Law360, New York (September 18, 2015, 12:01 PM EDT) -- In its decision in Morse v. Fusto,[1] issued Sept. 11, 2015, the Second Circuit continued the process of defining and expanding the parameters of a prosecutor's § 1983 liability for falsification or fabrication of evidence. Prior to Morse, the court had confirmed that prosecutors possess only qualified immunity when performing investigative functions, and that fabricating evidence during the investigative phase would support the imposition of liability on a public official. In the Morse decision, the Second Circuit took a critical further step: The court held that material omissions can, if knowingly made, constitute the falsification of evidence, even if the evidence otherwise is "facially" accurate. The court further held that prior case law concerning liability for law enforcement officials found to have falsified evidence applied with equal force to prosecutors....