the police station,
officers took him to his apartment to get clothes and then took
him to his half-sister’s apartment to sleep. They told him that
they would pick him up the next morning to administer the
polygraph test.

      On the morning of Saturday, November 16, Pfeiffer
picked up Halsey and drove him to the prosecutor’s office in

                               9
Elizabeth, New Jersey. There, Halsey, who was not represented
by counsel, signed a statement stipulating that the results of the
polygraph test could be admitted into evidence at a criminal
trial. The agreement went further and explicitly waived any
opportunity for the side opposing the use of the polygraph
results to introduce expert witnesses at trial to challenge the
results, but did permit questions relating to the polygraph
examiner’s qualifications and methods.

       Halsey ate breakfast and then took the polygraph, which,
according to an uncontested expert report written years later by
Charles Honts, Halsey’s expert on polygraphs, he passed. This
report, which Honts prepared with the use of methods of
assessing polygraph results that had been upgraded since the
time that Brannon gave the test, indicated that despite “some
serious problems with the design and implementation” of the
exam, Halsey registered “the strongest truthful score possible,”
even according to the metric used in 1985. J.A. 819-20. Honts
further opined that “no polygraph examiner who used a valid
scoring technique in 1985 could [have reached] the conclusion
that Mr. Halsey was being deceptive.” J.A. 819. Nevertheless,
Lynch testified at Halsey’s criminal trial that when he met with
Brannon at the prosecutor’s office, Brannon’s “preliminary”
view was that Halsey “was attempting deception.” J.A. 410. In
fact, Brannon subsequently indicated in a written report that
Halsey had lied in some respects, he was likely the killer, and he
had acted alone.

       When Halsey finished taking the polygraph exam,
Pfeiffer drove him to the police station in Plainfield, and again
took him to an interview room. The evidence at Halsey’s trial

                               10
indicated that Halsey had told Pfeiffer that he wanted to correct
his first statement, though the record is unclear (and the parties
do not explain) whether this was why the police took Halsey to
the station or whether he went there on his own accord. In any
event, Halsey gave a second statement, which, like the first,
included many details, none of which were incriminating. He
did, however, recite in the second statement that he had not
gotten into a fight on his way home after drinking at the bars, as
he had claimed in his first statement. But he added that he
returned to his apartment with another individual, who, he said,
could confirm part of his account. Halsey has not explained
why he made up the seemingly insignificant fact regarding the
imaginary fight, though in his deposition in this case he
indicated that his physical state when he gave his first statement
could have been a contributing factor leading to this fabrication.

       Halsey testified in his deposition that he thought that up
until this point Pfeiffer had treated him “fairly.” D.A. 50.
Indeed, Halsey indicated that Pfeiffer even offered him
cigarettes. In Halsey’s view, however, the nature of his
treatment soon changed. While Halsey was completing his
second statement, Pfeiffer and Lynch knew that Brannon
believed that Halsey had failed his polygraph test. The
detectives nonetheless let Halsey finish his story, to “hear him
out,” J.A. 414, before confronting him with the results of the
polygraph.

       After conferring with Lynch, Pfeiffer returned to
interrogate Halsey for the next two hours, beginning at about
3:40 p.m.—an interrogation that Pfeiffer claimed in his
deposition ultimately led Halsey to confess to the commission of

                               11
the crimes. Halsey claimed in his deposition that this time
Pfeiffer took a different, more “forceful” approach than he had
taken earlier. D.A. 55. Pfeiffer stopped taking notes and
fixated on Halsey. As a result, the only record of this critical
interrogation appears in Pfeiffer’s summary of the interview,
which he drafted four days later. Lynch, as well as Pfeiffer,
prepared reports describing the proceedings in the investigation
so that each set forth his view of the investigative steps.

       According to Halsey’s deposition testimony, Pfeiffer was
as relentless in this renewed interrogation as he was obstinate:

       He didn’t really want to hear what I had to say.
       He was just coming with these ideas, this paper,
       and he was telling me this and telling me that. . . .
       I’m telling him I had nothing to do with the crime,
       okay. This man keeps telling me I have
       something to do with the crime; this person said
       that, that person said that, I failed the polygraph
       test, and he kept going over and over and over. I
       told him I didn’t do it, I don’t know nothing about
       it.

D.A. 55. Pfeiffer probed Halsey’s statements, which he told
Halsey he found absurd, like not calling the police immediately
after discovering that the children were missing and eating a
meal before looking for them.

      Pfeiffer also told Halsey that two witnesses, Jeffrey
Nicholson and Halsey’s cousin, Audrey King, had given
statements contradicting his account of his activities on the night

                                12
of the murders. Pfeiffer informed Halsey that Nicholson said
that he had heard Halsey engage in sexual relations that night at
a time when Halsey claimed he was searching for the children,
and that King had spoken with him about Tina and Tyrone prior
to the time that he claimed to have returned home from his
evening of drinking. In addition, Dawn Troutman said that
Halsey called her at around 9:00 p.m. on the night of the
murders and told her that the children were missing. In 2007,
King and Troutman told the Union County Prosecutor’s office
that their statements to the police at the time of the original
investigation had been inaccurate. According to these
witnesses’ 2007 accounts, the police at the time of the first
investigation had “badgered” Troutman and coerced King until
they agreed to change earlier statements that they had given.

       Halsey contended in his deposition in this case that he
maintained his innocence throughout the interrogation, telling
Pfeiffer repeatedly that he “didn’t do it” and that he “had
nothing to do with it.” J.A. 277-78. Pfeiffer purports to have a
different recollection of the interrogation. In the report that he
prepared after the prosecutor filed the charges against Halsey, he
wrote that Halsey began “talking in somewhat jibberish type of
phrases” and told Pfeiffer that he often loses control when he
consumes drugs and alcohol, becoming a “Jeckyl and Hyde.” It
then became obvious to Pfeiffer that Halsey wanted “to get
something off of his mind”; Pfeiffer said that he could help; and
Halsey “went into some form of a trance . . . talking basically in
one syllable sentences.” Halsey began to cry, and then
confessed in vague terms to killing the children and hiding their
bodies. J.A. 485-86. Halsey acknowledged in his deposition to
having cried, and could not recall whether he went into a trance;

                               13
but he denied the rest of Pfeiffer’s account, particularly the
portion about confessing.

       According to Lynch’s deposition testimony, Pfeiffer
emerged from the interview room around 6:00 p.m., about 2.5
hours after he began the more forceful part of the interrogation,
and told Lynch that Halsey had confessed to the crime. He also
showed Lynch a piece of paper with Halsey’s handwriting,
which contained doodles and cryptic phrases—still nothing
incriminating—including the line, “I feel like a fuck up because
of thing or things that happen [sic] Friday night.” J.A. 929.

       According to Pfeiffer’s report, Halsey requested that
members of the Union County Prosecutor’s Office join in his
conversation with appellees. Lynch testified at Halsey’s trial
that he entered the interview room with Pfeiffer, beginning
another six hours of uninterrupted interrogation. Appellees
described Halsey asking Lynch what charges he would face and,
upon learning that he would be charged with rape and homicide,
he agreed to make a formal statement. Without any objection or
request for clarification, Halsey again agreed to waive his
Miranda rights.

       Pfeiffer recorded the alleged confession in a question-
and-narrative-answer format to which we refer as Halsey’s third
statement. The account began with Halsey, who was frustrated
and angry, berating Urquhart before she departed to play bingo,
and quickly turned into a scene of Halsey beating and choking
the children. This account contained information about the
crime that was not publicly available, and thus that only the
police and the murderer knew. The account, in terrible detail,

                               14
indicates that a brick was used to hammer nails into Tyrone’s
head and was left on a closet shelf; bloody rags and scissors
were stuffed in a plastic bag and hidden in a boiler room,
outside of a broken window; Tina was raped on a couch in the
basement, with her underwear stuffed in her mouth; and the
children’s bloodied bodies were carried down the staircase to the
basement. 3

        The purported confession also included details that were
consistent with what the investigators believed at the time they
were questioning Halsey, but these details were inconsistent
with or omitted significant facts as they ultimately emerged.
Thus, Pfeiffer’s summary of Halsey’s confession stated that he
had hammered four nails into Tyrone’s head. It is true that four
nails were visible when the police examined Tyrone’s body, but
an x-ray and a pathology report later revealed that there was a
fifth nail in Tyrone’s head. In another omission of a critical
fact, the confession did not indicate that Tyrone had been
sexually assaulted, a fact that was not known until later tests
were performed on Tyrone’s body.

       While Halsey was insisting that he was innocent (or if
Pfeiffer’s and Lynch’s testimony at Halsey’s criminal trial is to

3
 In the statement attributed to Halsey he said that he carried the
two children down the stairs to the basement and that he
sexually assaulted Tina “in the basement on the blue couch.”
J.A. 488-89. He also purportedly said that he grabbed Tina by
the throat “upstairs and choked her” until he “killed her.” J.A.
490. This point is important as the police found “blood on the
staircase” and that was a “nonpublic fact.” J.A. 549.

                               15
be believed, while he was confessing), Assistant Prosecutor
David Hancock was outside of the interview room, waiting for
Pfeiffer or Lynch to slide each finished page of what appeared
to be a summary of Halsey’s oral confession underneath the
door. Hancock was present to suggest any questions that the
detectives might have forgotten to ask and to determine whether
there was sufficient probable cause to charge Halsey with the
murders. Hancock testified in his deposition that he did not
recall hearing any yelling and even reported hearing laughter
coming from the interview room. But Hancock was unable to
understand the interview room’s occupants’ conversation and
assumed that the pages appellees were sliding to him were an
accurate transcription of Halsey’s statement.

        Although Halsey has denied confessing, he has admitted
that after the investigators reduced the incriminating statement
to writing and showed it to him, he signed it. Halsey explained
in his deposition that the detectives had been ignoring his
answers, and he was “tired . . . , drained, frustrated.” D.A. 67.
Halsey claimed in his deposition to have signed the statement to
“get away” from the detectives, who had been “coming at
[him]” all night, causing him to “fear[] for [his] life.” D.A. 67;
J.A. 276, 494. 4

       The chief of the Plainfield Police Department, John

4
  Halsey testified in his deposition that “I just was arguing with
them and going back and forth and no one seemed to be
listening to what I was saying, and there was hollering and
screaming and just so much stuff, and I was like, whatever, I just
signed, [sic] get away from them.” J.A. 276.

                               16
Propsner, arrived at the police station at about midnight to go
over Halsey’s third statement, the so-called confession. It took
about 17 minutes for Propsner to discuss the written statement
with Halsey and to obtain his signature on it. According to
Pfeiffer’s summary, Halsey made a minor edit on the first page,
which shows a handwritten “I” and “BH.” Halsey testified in
his deposition that he could not recall whether he made those
changes, or whether he even had a chance to review the
statement before he signed it.

         Hancock testified in his deposition that, based in part on
Halsey’s confession, he decided to charge Halsey with the
murders. Halsey’s apparent knowledge of the nonpublic details
of the crimes significantly contributed to Hancock’s decision to
charge Halsey with the offenses. As Hancock explained in his
deposition, he deems corroborating evidence to confessions to
be critical and uncorroborated statements to be “worthless.”
J.A. 753. The incriminating details that he believed that Halsey
supplied were particularly important because, in Hancock’s
view, a defendant’s failure on a polygraph examination is not, in
itself, a sufficient basis to arrest and charge him. Hancock did
not indicate whether, without the confession, he would have
believed that there was sufficient probable cause to prosecute
Halsey based on the polygraph exam results and other evidence,
such as the circumstance that Urquhart left him alone with the
children when she left the apartment to play bingo and go to
work. He conceded, however, that he would not have charged
Halsey that night if he did not have the confession.

      Hancock read only a few pages of what he believed was
Halsey’s admission of guilt before starting to draft the criminal

                                17
complaint against him. Hancock explained in his deposition that
if Halsey had refused to sign the so-called confession and
backtracked, he might not have charged Halsey with the
offenses. But Halsey gave no indication to Propsner that the
confession was, as he later put it, “a lie.” D.A. 38. So Hancock
saw no reason to delay bringing the charges.

       A detective, other than Pfeiffer or Lynch, took Halsey to
be arraigned on charges of first degree murder, aggravated
sexual assault, possession of a weapon, and child abuse. 5
During a hearing in a state trial court on a motion to suppress
evidence of the confession, the prosecutor indicated that if the
court excluded Halsey’s signed confession, the prosecution
would not have sufficient evidence to proceed with the case
because the confession was the sole direct evidence linking
Halsey to the crimes as there was no physical evidence or
eyewitness testimony supplying such a link. The state court
denied the motion to suppress the confession, so it was admitted
into evidence, and used at trial. Halsey was convicted and
sentenced to two life terms plus 20 years in prison. As severe as
the sentence was, it was less severe than the death penalty that
the prosecutor had sought. Halsey appealed, but the New Jersey
courts upheld the conviction. See State v. Halsey, 

, 635 (N.J. Super. Ct. App. Div. 2000).

        The criminal proceedings did not end with the trial and
direct appeal. Finally, after additional proceedings, the Union

5
 Prosecutor Howard Weiner signed the criminal complaint, but
he had no recollection of Halsey’s criminal case when he was
deposed in this litigation.

                               18
County Prosecutor’s Office agreed to release certain items from
the crime scene for DNA testing. In 2006 a DNA test and a
follow-up investigation confirmed, beyond dispute, that Halsey
was innocent. In particular, the results excluded Halsey as a
potential contributor to the semen stains found on Tina’s
underpants and the basement couch. Those items, as well as a
cigarette butt in the basement, tied Clifton Hall to the crimes.
The Union County Prosecutor’s Office then moved to vacate
Halsey’s conviction and it sought and obtained an order
dismissing the indictment against Halsey who was released from
prison.

       The prosecutor then reopened the investigation and
ultimately concluded that Hall had committed the offenses and
had acted alone. Besides the new DNA evidence, the
prosecution took into account a new witness account, which
debunked a statement that Hall had given regarding his
whereabouts the night of the murders, as well as an expert report
suggesting that Halsey’s behavior during his confession should
have raised “red flags.” 6 J.A. 1138-39, 1142. The investigators
concluded that “there was no evidence linking Byron Halsey to
that murder scene at all, at all.” J.A. 1143. Hall was indicted
for commission of the offenses, but died while in custody before
he could be tried for the offenses involved in this case. Hall’s
attorney later represented to the prosecution that Hall had been

6
  An assistant prosecutor testifying in a deposition about the
reinvestigation of the criminal case referred to a report authored
by a Dr. Schlesinger, which none of the parties discusses in the
briefs.


                               19
prepared to confess to having committed the offenses.



            III. PROCEDURAL BACKGROUND

       Halsey’s original complaint in this case, filed in March
2009, named a number of defendants besides Pfeiffer and
Lynch, but ultimately the District Court dismissed the complaint
against all the defendants, some with Halsey’s consent or on his
motion. These additional defendants were police officers and
investigators, including Propsner and Brannon, as well as Union
County, the City of Plainfield, and the Plainfield Police
Department. Halsey has not appealed from any order dismissing
a defendant other than appellees, and thus we are concerned
only with the District Court’s February 21, 2013 order granting
appellees’ motions for summary judgment. In the portion of the
order from which Halsey appeals, the Court dismissed Halsey’s
claims of fabrication of evidence, malicious prosecution, and
coercion under 42 U.S.C. § 1983 predicated on federal
constitutional law as well as supplemental counts under N.J.
Stat. Ann. §10:6-2, et seq. 7


7
 Halsey included a section 1983 claim in his complaint based on
the law announced in Brady v. Maryland, 

, 

(1963), contending that appellees suppressed exculpatory
evidence relating to his case. Although Halsey opposed the
dismissal of his Brady civil claim at the summary judgment
proceedings, he does not seek a reversal of that dismissal on this
appeal. Thus, we do not address that claim.

                               20
       When the District Court granted Pfeiffer and Lynch
summary judgment it said that they were entitled to qualified
immunity from Halsey’s action. First, the Court held that
appellees had qualified immunity from Halsey’s due process of
law fabrication claim because this Court never expressly has
recognized such a claim as the basis for a stand-alone cause of
action, i.e., a claim not tied to a separate cause of action, and
thus appellees could not have violated established law simply by
fabricating evidence. Second, the Court granted appellees
summary judgment on Halsey’s Fourth Amendment malicious
prosecution claim because it believed that Hancock, the
prosecutor, made a reasonable and independent decision to
charge Halsey, and by this intervening act created a defense for
appellees on that claim. Finally, the Court found that Halsey’s
testimony undercut his claim that appellees coerced him into
making a false confession in violation of due process of law.
Halsey challenges these conclusions on appeal. 8



    IV.   JURISDICTION AND STANDARD OF REVIEW


8
  Although Pfeiffer and Lynch have filed separate briefs, they
have taken virtually identical positions on this appeal and
Lynch’s brief incorporates much of its argument from Pfeiffer’s
brief. For simplicity, generally when we make reference to
Pfeiffer’s contentions we intend to include Lynch’s contentions,
or we refer to “appellees’” contentions. In this regard, we note
that appellees are not at odds over the facts of the case.


                               21
       The District Court had jurisdiction under 28 U.S.C. §§
1331, 1343, and 1367; we have jurisdiction under 28 U.S.C. §
1291. 9 We exercise plenary review of the District Court’s grant
of summary judgment and the legal issues underpinning a claim
of qualified immunity. Doe v. Luzerne Cnty., 

, 174
(3d Cir. 2011); Yarris v. Cnty. of Delaware, 

, 134
(3d Cir. 2006).

        In reviewing orders entered on motions for summary
judgment, we apply the same standard as a district court, and
thus we determine whether there was any “genuine dispute as to
any material fact.” Fed. R. Civ. P. 56(a). When defendants
move for summary judgment, they bear the burden “to show that
the plaintiff has failed to establish” an essential element of his
claim. Burton v. Teleflex Inc., 

, 425 (3d Cir.
2013). At the summary judgment stage of proceedings, courts
do not “weigh the evidence or make credibility determinations,”
but, instead, leave that task to the fact-finder at a later trial if the
court denies summary judgment. Petruzzi’s IGA Supermarkets
v. Darling-Delaware Co., 

, 1230 (3d Cir. 1993).
In considering a summary judgment motion, a court must view
the evidence in the light most favorable to the non-moving party
and give that party the benefit of all reasonable inferences that
can be drawn from the evidence. 

. The

9
  After Halsey filed his initial notice of appeal, the parties
formalized an agreement that they had reached to dismiss the
case against defendants other than appellees, and the District
Court entered dismissal orders in accordance with that
agreement, making its decision granting summary judgment to
appellees a final and appealable order.

                                  22
line between reasonable inferences and impermissible
speculation is often “thin,” Fragale & Sons Beverage Co. v. Dill,

, 474 (3d Cir. 1985), but nevertheless is critical
because “an inference based upon a speculation or conjecture
does not create a material factual dispute sufficient to defeat
summary judgment.” Robertson v. Allied Signal, Inc., 

, 382 n.12 (3d Cir. 1990). Inferences must flow directly
from admissible evidence. See Anderson v. Liberty Lobby, Inc.,

, 255, 

, 2513 (1986).



                     V.     DISCUSSION

       As we noted, the District Court held that qualified
immunity shielded Pfeiffer and Lynch from liability on all three
claims that Halsey presses on this appeal. Qualified immunity
protects government officials performing discretionary functions
“from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v.
Fitzgerald, 

, 818, 

, 2738 (1982).

       A qualified immunity inquiry is two-pronged, though
courts are free to address the two elements in whichever order
they deem appropriate. Pearson v. Callahan, 

, 235,

, 818 (2009). Normally, however, in considering a
qualified immunity issue, we will ask whether a defendant’s
conduct violated a defendant’s statutory or constitutional rights
before addressing whether that law had been established at the
time of the violation so that the unlawfulness of the conduct

                               23
should have been apparent to an objectively reasonable official.
See, e.g., Showers v. Spangler, 

, 171 (3d Cir.
1999); see also 

, 129 S.Ct. at 818
(recognizing that addressing the two elements in the traditional
order is “often beneficial”). 10

       Unlike some other courts, 11 we follow the general rule of

10
   Like the District Court, we acknowledge the preference for
resolving qualified immunity questions “at the earliest possible
stage in litigation,” preferably before discovery. 

, 129 S.Ct. at 815 (citation and internal quotation
marks omitted). We recognize this preference because, as the
Supreme Court has explained, “qualified immunity is an
immunity from suit rather than a mere defense to liability . . . .
[I]t is effectively lost if a case is erroneously permitted to go to
trial.” 

at 815 (internal citation and quotation marks
omitted).
11
  See, e.g., Becker v. Bateman, 

, 1022 (10th Cir.
2013) (“This court reviews summary judgments based on
qualified immunity differently than other summary judgments.
When a defendant asserts qualified immunity at summary
judgment, the burden shifts to the plaintiff . . . .” (internal
quotation marks omitted)); Crosby v. Monroe Cnty., 

, 1332 (11th Cir. 2004) (“Once the official has established
that he was engaged in a discretionary function, the plaintiff
bears the burden of demonstrating that the official is not entitled
to qualified immunity.”). We note, however, that our result on
this appeal would not be different if we placed the burden on
Halsey to demonstrate that appellees were not entitled to

                                24
placing the burden of persuasion at a summary judgment
proceeding on the party asserting the affirmative defense of
qualified immunity. See, e.g., Reedy v. Evanson, 

,
223 (3d Cir. 2010) (“The burden of establishing entitlement to
qualified immunity is on [the defendant-movant].”); Bailey v.
Pataki, 

, 404 (2d Cir. 2013)
(“Qualified immunity is an affirmative defense and the burden is
on the defendant-official to establish it on a motion for summary
judgment.”); see also 

, 102 S.Ct. at 2735
(“The burden of justifying absolute immunity rests on the
official asserting the claim.” (emphasis added)). Thus, appellees
either had to show that there was no genuine dispute of material
fact to refute their contention that they did not violate Halsey’s
constitutional rights as he asserted them, or show that reasonable
officers could not have known that their conduct constituted
such a violation when they engaged in it.

A.     Fabrication of Evidence

        The first claim on this appeal presents two purely legal
questions: Did the appellees violate Halsey’s constitutional
right to due process of law under the Fourteenth Amendment by
fabricating evidence to justify his prosecution? And, if so, was
that Fourteenth Amendment right so clearly established by 1985,
when appellees allegedly fabricated Halsey’s oral confession,
that reasonable officers would have known that their conduct in
fabricating evidence would violate that right?



qualified immunity.

                               25
        Appellees argue that they cannot be held liable either for
fabricating Halsey’s confession, because it “only had relevance
once signed,” or for writing their reports describing the
investigation, because they wrote those reports after the
prosecutor already had filed the charges against Halsey.
Pfeiffer’s br. at 30. Those contentions besides being
unpersuasive, come too late. They inform only the first prong of
the qualified immunity inquiry—i.e., whether appellees
committed a constitutional violation—but the appellees did not
address that prong in the District Court. Before that Court they
addressed only the second prong of a qualified immunity claim,
i.e., whether reasonable officers would have known that their
conduct violated a defendant’s statutory or constitutional rights.
 Thus, the District Court did not consider whether appellees had
a qualified immunity defense based on the first prong of that
defense and appellees have not preserved any contention that
they had a defense on that basis. See, e.g., United States v.
Dupree, 

, 727 (3d Cir. 2010) (confirming the “well-
established proposition that arguments not raised in the district
courts are waived on appeal”).

       But even if they had preserved their new contentions they
would be meritless for two reasons. First, the contention that a
defendant’s oral confession is irrelevant until there is a signed
written confession is simply wrong. Evidence of oral
confessions can be admissible in criminal trials, particularly if
the confessing defendant has waived his Miranda rights. See,
e.g., United States v. Oba, 

, 1130 (9th Cir. 1992)
(“Oba signed a waiver form and gave an oral statement. Thus,
his confession was admissible.”); see also 18 U.S.C. § 3501(e)
(including both oral and written confessions as admissible in

                               26
federal criminal proceedings).

        Second, for purposes of summary judgment, appellees
engaged in conduct before Halsey signed the purported
confession and before the prosecutor charged him with
commission of the crimes that later injured him. Appellees
allegedly inserted nonpublic facts about the crime (of which
Halsey could not have been aware) into a detailed oral
confession that Halsey maintains he never made. Their
purported fabrication was double-edged: they told the prosecutor
that Halsey had confessed even though he had not done so, and
they included critical details in the confession to enhance its
credibility in order to induce the prosecutor to proceed against
Halsey. Accordingly, even if appellees’ contention that oral
confessions have no “relevance” were correct in the abstract, as
already noted, Halsey’s confession was quite relevant because it
played a crucial role in the prosecutor’s decision to charge
him. 12


12
   Lynch’s counsel at oral argument contended that we should
affirm the dismissal of the fabrication count against his client by
arguing his client was not in the interview room at the time of
the alleged fabrication. Lynch has waived this contention
because he did not make it in the District Court and has raised it
for the first time on this appeal. See United States v. Voigt, 

, 1064 n.4 (3d Cir. 1996). But even if Lynch
preserved the contention, it would be meritless in these summary
judgment proceedings. Although, according to Pfeiffer, Halsey
initially confessed to him alone, Lynch entered the room when
Halsey made the detailed—and purportedly fabricated—

                                 27
       We thus turn to the legal question of whether a state actor
engages in actionable conduct simply by fabricating evidence.
The District Court held that he does not do so because, in the
Court’s view, malicious prosecution claims that often
accompany fabrication claims subsume the fabrication claims.
The Court believed that this Court has not recognized that
fabrication claims standing alone are actionable under 42 U.S.C.
§ 1983, and it therefore reasoned that appellees could not have
violated established law in 1985 by fabricating evidence. We
disagree. When falsified evidence is used as a basis to initiate
the prosecution of a defendant, or is used to convict him, the
defendant has been injured regardless of whether the totality of
the evidence, excluding the fabricated evidence, would have
given the state actor a probable cause defense in a malicious
prosecution action that a defendant later brought against him.
We thus pass to the question of whether a state actor can be
liable on a stand-alone claim for fabrication of evidence or
whether a defendant’s fabrication claim must be included as an
aspect of a malicious prosecution claim.

       1. Whether There is an Independent Prohibition Against
Fabricating Evidence

       Appellees concede that a criminal defendant has been
denied due process of law if he is convicted on the basis of
fabricated evidence. Pfeiffer br. at 34 (“It is undisputed that

statement that was passed page-by-page (either by Lynch or
Pfeiffer) to Hancock, the prosecutor. Thus, the record supports
a conclusion that Lynch played a role nearly as central as that of
Pfeiffer in the fabrication of the confession.

                               28
fabrication of evidence can violate the Constitution. . . .”). They
further agree that a defendant can seek redress for violation of
this right through a civil action under 42 U.S.C. § 1983, though
they maintain that he can do so only by bringing the fabrication
claim as part of a malicious prosecution claim. Thus, appellees
contend that the two claims are intertwined and that the former
can exist only as a portion of the latter.

       The District Court agreed with this position in reliance on
several district court opinions as well as our opinion in Johnson
v. Knorr, 

(3d Cir. 2007). But Johnson does not
stand for the proposition that the District Court ascribed to it, to
wit that we have “recognize[ed] a fabrication of evidence claim
as one for malicious prosecution.” Halsey, 

, at
*8. In Johnson, the plaintiff-appellant, Gamal Johnson, fused
his fabrication of evidence and malicious prosecution claims by
arguing that the district court had erred in dismissing his
malicious prosecution count that he based in part on allegations
that evidence against him was fabricated. See 

. But Johnson did not argue that a fabrication claim
could give rise to a stand-alone cause of action, and,
accordingly, we did not address that issue. We will do so today.

        Section 1983 provides a civil remedy for the “deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983. To state a claim
under section 1983, a plaintiff must demonstrate that “some
person has deprived him of a federal right . . . [and] that the
person who has deprived him of that right acted under color of
state or territorial law.” Gomez v. Toledo, 

, 640,

, 1923 (1980). Appellees do not contend that

                                29
they were not acting under the color of state law when they
questioned Halsey during their investigation of the murders and,
as we have noted, they acknowledge that by fabricating evidence
a state actor violates a criminal defendant’s constitutional rights.


        But the parties disagree over the identification of the
constitutional right implicated in a fabrication case. This
identification can be important. Appellees maintain that a state
actor by fabricating evidence violates only the Fourth
Amendment and its protection against unlawful seizures, 13 and
the violation is redressable, as we have indicated that they have
asserted, only by bringing a case for malicious prosecution. 14

13
     The Fourth Amendment provides that:

         The right of the people to be secure in their
         persons, houses, papers, and effects, against
         unreasonable searches and seizures, shall not be
         violated, and no Warrants shall issue, but upon
         probable cause, supported by Oath or affirmation,
         and particularly describing the place to be
         searched, and the persons or things to be seized.
14
  For two reasons our discussion of malicious prosecution, as
distinguished from our discussion of fabrication of evidence,
will center on the Fourth Amendment rather than on the
Fourteenth Amendment. First, while Halsey pled both Fourth
and Fourteenth Amendment malicious prosecution counts, at
some point in the proceeding—certainly by the time of the
appeal—he abandoned the Fourteenth Amendment iteration of

                                30
the malicious prosecution claim, thus obviating the need for us
to decide its viability. Compare Torres v. McLaughlin, 

, 173 (3d Cir. 1998) (reaffirming that section 1983 malicious
prosecution claims cannot be based on substantive due process
but declining to decide whether they could be grounded in
procedural due process), with Gallo v. City of Philadelphia, 

, 222 (3d Cir. 1998) (suggesting that Supreme Court
case law leaves only the Fourth Amendment as potential source
of malicious prosecution claims). In addition, neither Halsey
nor appellees point to other constitutional provisions covering
malicious prosecutions. See, e.g., Merkle v. Upper Dublin Sch.
Dist., 

, 792-93 (3d Cir. 2000) (analyzing malicious
prosecution claims predicated on the First and Sixth
Amendments).

        Second, though appellees mention in passing and in
general terms other causes of action that potentially could
subsume evidence-fabrication claims—namely, false arrests
(Pfeiffer’s br. at 32; Lynch’s br. at 20) and claims pursuant to
Brady v. Maryland, 

, 

(1963)
(Pfeiffer’s br. at 34)—for purposes of this case, they focus
exclusively on the Fourth Amendment malicious prosecution
theory. Furthermore, the Fourth Amendment is the only
constitutional predicate that the District Court found covered
Halsey’s evidence-fabrication count. Halsey, 

,
at *8-9. In these circumstances, we, too, will focus on the
Fourth Amendment when discussing malicious prosecutions
claims. We add, however, that even if a fabrication claim could
be tied to a claim under a constitutional provision other than the
Fourth Amendment, we would see no reason why the fabrication

                               31
Pfeiffer’s br. at 30-31. See 

-82. Halsey,
however, grounds the right to be free from fabricated evidence
on the Fourteenth Amendment’s guarantee of due process of
law. 15 Appellant’s br. at 25-26.

       The boundary between Fourth Amendment and
Fourteenth Amendment claims is, at its core, temporal. The
Fourth Amendment forbids a state from detaining an individual
unless the state actor reasonably believes that the individual has
committed a crime—that is, the Fourth Amendment forbids a
detention without probable cause. See, generally, Bailey v.
United States, __ U.S. __, 

, 1037 (2013). But this
protection against unlawful seizures extends only until trial. See
Schneyder v. Smith, 

, 321 (3d Cir. 2011)
(observing that post-conviction incarceration does not implicate
the Fourth Amendment). The guarantee of due process of law,
by contrast, is not so limited as it protects defendants during an
entire criminal proceeding through and after trial. Pierce v.
Gilchrist, 

, 1285-86 (10th Cir. 2004) (“The initial

claim could not stand alone.
15
     The Fourteenth Amendment guarantees, in relevant part:

         No state shall make or enforce any law which
         shall abridge the privileges or immunities of
         citizens of the United States; nor shall any state
         deprive any person of life, liberty, or property,
         without due process of law . . . .



                                32
seizure is governed by the Fourth Amendment, but at some point
after arrest, and certainly by the time of trial, constitutional
analysis shifts to the Due Process Clause.” (internal citation
omitted)).

        In the future we may be called on to chisel more finely
the lines between the two claims—thus we might be required to
decide precisely when an unlawful seizure “ends and [a] due
process . . . [violation] begins.” 

. But
we are spared the burden of doing so now because the fabricated
confession obviously injured Halsey long after he suffered an
injury attributable to his pre-trial detention. In his complaint,
Halsey alleged that the fabrication of evidence resulted in an
unfair trial and his wrongful conviction that, in turn, led to his
incarceration. He supported these allegations opposing the
summary judgment motions with evidence that the confession
was fabricated, that it was the key ingredient to securing his
indictment and conviction, and that it was the reason he spent 22
years in prison, almost 20 of which he served after his wrongful
conviction. Wherever the boundary between the Fourth and
Fourteenth Amendment claims lies, it is in the rear view mirror
by the end of trial, when Fourth Amendment rights no longer are
implicated. See, e.g., 

; Donahue v.
Gavin, 

, 382 (3d Cir. 2002) (disallowing recovery
for post-conviction injuries based on the Fourth Amendment);
Torres v. McLaughlin, 

, 174 (3d Cir. 1998) (“At
most, there may be some circumstances during pre-trial
detention that implicate Fourth Amendment rights; however, we
refer to the Fourth Amendment as applying to those actions
which occur between arrest and pre-trial detention.”).


                               33
        Accordingly, at least some of Halsey’s allegations
stemming from the alleged oral confession do not fall under the
traditional definition of a Fourth Amendment malicious
prosecution claim. See 

-82. 16 We
therefore must decide whether his fabrication claim can be
grounded on the due process clause of the Fourteenth
Amendment.

        On this score, appellees have little to offer. To the best
of our knowledge, every court of appeals that has considered the
question of whether a state actor has violated the defendant’s
right to due process of law by fabricating evidence to charge or
convict the defendant has answered the question in the
affirmative. See Whitlock v. Brueggemann, 

, 585
(7th Cir. 2012) (collecting court of appeals cases). 17 We join

16
  See also Albright v. Oliver, 

, 271 n.4, 

, 811 n.4 (1994) (collecting courts of appeals’ cases dealing
with treatment of malicious prosecution claims under section
1983); Washington v. Cnty. of Rockland, 

, 316 (2d
Cir. 2004) (“[T]o sustain a § 1983 malicious prosecution claim,
there must be a seizure or other perversion of proper legal
procedures implicating the claimant’s personal liberty and
privacy interests under the Fourth Amendment.” (internal
quotation marks omitted)).
17
  See also Washington v. Wilmore, 

, 283 (4th Cir.
2005) (holding that a conviction and incarceration resulting
from fabricated evidence may violate due process); Limone v.
Condon, 

, 45 (1st Cir. 2004) (observing that actions
involving fabricating evidence and framing individuals

                               34
these courts in expressly adopting this principle.

        A different view is not just unsupported; it is untenable.
Adoption of the District Court’s conclusion would mean that
there would not be a redressable constitutional violation when a
state actor used fabricated evidence in a criminal proceeding if
the plaintiff suing the actor could not prove the elements of a
malicious prosecution case, such as the lack of probable cause
for the prosecution. See 

. We need not
look beyond this case for a basis to reject appellees’ contention
that evidence-fabrication claims must be tied to malicious
prosecution cases. The District Court concluded that there was

“necessarily violate due process”); Wilson v. Lawrence Cnty.,

, 954 (8th Cir. 2001) (“If officers use false
evidence, including false testimony, to secure a conviction, the
defendant’s due process is violated.”); Devereaux v. Abbey, 

, 1074-75 (9th Cir. 2001) (en banc) (“[T]here is a
clearly established constitutional due process right not to be
subjected to criminal charges on the basis of false evidence that
was deliberately fabricated by the government.”); Ricciuti v.
N.Y.C. Transit Auth., 

, 130 (2d Cir. 1997) (“Like a
prosecutor’s knowing use of false evidence to obtain a tainted
conviction, a police officer’s fabrication and forwarding to
prosecutors of known false evidence works an unacceptable . .
.[violation of due process.]”); United States v. Lochmondy, 

, 822 (6th Cir. 1989) (“The knowing use of false or
perjured testimony constitutes a denial of due process if there is
any reasonable likelihood that the false testimony could have
affected the judgment of the jury.”).

                               35
probable cause to charge Halsey even without considering his
confession. 18 Even if we agreed with this conclusion (and we
do not), we believe that no sensible concept of ordered liberty is
consistent with law enforcement cooking up its own evidence.

        We emphatically reject the notion that due process of law
permits the police to frame suspects. Indeed, we think it self-
evident that “a police officer’s fabrication and forwarding to
prosecutors of known false evidence works an unacceptable
‘corruption of the truth-seeking function of the trial process.’”

alia, United States v. Agurs, 

, 104,

, 2397 (1976)). Requiring that a plaintiff join a
fabrication claim with a malicious prosecution claim would
come close to making “a mockery of the notion that Americans
enjoy the protection of due process of the law and fundamental
justice.” Ricciuti v. N.Y.C. Transit Auth., 

, 130
(2d Cir. 1997).

       We could not reconcile a contrary conclusion with the
mandate of section 1983 that guarantees defendants (and other
persons as well) against “deprivation of any rights . . . secured
by the Constitution.” 42 U.S.C. § 1983 (emphasis added). As
the Supreme Court has explained, section 1983 was intended “to
deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to
provide relief to victims if such deterrence fails.” Wyatt v.
Cole, 

, 161, 

, 1830 (1992). A rule of

18
  The District Court, referring to the fabricated confession, said
that “there were facts independent of the tainted evidence . . . to
establish probable cause.” Halsey, 

, at *6.

                                36
law foreclosing civil recovery against police officers who
fabricate evidence, so long as they have other proof justifying
the institution of the criminal proceedings against a defendant,
would not follow the statute’s command or serve its purpose.

       Against these settled principles and overwhelming
precedent, appellees cite district court decisions that fall into
two categories, but both categories are distinguishable from this
case. Pfeiffer’s br. at 30-32. In the first group, the cases merely
demonstrate that a single set of factual allegations can contribute
to more than one claim. For instance, one case that Pfeiffer
cites, Pfeiffer’s br. at 31, explained that falsification of
evidence, like other “bad-faith conduct,” can be “probative of a
lack of probable cause.” Peterson v. Bernardi, 

, 428 (D.N.J. 2010). But that view is reconcilable with a
conclusion that there is an independent falsification claim for
“[c]ertain wrongs affect more than a single right and,
accordingly, can implicate more than one of the Constitution’s
commands.” Soldal v. Cook Cnty., 

, 70, 

, 548 (1992); see also Gregory v. City of Louisville, 

, 750-54 (6th Cir. 2006) (reversing district court’s
conclusion that one factual premise could not form the bases of
separate claims of constitutional violations under section 1983).

        The second group of cases that appellees cite involve
plaintiffs against whom the germane criminal charges were
dismissed before trial. See, e.g., Molina v. City of Lancaster,

(E.D. Pa. 2001). These decisions are
inapposite here because, as we noted earlier, we do not decide
today whether pre-trial detentions can implicate constitutional
rights beyond the Fourth Amendment inasmuch as we are

                                37
dealing with injuries that go far beyond the injury to Halsey
attributable to his pre-trial detention.

        To be sure, some courts have expressed uncertainty as to
whether section 1983 evidence-fabrication claims can stand
alone, and Zahrey v. City of N.Y., No. 98-4546, 

, at *36 n.47 (S.D.N.Y. Jan. 7, 2009), helpfully collects
some of those cases. Zahrey points out that “[t]here seems to be
some question in [the Second Circuit] as to whether evidence
fabrication creates a section 1983 cause of action separate and
apart from a malicious prosecution action.” But at least some of
the courts that treat fabrication and malicious prosecution claims
together, as the Court of Appeals for the Second Circuit
appeared to have done in Jocks v. Tavernier, 

(2d
Cir. 2003), have done so in circumstances that we already have
distinguished, namely where the evidence-falsification did not
result in a conviction or where a plaintiff did not clearly advance
a claim predicated on fabrication alone. In any event, we reject
the contention that there cannot be a stand-alone Fourteenth
Amendment claim predicated on the fabrication of evidence.

        We find much support for our conclusion. For example,
the Court of Appeals for the Fifth Circuit has found jury
instructions “deeply flawed” when they limited the jury’s use of
fabricated evidence to evaluate a Fourth Amendment malicious
prosecution claim without allowing a finding of a Fourteenth
Amendment due process violation. Castellano v. Fragozo, 

, 955 (5th Cir. 2003) (en banc). See also Lowery v.
Cnty. of Riley, 

, 1093 (10th Cir. 2008) (affirming
district court’s denial of qualified immunity for claims of
fabrication of evidence and malicious prosecution); Riley v. City

                                38
of Montgomery, 

, 1253-54 (11th Cir. 1997)
(permitting a fabrication-of-evidence claim to go forward
against one defendant while rejecting malicious prosecution
claim against others); Stemler v. City of Florence, 

,
872 (6th Cir. 1997) (holding that knowing use of fabricated
evidence violates a criminal defendant’s right to due process and
is actionable “if there is a reasonable likelihood that the false
evidence could have affected the judgment of the jury”). As
these cases show, we are not the first court to reach our
conclusion.

      Accordingly, we hold that if a defendant has been
convicted at a trial at which the prosecution has used fabricated
evidence, the defendant has a stand-alone claim under section
1983 based on the Fourteenth Amendment if there is a
reasonable likelihood that, without the use of that evidence, the
defendant would not have been convicted. 19 Appellees do not

19
  We use “reasonable likelihood” to emphasize that plaintiffs
bringing fabrication claims must draw a meaningful connection
between their conviction and the use of fabricated evidence
against them. See 42 U.S.C. § 1983 (imposing liability on any
official who violates or “causes to” violate a person’s
constitutional right). As the Court of Appeals for the Seventh
Circuit recently explained, this causal link is a familiar concept
in tort law, requiring both factual and proximate causation.

; see also 

(“It is well established that a person’s constitutional rights are
violated when evidence is knowingly fabricated and a
reasonable likelihood exists that the false evidence would have
affected the decision of the jury.” (Emphasis added.) The

                               39
argue that the false confession attributed to Halsey, which the
prosecutor acknowledged in the state courts was the only direct
evidence linking Halsey to the crimes, could not have affected
the jury’s verdict. As a result, we have no difficulty in
concluding that Halsey has demonstrated that there is a genuine
dispute of material fact on the question of whether appellees
violated his right to due process of law by fabricating evidence
against him. Thus, the District Court erred when it granted
summary judgment to appellees on the fabrication claim.

        In reaching our result, we hasten to add that courts in this
Circuit should not permit a criminal defendant who later brings
a civil action against state actors who had been involved in his

requirement is in line with our own precedent, though until
today we have not had occasion to apply it in the fabrication
context. See, e.g., Lamont v. New Jersey, 

, 185 (3d
Cir. 2011) (“Like a tort plaintiff, a § 1983 plaintiff must
establish both causation in fact and proximate causation.”).
Because the record at summary judgment established that
Halsey’s fabricated confession was critical to his conviction, we
do not decide whether the mere introduction of falsified
evidence at trial—without regard to its significance in the
context of other evidence considered by the jury—is necessarily
sufficient to satisfy the causal link. Nor do we decide whether a
defendant acquitted at a trial where fabricated evidence has been
used against him has an actionable section 1983 claim. We
note, however, that if fabricated evidence is used as a basis for a
criminal charge that would not have been filed without its use
the defendant certainly has suffered an injury.


                                40
prosecution to use this opinion beyond the scope of our holding.
 Thus, a civil plaintiff alleging that he had been convicted in a
criminal prosecution in which the prosecutor used fabricated
evidence should not be permitted to survive a motion for
summary judgment or for judgment as a matter of law unless he
can demonstrate that the record supports a conclusion that the
allegedly fabricated evidence was so significant that it could
have affected the outcome of the criminal case. 20 Moreover,
testimony that is incorrect or simply disputed should not be
treated as fabricated merely because it turns out to have been
wrong. Therefore, for example, a witness’s misidentification
should not be regarded as a fabrication in the absence of
persuasive evidence supporting a conclusion that the proponents
of the evidence were aware that the identification was incorrect,
and thus, in effect, offered the evidence in bad faith.
Accordingly, we expect that it will be an unusual case in which
a police officer cannot obtain a summary judgment in a civil
action charging him with having fabricated evidence used in an
earlier criminal case. But we deal here with such a case. See
Whitlock v. Brueggemann, 

, 586 (7th Cir. 2012).

       2. Whether the Law Was Clearly Established in 1985

20
  We, of course, are not suggesting that there is nothing wrong
with the fabricating of evidence if it does not affect the final
verdict. We do not have occasion to consider what legal
mechanisms may be available to discipline police officers who
corruptly try to change the outcome of a case but fail either
because the jury returns a not guilty verdict or because the jury
would have returned a guilty verdict even without the fabricated
evidence.

                               41
       Our foregoing conclusion recognizing the existence of a
stand-alone section 1983 Fourteenth Amendment claim
predicated on the use of fabricated evidence does not end our
inquiry into whether the District Court erred in dismissing
Halsey’s fabrication count. Appellees also argue that because,
back in 1985, we had not explicitly recognized Fourteenth
Amendment stand-alone claims based on the fabrication of
evidence, they are entitled to a qualified immunity defense on
the fabrication of evidence claim as “it would not [have been]
known to an officer what the elements of such a claim are or
how it would be applied and analyzed by a court.” Pfeiffer br. at
35. We disagree.

       The established-right prong of a qualified immunity
defense does not demand that there had been a precise preview
of the applicable legal analysis underlying the defense; rather,
“what is required is that government officials have ‘fair and
clear warning’ that their conduct is unlawful.” 

(quoting United States v. Lanier, 

,
271, 

, 1227 (1997)).

       Analogous precedent should have informed appellees or
any reasonable state actor that, by fabricating evidence for use in
a criminal prosecution, a state actor would violate a defendant’s
constitutional rights regardless of whether or not the state actor
violated other constitutional rights of the defendant. The
Supreme Court established decades before the original
investigation in this case that the Constitution forbids
prosecutors from knowingly using perjured testimony to secure
a criminal conviction. See 

v. Kansas, 

, 216, 

(1942)); see also Miller v. Pate, 

1, 7, 

, 788 (1967) (“More than 30 years ago this
Court held that the Fourteenth Amendment cannot tolerate a
state criminal conviction obtained by the knowing use of false
evidence.”). Investigators, including appellees, should have
known long before Halsey’s prosecution that they would be
violating a defendant’s constitutional rights if they knowingly
used fabricated evidence to bring about his prosecution or to
help secure his conviction, particularly if the investigators
themselves had fabricated the evidence. Cf. 

(“[T]he wrongfulness of charging someone on the
basis of deliberately fabricated evidence is sufficiently obvious,
and Pyle is sufficiently analogous, that the right to be free from
such charges is a constitutional right.”). Indeed, it has been an
axiomatic principle of our justice system that “those charged
with upholding the law are prohibited from deliberately
fabricating evidence and framing individuals for crimes they did
not commit.” Limone v. Condon, 

, 45 (1st Cir.
2004). As the Court of Appeals for the First Circuit said in
Limone, “we are unsure what due process entails if not
protection against deliberate framing under color of official
sanction.” 

of this violation would be difficult to
escape even without the closely analogous Supreme Court
precedent discussed above. By the time appellees allegedly
fabricated Halsey’s confession, more than two decades had
passed since the Supreme Court had held that the due process
clause required that the prosecution reveal exculpatory evidence
to a criminal defendant. Brady v. Maryland, 

, 

(1963). Reasonable officers should have known that
if they could not withhold exculpatory evidence from a

                               43
defendant, they certainly could not fabricate inculpatory
evidence against a suspect or defendant.

       For these reasons, we will reverse the District Court’s
entry of summary judgment dismissing Halsey’s fabricated-
evidence claim.

B.     Malicious Prosecution

       The District Court also entered summary judgment on
Halsey’s Fourth Amendment malicious prosecution claim. It
reasoned that the prosecutor, Hancock, “used independent
judgment in deciding to prosecute” Halsey because, when
Hancock made his decision, “he was unaware of the alleged oral
confession given to Pfeiffer earlier that day.” Halsey, 

, at *5. In addition, the Court concluded that even
without his confession there was probable cause to prosecute
Halsey. The Court also noted that even if there had not been
probable cause for the prosecution, “the fault lies with Hancock”
alone because he made his decision to proceed before Halsey
signed his confession, which, in the Court’s view, cleared
appellees of any wrongdoing that justified the malicious
prosecution action against them. 

We disagree with
each of these conclusions.

      To prevail on a Fourth Amendment malicious
prosecution claim under section 1983, a plaintiff must establish
that:

       (1) the defendant initiated a criminal proceeding;
       (2) the criminal proceeding ended in [the


                               44
       plaintiff’s] favor; (3) the defendant initiated the
       proceeding without probable cause; (4) the
       defendant acted maliciously or for a purpose other
       than bringing the plaintiff to justice; and (5) the
       plaintiff suffered deprivation of liberty consistent
       with the concept of seizure as a consequence of a
       legal proceeding.

; see also Rose v. Bartle, 

,
349 (3d Cir. 1989).

       As the District Court noted, appellees have conceded for
purposes of the motions for summary judgment that most of
these elements of a malicious prosecution case are present in
this case and, in any event, even without that concession it is
apparent that they are present. Consequently, we limit our
review to the two questions in dispute: (1) whether Hancock
engaged in intervening acts that severed the causal nexus tying
appellees to the initiation of the prosecution; and (2) whether
there would have been probable cause to charge Halsey absent
his confession. If Hancock’s actions did not absolve appellees
of potential liability and the evidence was insufficient to
establish conclusively that appellees had probable cause to bring
charges against Halsey, once the fabricated confession was
excluded, the District Court should not have granted appellees’
motions for summary judgment against Halsey on his malicious
prosecution claim. 21


21
  We reiterate that our repeated reference to the confession as
fabricated is only for purposes of our review of the disposition

                               45
           1. Causation

        It is settled law that “officers who conceal and
misrepresent material facts to the district attorney are not
insulated from a § 1983 claim for malicious prosecution simply
because the prosecutor, grand jury, trial court, and appellate
court all act independently to facilitate erroneous convictions.”

; see also 

;
Jones v. City of Chicago, 

, 994 (7th Cir. 1988). If
the officers influenced or participated in the decision to institute
criminal proceedings, they can be liable for malicious
prosecution. Sykes v. Anderson, 

, 308-09, 317 (6th
Cir. 2010). 22 The District Court recognized this precedent but

of the summary judgment motions.
22
   We need not decide how strong the connection must be
between a police officer’s misconduct and the defendant’s
eventual prosecution for the officer to be liable in a malicious
prosecution action. Compare Robinson v. Maruffi, 

, 656 (10th Cir. 1990) (requiring police officers to have been
“instrumental” in the confinement and prosecution of the
plaintiff (quoting 

)), and Peterson v.
Bernardi, 

, 431 n.12 (D.N.J. 2010) (“[T]here
must be a showing that the misconduct significantly contributed
to the decision to prosecute.”), with 

(requiring only that officers “influence[d]” the decision to
prosecute), and 

(requiring officers to
have “played a role” in the initiation of the prosecution). As we

                                46
found it inapplicable because, in its view, the uncontroverted
evidence established that Hancock reached his decision to
prosecute Halsey without regard for the effect of appellees’
alleged misconduct.

        The record, however, does not justify the District Court’s
conclusion, for there were disputed factual issues barring a
granting of summary judgment. See, e.g., Robinson v. Maruffi,

, 655-56 (10th Cir. 1990) (finding sufficient
evidence to require that the jury decide whether prosecutor and
courts were intervening actors that broke causal link between
falsified statements produced by police officers and plaintiff’s
conviction). Hancock testified at the criminal trial (and later
reaffirmed in his deposition in this case) that on November 16
he began drafting the criminal complaint at around 11:00 p.m.,
about five hours after Pfeiffer first told Lynch that Halsey had
confessed, and about an hour and a half before Halsey signed
the incriminating third statement. Standing alone timing would
suggest that Hancock knew that Halsey had confessed when he
started drafting the complaint, inasmuch as it would be
reasonable to draw an inference that appellees would have
advised Hancock, as the prosecuting attorney, of the confession.
 After all, they surely must have regarded their obtaining of the

explain below, the evidence viewed in the light most favorable
to Halsey supports the conclusion that Hancock charged Halsey
precisely because he believed that Halsey had confessed.
Consequently, we conclude that, at this stage of the proceedings,
on the basis of the record now before us, that appellees’
misconduct was a significant cause of the prosecution.


                               47
confession as a major, indeed pivotal development in the case,
as it undoubtedly was.

       We recognize that at the trial that will follow the remand
that we are requiring, appellees might argue that Hancock’s
action (drafting the complaint) lagged behind his thought
process (his decision to charge Halsey) so that the confession
did not contribute to his decision to file the complaint. But,
without evidence to support this theory at this stage of the
proceedings, we cannot affirm the District Court’s order
granting the motions for summary judgment on a delay-in-
drafting theory for if we did so we would be grounding our
determination on pure speculation.

        In fact, when we view the events surrounding the
initiation of the criminal proceedings against Halsey from
Hancock’s perspective, it is clear that the District Court erred in
granting summary judgment on the theory that Hancock was an
independent actor whose conduct severed the causal link
between appellees’ misconduct and the filing of the charges. As
Hancock described the scene during the time when Halsey
allegedly was confessing, he sat outside of the interrogation
room, unable to hear what was being said inside, relying
exclusively on each page of Halsey’s alleged confession as
appellees slid it to him. At the time, Hancock believed that
those pages represented an accurate account of what Halsey was
telling appellees—that the pages, in fact, contained virtually
verbatim quotes from Halsey.

        At some point Hancock believed that the evidence
justified the initiation of criminal proceedings against Halsey.

                                48
He testified that he decided to bring those charges after
reviewing at least a few pages of the statement that appellees
had drafted, though he could not recall how many pages he had
read by 11:00 p.m., when he began drafting the criminal
complaint. 23 Hancock indicated in his deposition that if he had
not believed that Halsey had made an oral confession, he would
not have charged him “that night probably,” a decision that was
consistent with his normal practice of waiting to see a
confession when he knows one is forthcoming. J.A. 793, 799.
Hancock also testified that evidence was not uncovered later
that would have convinced him to prosecute Halsey.

        Moreover, the contents of Halsey’s purported confession
encouraged Hancock to initiate Halsey’s prosecution. Hancock
testified in his deposition that Halsey’s knowledge of the
nonpublic facts about the crime—facts that a rational jury now
could conclude appellees inserted into the confession—
influenced his decision to charge Halsey because those details
corroborated the confession. In fact, Hancock testified that he

23
  This testimony also undercuts Lynch’s suggestion that he had
a qualified immunity defense to Halsey’s malicious prosecution
and coercion claims on the theory that he had not been present
prior to Halsey’s oral confession to Pfeiffer. Lynch’s br. at 3-5,
12-13. Halsey has maintained that he never orally confessed,
and that he admitted to the crime only when he signed his third
statement. Thus, at this stage of the proceedings, we regard
Lynch as having been in the room during the most critical time
of the interrogation for purposes of all three claims—when he
could have coerced Halsey, fabricated a confession, and
contributed to the initiation of the prosecution.

                               49
“wouldn’t authorize a complaint against someone if they
confessed to something that could not be corroborated by other
evidence. An uncorroborated statement by a defendant, in my
estimation, is worthless.” J.A. 752-53.

       One reasonable—and compelling—view of all of this
evidence is just the opposite of the one the District Court
reached: Hancock charged Halsey precisely because he thought
Halsey had confessed. Hancock’s testimony shows that
appellees’ fabrication potentially influenced his decision in two
ways: first, by appellees’ summary of Halsey’s purported oral
confession, and second by their inclusion of nonpublic facts in
the confession—facts known only to the murderer or, even more
significantly, to the police. The record does not support the
District Court’s conclusion that Hancock was “unaware of
[Halsey’s] alleged oral confession.” Halsey, 

,
at *5. Moreover, the Court on the summary judgment motions
unjustifiably held that Hancock “used independent judgment in
deciding to prosecute [Halsey],” 

that it should
not have reached as the evidence reasonably could have
supported a finding that Hancock’s judgment was very much
influenced by the detailed confession, which at this stage of
these proceedings, we must treat as fabricated.

        Our holding also requires us to reject the District Court’s
separate conclusion that, even if Hancock lacked probable cause
for initiation of the case against Halsey, Hancock alone should
be liable for malicious prosecution. As we have observed, on
the record before us, a rational jury could decide that appellees
tainted the probable-cause inquiry: the officers allegedly handed
Hancock a critical piece of fabricated evidence (the confession)

                                50
that, when combined with other information known to Hancock
well might have been enough to lead him to file the criminal
complaint. Halsey’s malicious prosecution case against
appellees therefore should have survived a causation inquiry on
the motions for summary judgment. Consequently, we next will
address the question of whether, in the absence of the
confession, there would have been probable cause to proceed
against Halsey.

           2. Probable Cause

        We are convinced that the District Court improperly
resolved factual disputes and weighed the evidence to reach its
conclusion that there would have been probable cause to charge
Halsey even without his confession. “While ‘the probable-cause
standard is incapable of precise definition or quantification,’ all
interpretations of probable cause require a belief of guilt that is
reasonable, as opposed to certain.” Wright v. City of
Philadelphia, 

, 602 (3d Cir. 2005) (internal
citations omitted) (quoting Maryland v. Pringle, 

,
371, 

, 800 (2003)). “[T]he evidentiary standard for
probable cause is significantly lower than the standard which is
required for conviction.” 

It is therefore irrelevant in
a probable cause inquiry “whether a person is later acquitted of
the crime for which she or he was arrested.” 

causation question, a probable cause inquiry is
entirely objective. 24 See, e.g., Kulwicki v. Dawson, 

  The District Court appeared to engage in a subjective analysis
by focusing not just on Hancock’s perspective, but also on his

                                51
1454, 1468 (3d Cir. 1992). Thus, Hancock’s view of the
evidence is relevant only to the extent it explains what facts
were available to him when he made his discretionary decision
to initiate the proceedings against Halsey. See Devenpeck v.
Alford, 

, 153, 

, 593 (2004) (“[A]n
arresting officer’s state of mind (except for the facts that he
knows) is irrelevant to the existence of probable cause.”); see
also Bordenkircher v. Hayes, 

, 364, 

,
668 (1978) (explaining that, so long as there is probable cause, a
decision to charge or prosecute “rests entirely in [the
prosecutor’s] discretion”).

        Courts should exercise caution before granting a
defendant summary judgment in a malicious prosecution case
when there is a question of whether there was probable cause for
the initiation of the criminal proceeding because, “[g]enerally,
the existence of probable cause is a factual issue.” Groman v.
Twp. of Manalapan, 

, 635 (3d Cir. 1995). It
certainly is inappropriate for a court to grant a defendant
officer’s motion for summary judgment in a malicious
prosecution case if there are underlying factual disputes bearing
on the issue or if “reasonable minds could differ” on whether he
had probable cause for the institution of the criminal

judgment. Thus, the Court indicated that “Plaintiff's signature
and adoption of the Third Statement only served to reinforce
Assistant Prosecutor Hancock’s decision to prosecute Plaintiff,
as Hancock believed that the signatures represented that Plaintiff
was adopting the Third Statement voluntarily and that they were
Plaintiff’s words.” Halsey, 

, at *6.

                               52
proceedings based on the information available to him. Deary v.
Three Un-Named Police Officers, 

, 192 (3d Cir.
1984). Here, by entering summary judgment on the malicious
prosecution claim, the District Court, effectively, if not
explicitly, held that a reasonable jury could not conclude that the
appellees lacked probable cause to charge Halsey even without
the confession. We disagree with that conclusion.

        The District Court pointed to several pieces of evidence
(apart from the confession) available to Hancock when he
decided to charge Halsey: (1) “the results of the autopsy”; (2)
“Hancock’s review of the crime scene”; (3) “inconsistencies
between [Halsey’s] first and second statements”; (4) “the fact
that the children were left in [Halsey’s] care”; and (5) Halsey’s
failure of the polygraph exam. Halsey, 

, at *6.

        In analyzing the evidence, we begin with the polygraph
results because we agree with the District Court that they
counseled in favor of finding that there was probable cause to
institute the proceedings against Halsey, and the use of the
polygraph results is a central matter in this case. We, of course,
are aware that Halsey points to Honts’s unchallenged expert
opinion prepared years after the murders that concluded that
Halsey registered “the strongest truthful score possible” on the
relevant scale, J.A. 820, a result so unequivocal that, according
to the report, a reasonable polygrapher, even using 1985
standards, could not have concluded that Halsey had failed the
test. But, notwithstanding Honts’s opinion, one polygrapher,
Peter Brannon, did conclude immediately after the murders that
Halsey failed the test.        Halsey argues that given the
uncontroverted current evidence about the results of the test, as

                                53
we now know them, and the fact that Brannon discussed the
polygraph results with appellees, a jury should be free to infer
that “Pfeiffer and Lynch were aware that Halsey had passed the
polygraph.” Appellant’s br. at 40. Obviously, if they had that
knowledge during their investigation of the crimes, the
polygraph results could not have supported a conclusion that
they had probable cause to initiate the prosecution.

         But Halsey, in contending that a jury could conclude that
the appellees knew that he passed the polygraph examination, is
asking us to permit a jury to engage in pure speculation. After
all, inasmuch as Brannon’s November 16, 1985 report stated
that it was “the opinion of the Polygraph Examiner, based on the
Polygraph Recordings, that the subject exhibited evidence of
attempts at deception,” it is unreasonable to believe on the
present record that appellees thought that Halsey passed the
test. 25 D.A. 93-94. In this regard, we point out that we see
nothing in the record that suggests that appellees did not believe
that Brannon’s conclusions were accurate. Accordingly, a
reasonable prosecutor in the position of appellees would have
believed Halsey failed the polygraph exam and would have
considered that those results supported a conclusion that there
was probable cause for the prosecution. See Cervantes v. Jones,

, 813 n.9 (7th Cir. 1999) (collecting cases)
(“[P]olygraph results are one of many factors which may be
used in determining whether, from an objective viewpoint,
probable cause for an arrest existed under the Fourth

25
  Again we are making no comment on what the record
developed later may reveal to a jury.


                               54
Amendment.”).

       In reviewing the disposition of this action against
appellees, as distinguished from how we would view a
malicious prosecution case against Hancock, 26 we set the
confession aside when considering the probable cause issue,
because, for purposes of this case, we find that the confession
was invalid inasmuch as appellees fabricated it. In the absence
of the confession, the evidence supporting the case against
Halsey was thin. Aside from the polygraph results, the District
Court pointed to evidence of the crime scene and the results of
the autopsy to support the filing of the charges against Halsey,
but neither tied Halsey to the crimes. Halsey did alter some of
the details of his account of his activities during the night of the
murders when he gave his second statement, but he volunteered
those changes, which, in any event, were minor and non-
incriminating. Moreover, as Hancock seemed to recognize, the
inconsistencies could have been due to Halsey’s consumption of
alcoholic beverages on the night of the murders. 27 Thus, at his
deposition Hancock testified that “[p]art of the issue dealt with
how much [Halsey] had to drink that night and whether he might

26
  We do not see why Hancock would not have been able to rely
on the confession in contending that he had probable cause to
initiate the prosecution because as far as the record shows he
was not involved in or aware of the fabrication of the
confession.

27
  We also note that Halsey had used marijuana before he went to
the bars on the night of the murders and this use also could have
contributed to his confusion.

                                55
have been intoxicated and not have the ability to recall certain
events.” J.A. 797. Finally, though Halsey had the opportunity
to commit the crimes because the children had been left in his
care, a defendant’s mere presence at a crime scene is not a basis
for his arrest. See Harris v. Bornhorst, 

, 515 (6th
Cir. 2008)

       We recognize that a court makes a probable cause
determination on the “totality of the circumstances,” United
States v. Yusuf, 

, 390 (3d Cir. 2006), meaning that
a court should not isolate pieces of evidence when it determines
whether there was probable cause for a prosecution. Rather, a
court should measure the cumulative weight of all of the
evidence and account for reasonable inferences that can be
drawn from it. But, taking into account the totality of the
evidence other than the confession, appellees do not point to
evidence sufficient for us to affirm the summary judgments in
the malicious prosecution action on the theory that they had
probable cause to initiate the prosecution.

        The circumstance that Halsey was thought to have failed
the polygraph exam coupled with the fact that he had the
opportunity to commit the crimes did not so clearly establish that
there was probable cause for the initiation of the criminal
proceedings that no reasonable jury could conclude otherwise.
We reach this conclusion even after we consider other factors
that could contribute to a finding that there was probable cause
for institution of the prosecution that the District Court did not
mention, namely Halsey’s admitted failure to call the police or
delay in calling Urquhart when he discovered that the children
were missing as well as the statements that other persons

                               56
originally made that contradicted Halsey’s account of his
activities on the night of the murders.

        Our determination is in line with that stated by another
court of appeals recently in a case involving facts strikingly
similar to those here. In Fox v. Hayes, 

, 835 (7th
Cir. 2010), the Court of Appeals for the Seventh Circuit held
that an officer’s mere “hunch” was not elevated to the level of a
reasonable belief necessary for probable cause to institute
criminal proceedings, and affirmed a district court’s order
sustaining the jury’s verdict against the defendant in a malicious
prosecution case. In that case, the suspect, Kevin Fox, who was
the father of a three-year old female murder victim, was, like
Halsey, the last known adult present with the victim. 28 When
Fox realized that his daughter was missing from the family
residence, he did not call immediately the police or the victim’s
mother, who was away from the family home in a different city,
and, instead, unsuccessfully searched for her for 40 minutes. He
called the police only when his search had not been successful
and even then called a number that he knew was not a police
emergency number. Subsequently, Fox took a polygraph
examination which the police told him that he had failed. Even
though Fox first denied being involved in the murder, he

28
  We say that Halsey was the last known adult present with the
children because Halsey said that Urquhart went out for the
evening on the night of the murders before he did and when
Halsey later went out he locked the door and told the children
not to let anyone in. As far as we are aware, appellees did not
know during the investigation that Hall saw the children after
Halsey left the apartment for the evening.

                               57
eventually confessed that he had been involved, but then, almost
immediately, disavowed the confession.

       The case against Fox was perhaps stronger than the case
against Halsey because it arguably had incriminating aspects
without a parallel here. In this regard, there was potentially
incriminatory evidence against Fox because a surveillance video
appeared to show a vehicle similar to his being driven during a
time he claimed to have been sleeping on the night of the
murder. But the court concluded that, when viewed in the light
most favorable to Fox, the facts did not so strongly establish that
there was probable cause for the institution of criminal
proceedings against Fox that the state actor defendant in Fox’s
malicious prosecution action was entitled to a reversal of the
judgment against him entered on a jury verdict. We likewise
reject appellees’ claim that they are entitled to summary
judgment on whether there was probable cause to initiate the
proceedings against Halsey. The presence vel non of probable
cause was a jury question that the District Court could not
resolve on motions for summary judgment.

        Accordingly, because a reasonable jury could conclude
that: (1) by fabricating Halsey’s confession, appellees infected
Hancock’s decision to charge Halsey, and (2) in the absence of
the invalid confession, the facts of the case did not demonstrate
conclusively that there was probable cause for Halsey’s
prosecution, we will reverse the District Court’s grant of
summary judgment on Halsey’s malicious prosecution claim.

C.     Coercion Claim


                                58
        The final aspect of the disposition of appellees’ motions
for summary judgment that we address is the dismissal of
Halsey’s claim that appellees coerced him into adopting a
confession that they fabricated and by doing so denied him due
process of law. The parties sharply dispute how we should
resolve the appeal on this issue because, on one hand, the record
contains evidence that appellees forced Halsey to sign the
incriminating statement by overwhelming his will to continue
denying his involvement in the crime but, on the other hand,
there is no indication that appellees physically abused Halsey or
even tricked him into signing the statement. Our review of the
record, considered in the light most favorable to Halsey,
convinces us that there is enough of a factual issue to warrant
the conclusion that the District Court should have denied the
motions for summary judgment on the coercion claim.

        We have recognized that “an involuntary confession may
result from psychological, as well as physical, coercion.” Miller
v. Fenton, 

, 603 (3d Cir. 1986). In deciding
whether the evidence in the record compels a conclusion that, as
the District Court believed, Halsey could not have been coerced
into confessing, we look to the totality of the circumstances. 

We, however, do not employ a “but-for” test in
addressing this issue. 

circumstance that a suspect
would not have confessed if he had not been interrogated does
not mean that his confession was involuntary. 

Accordingly, to sustain a coercion claim in an effort to have his
confession excluded from admission into evidence at trial, a
criminal defendant must point to some link between police
misconduct and the confession. United States v. Jacobs, 

, 108 (3d Cir. 2005).

                               59
        A coercion inquiry requires a court to “consider the
specific tactics utilized by the police in eliciting the admissions,
the details of the interrogation, and the characteristics of the
accused.” 

(quoting Rachlin v. United
States, 

, 1377 (8th Cir. 1983)) (internal quotation
marks omitted). Specifically, in making that inquiry, we have
looked at:

       the youth of the accused; his lack of education or
       his low intelligence; the lack of any advice to the
       accused of his constitutional rights; the length of
       detention; the repeated and prolonged nature of
       questioning; and the use of physical punishment
       such as the deprivation of food or sleep.

v. Bustamonte, 

, 226, 

(1973)). This list of factors, however, is not
exhaustive, and we also have stated that a court should consider
the suspect’s familiarity with the criminal justice system when
determining whether he was coerced into confessing. 

.

       In considering these factors we are mindful that the
ultimate question is “whether the defendant’s will was
overborne when he confessed.” 

. This
question frequently is difficult to answer because “the line
between proper and permissible police conduct and techniques
and methods offensive to due process is, at best, a difficult one
to draw, particularly . . . where it is necessary to make fine
judgments as to the effect of psychologically coercive pressures
and inducements on the mind and will of an accused.” Haynes

                                60
v. Washington, 

, 515, 

, 1344 (1963);
see also Colorado v. Connelly, 

, 164, 

, 520 (1986) (“[A]s interrogators have turned to more subtle
forms of psychological persuasion, courts have found the mental
condition of the defendant a more significant factor in the
‘voluntariness’ calculus.”).

        Yet a confession is not rendered involuntary simply
because the police procured it by using psychological tactics.
See 

. Indeed, even the use of deception
to procure a confession might not result in its exclusion from
admission into evidence at the trial. See, e.g., Frazier v. Cupp,

, 739, 

, 1425 (1969) (“The fact that
the police misrepresented the [co-defendant’s] statements . . . is,
while relevant, insufficient in our view to make this otherwise
voluntary confession inadmissible.”); see also United States v.
Rutledge, 

, 1131 (7th Cir. 1990) (“[T]he law
permits the police to pressure and cajole, conceal material facts,
and actively mislead – all up to limits . . . .”). By the same
token, the circumstance that the police have advised “a suspect
of his rights does not automatically mean that any subsequent
confession is voluntary.” Livers v. Schenck, 

, 353
(8th Cir. 2012) (internal quotation marks omitted).

        The District Court entered summary judgment against
Halsey on his coercion claim for two overarching reasons. First,
it relied on the presence of factors that it found supported the
conclusion that Halsey’s confession was voluntary: the
investigators gave him his Miranda rights prior to questioning
him and did so again before he signed the confession; the
investigators did not threaten him or promise him anything of

                                61
value in return for his confession; the investigators did not
physically abuse him or deny him food, drink or breaks; he did
not ask to leave the police headquarters before he confessed; and
he did not ask for an opportunity to consult an attorney.

        Second, the District Court found it significant that
appellees were not responsible for reading back Halsey’s
purported confession or for obtaining his signature as that task
fell on Propsner. The Court noted that when Propsner entered
the room in which Halsey was being questioned, Halsey could
have told Propsner about his objections concerning how
appellees obtained his statement or the manner in which he had
been interrogated, but he did not do so. The Court also
discredited Halsey’s claim that he signed the statement because
he feared for his life. Thus, the Court indicated that “[Halsey]
does not provide any evidence of threats or coercion by Pfeiffer
or Lynch to explain his statement that he feared for his life.”
Halsey, 

, at *4. The Court concluded that
earlier coercion did not cause Halsey to sign the statement, and
explained that:

       Since the act of executing the Third Statement
       after Propsner read it to [Halsey] is the actual time
       when [Halsey] could have been coerced or
       manipulated into adopting the confession, and
       [Halsey] has agreed to dismiss all claims against
       Propsner, then considering the totality of the
       circumstances, [Halsey] has failed to show that
       either Pfeiffer or Lynch manipulated or coerced
       him in a way that deprived him of his ability to
       make an unconstrained, autonomous decision to

                                62
       sign the Third Statement.

Court seemed to have viewed the
interrogation process as a string of separated events, beginning
with appellees questioning Halsey, proceeding with Propsner
entering the room to review Halsey’s statement, and culminating
with Halsey signing his confession. It appears that, to the Court,
appellees’ conduct during the first stage of the process had no
bearing on the resolution of the coercion issue because Halsey
signed the confession later without objecting to the process’s
earlier aspects.

       Our precedent forecloses the adoption of this
compartmentalized view of the interrogation process in which a
court considers the material events independently or
disjunctively rather than as connected episodes in an ongoing
process. In United States ex rel. Johnson v. Yeager, 

, 314 (3d Cir. 1963), we reversed the denial of a habeas
corpus petition that a defendant in state custody, Wayne
Godfrey, had filed. Godfrey had been interrogated for many
hours, deprived of sleep and counsel, and, contrary to state law,
had not been taken “promptly” for a hearing before a magistrate
judge following his arrest. The bulk of Godfrey’s interrogation
occurred over a night before he confessed the next morning. 

Several police officers did the questioning, but they
ultimately took Godfrey to a chief detective officer in the
morning to whom Godfrey formally confessed. 

“proceeded smoothly and without apparent
reluctance on Godfrey’s part.” 

that if we

                               63
considered only the last aspect of the confession process in
addressing the coercion issue, we would have deemed the
confession voluntary as the state court had when it admitted the
confession into evidence. 

But we rejected the
conclusion of the state court and held that the “civil manner” in
which the chief detective treated the defendant could not have
“cured or made irrelevant the events of the preceding 21 hours.”
 

held in Yeager, and as we reaffirm today, the
compartmentalized view of the interrogation process cannot be
squared with settled Supreme Court precedent. “[C]oercion may
have a persisting invalidating effect upon a confession,” even
when the confession is apparently made without “reluctance
[and] in response to civil questioning in pleasant surroundings.”
 

v. Mississippi, 

, 

(1936) and Reck v. Pate, 

, 81 S.Ct. 1541(1961)).
Thus, “[t]he events preceding the formal confession must be
considered as well as its immediately attendant circumstances.”

29 Accordingly, Halsey’s signature did not extinguish
appellees’ alleged misconduct during the interrogation.

      Our foregoing conclusion leaves us with the question of
whether appellees’ misconduct could be found to have led

29
    Appellees miss this point in their attempt to distinguish
Yeager on its facts, as they fail to account for the principle that
we perceive in that case—that an inquiry into the validity of a
confession cannot be severed from the interrogation that induced
it. See Pfeiffer’s br. at 49.


                                64
Halsey to make the confession. The pertinent facts on this issue,
viewed in light most favorable to Halsey, are compelling. Over
the course of less than two days, appellees detained Halsey, a
man of limited intelligence and little education, who was
unaccompanied by a friend or an attorney, for about 30 hours
and questioned him almost continuously for about 17 of those
hours, of which about nine were highly confrontational, a period
measured from the time Pfeiffer took what Halsey called a
“forceful” approach continuing to the time that Halsey signed
the confession. Appellees persisted in telling Halsey that he was
guilty, “hollering and screaming” at him, 30 despite being aware
of Halsey’s mental limitations and despite Halsey’s repeated
protestations of his innocence. Furthermore, Halsey cried and,
according to Pfeiffer, went into a trance towards the end of the
interrogation. At that point Halsey, who claims that he feared
for his life, signed a statement in the appellees’ presence even
though it included details that only the police and the murderer
could have known. 31


30
  Appellees misconstrue the record when they argue that there is
no evidence that they “hollered and screamed” at Halsey, other
than Halsey’s 1988 statement, which they claim is “contradicted
by Halsey’s deposition testimony.” Pfeiffer’s br. at 54.
Actually, the opposite is true—we see no contradiction in
Halsey’s deposition testimony and find only support: “I just was
arguing with them and going back and forth and no one seemed
to be listening to what I was saying, and there was hollering and
screaming . . . .” J.A. 276.
31
     Although the circumstance that Halsey was innocent proves

                               65
       Overall, we are satisfied that Halsey presented enough

he could not have known certain details about the crime that
nevertheless were included in his confession, we reject Halsey’s
broader proposition that his innocence, by itself, could establish
that he had been coerced into confessing. He argues that the
“optics of innocence changes everything” and asks “[w]hy
would the innocent Mr. Halsey, who had repeatedly (and
truthfully) denied any involvement in these horrible crimes, have
ultimately signed the false confession unless defendants had
overborne his will? The obvious answer is he would not have.”
 Appellant’s br. at 49. If we accepted this view we would
eviscerate the required causal link between police misconduct
and the confession. 

(explaining that “it
can almost always be said that the interrogation caused the
confession”). It would mean that any suspect who is
interrogated prior to his conviction—which is to say almost
every suspect—and who confesses but later is absolved of
criminal responsibility would have an actionable coercion claim.
 That consequence, in turn, would ignore the investigators’
leeway to use confrontational tactics, including psychological
pressure, to elicit information from suspects. See, e.g., United
States v. Astello, 

, 968 (8th Cir. 2001) (holding that
a confession was not involuntary where psychological pressure,
false promises, and suspect’s family were used against him). It
also would ignore the unfortunate reality that individuals
sometimes falsely confess under significant but permissible
pressure.     Indeed, sometimes individuals confess on a
completely voluntary basis to the commission of crimes that they
did not commit.

                               66
evidence to withstand the motions for summary judgment on the
coercion issue. It is true, as the District Court noted and as
appellees repeat in their briefs, that Halsey was not beaten,
bribed, or threatened. Furthermore, he was advised of his
Miranda rights, and, at times, he was given breaks when being
questioned. Moreover, given his prior arrests, Halsey had some
familiarity in dealing with the police, though his record of
repeated arrests suggests that he took away very little from those
experiences. In fact, the record does not suggest that he was
particularly comfortable in navigating the criminal justice
system. 32 Cf. Sims v. Georgia, 

, 407, 

,
525 (1967) (explaining that “the fact that the police may have
warned [the suspect] of his right not to speak [was] of little
significance” because he had a third grade education and a
mental capacity that was “decidedly limited”).

       But none of these reasons could justify our affirming the
order granting summary judgment. See Schneckloth, 

  Lynch disagrees and contends that Halsey’s ability to sign the
polygraph stipulation and Miranda waiver demonstrates that he
had adequate intelligence so that his confession was voluntary.
But Lynch makes this contention without pointing to any
evidence that Halsey understood the significance of his acts.
Lynch’s br. at 7. The circumstance that an individual signs a
document does not demonstrate that he understands its content.
Cf. United States v. Velasquez, 

, 1087 (3d Cir.
1989) (holding that a Miranda waiver had been knowing and
intelligent in part because the defendant previously had invoked
right to counsel, thereby showing that she “understood the
import of the Miranda warnings”).

                               67
at 

(“The significant fact about all of [the
cases involving involuntary confessions] is that none of them
turned on the presence or absence of a single controlling
criterion; each reflected a careful scrutiny of all the surrounding
circumstances.”). There is no magic set of considerations that
justifies the granting of summary judgment on a coercion claim,
for “a totality of the circumstances analysis does not permit state
officials to cherry-pick cases that address individual potentially
coercive tactics, isolated one from the other, in order to insulate
themselves when they have combined all of those tactics in an
effort to overbear an accused’s will.” 

.
When we weigh the factors militating against and favoring a
finding that Halsey’s confession was coerced, we are satisfied
that rational jurors reasonably could find that Halsey was
coerced into signing the confession.

        A recent case from the Court of Appeals for the Eighth
Circuit supports our conclusion. Livers, 

. There,
the court affirmed a denial of the defendants’ motion for
summary judgment that they based on a claim of qualified
immunity in an action in which the plaintiff claimed that he had
been coerced into confessing in a situation involving facts very
similar to those here. The plaintiff, Mathew Livers, who was of
substandard intelligence, was questioned for 6.5 hours without
counsel, was informed that he failed a polygraph examination,
and continued to protest his innocence before finally confessing.
 

       Halsey contends his case is even more compelling than
Livers’s, pointing to his longer interrogation and to the alleged
fabrication of evidence. Appellant’s br. at 51-52. On the other

                                68
hand, appellees identify distinctions between the cases: the
denial of food that Livers endured for ten hours; an
“uncomfortably cold” room to which he was first taken;
promises of “help” and threats of execution; and not being
permitted to leave the interrogation room. Pfeiffer’s br. at 55.

       Though Livers is not entirely analogous to this case, it
supports our view that the District Court should not have
granted summary judgment on the coercion issue. The physical
discomfort visited on Livers, though not similarly present here
with respect to appellees’ treatment of Halsey, is offset by the
longer detention and interrogation that Halsey withstood.33 The

33
    The parties sharply dispute the length of Halsey’s
interrogation. Halsey arrives at a total of 30 hours by counting
all the time he spent in police custody. Appellant’s br. at 47.
Appellees, for their part, contend that there were only 12 hours
of “actual interrogation” time. Pfeiffer’s br. at 51. We have no
need to decide whose calculations are correct for by any
standard appellees subjected Halsey to an extended
interrogation. We do note, however, that Halsey includes in his
30-hour calculation the time consumed when he gave his
voluntary, non-incriminating statements to appellees, the nap
that he took at the police station while waiting for Brannon, the
drive to and from the prosecutor’s office the following morning,
and the polygraph exam—in short, all of the time that he spent
with the police. Though we do not ignore the time that a
defendant is in custody without being interrogated, see, e.g.,

(taking into account both the length of
detention and of interrogation), such time should not be
conflated with the duration of a continuous interrogation

                               69
threats and promises made to Livers likewise are balanced by
the visible physical reaction that the interrogation induced in
Halsey. Moreover, as far as we can see from the opinion in
Livers and the record before us, neither Livers nor Halsey would
have had a reasonable belief that he was free to leave the facility
in which he was being interrogated. See, e.g., United States v.
Barnes, 

, 1204-05 (9th Cir. 2013) (holding that
the “pressure resulting from a combination of the surroundings
and circumstances” of being in a “police-dominated, confined
environment” did not give a reasonable person the impression
that he was free to leave even though he was not handcuffed,
formally arrested, or physically intimidated). 34

       We are also mindful of the expert report of Psychology
Professor Saul M. Kassin regarding the nature of Halsey’s
interrogation and his confession. 35 Cf. Strickland v. Francis,

, 1555 (11th Cir. 1984) (reversing denial of

designed to extract a confession.

34
  We are aware that Halsey did not complain to Propsner about
appellees’ treatment of him. But we are not impressed with this
circumstance as we doubt that Halsey viewed Propsner as a
sympathetic figure and we believe that, in the intimidating
surroundings of a police station, Halsey would have been
reluctant to complain to Propsner about his treatment.
35
  Neither the District Court nor appellees mentioned Kassin’s
report even though it was part of the record on the summary
judgment motions and even though Halsey has discussed it in
his trial and appellate briefs.

                                70
habeas petition in part because the jury lacked reason to disagree
with the “unambiguous and uncontradicted opinions” of expert
witnesses regarding defendant’s competence to stand trial). The
report supports Halsey’s position that he was coerced into
signing a false statement.

       Dr. Kassin reviewed the coercive aspects of Halsey’s
interrogation as well as Halsey’s attributes and concluded that
“the Halsey statement contained multiple hallmarks of a false
confession.” J.A. 674. Dr. Kassin explained Halsey’s
vulnerabilities as a suspect: his mental limitations, his history of
mental health issues and substance abuse, and his suggestibility
(as reported by a test Halsey took). These are all characteristics
that Kassin explained have been shown to contribute to false
confessions. Kassin also analyzed the interrogation itself and
concluded that its length (much longer than average) and the
tactics used (overwhelming Halsey with supposedly
incriminating evidence) also increased the chances that Halsey
would agree to sign a false confession to end the
confrontation—all suggesting that his will was overborne.

       It is important to recognize that, unlike issues requiring a
technical understanding, the question of whether a criminal
defendant was coerced is a matter well within “lay competence”
and thus a jury is not foreclosed from considering whether there
was coercion even if there is “unequivocal, uncontradicted and
unimpeached testimony of an expert” addressing the issue.
Quintana-Ruiz v. Hyundai Motor Corp., 

, 76-77 (1st
Cir. 2002). In any event, here we cite the expert’s report only to
support the conclusion that there was a genuine dispute of
material fact on the issue of whether the appellees obtained

                                71
Halsey’s signature on the confession through coercion. See
Thomas v. Newton Int’l Enters., 

, 1270 (9th Cir.
1994) (holding that expert opinion created material dispute
when included with other evidence and noting that it is generally
“itself sufficient to create a genuine issue of disputed fact
sufficient to defeat a summary judgment motion”). For these
reasons, and because appellees do not rely on the absence of
established law in pressing their contention that they had
qualified immunity on Halsey’s coercion claim, we will reverse
the summary judgment in their favor on the coercion claim.



                    VI.    CONCLUSION

       For the foregoing reasons, we will reverse the District
Court’s February 21, 2013 order granting appellees summary
judgment on Halsey’s fabrication, malicious prosecution, and
coercion claims. We also will reverse the summary judgment on
Halsey’s parallel state law claims, which appellees concede are
coextensive with his federal claims. Pfeiffer’s br. at 57 (citing
Wildoner v. Borough of Ramsey, 

, 1153 (N.J.
2000)). 36 We will reinstate the reversed claims and will remand
the case to the District Court for further proceedings consistent
with this opinion.


36
  Because Halsey has not appealed the dismissal of his 42
U.S.C. § 1983 claim based on Brady v. Maryland, the portion of
the February 21, 2013 order dealing with that claim will remain
undisturbed.

                               72