In what circumstances will a defendant have to seek interlocutory review of his claim of absolute immunity for false testimony?

In the instant case, defendants have alleged substantial enough arguments in favor of extending immunity for false testimony itself to conspiracies to testify falsely, see infra, to defeat any suggestion that their claim ofimmunity is frivolous. Furthermore, in the event that claim did prevail, the argument made in Briggs v. Goodwin, supra, for the ineffectiveness of appeal from final judgment when immunity rights are abridged would apply with equal force here. Therefore, we conclude that defendants are entitled to interlocutory review of their immunity claim.

Having said that, we nonetheless reject the absolute immunity claim on its merits. Briscoe v. LaHue, supra, was expressly limited to immunity for testimony given in judicial proceedings, and its rationale--to encourage witnesses to come forward with all they know--does not justify extending that immunity to cover extra-judicial conspiracies between witnesses and the prosecutor to give false testimony. Nor do we find persuasive defendants' argument that absent the immunity they now seek, every witness could be intimidated by the prospect of defending a civil suit charging 'conspiracy' to give false testimony, just as easily as a suit charging false testimony. Insofar as witnesses may face groundless 'conspiracy' suits, ample protection against costly defense should ordinarily be provided by the possibility of 12(b)(6) dismissal or summary judgment in defendants' favor.