Malicious Prosecution

Prosecutors and lawyers don't usually pursue criminal and civil cases that lack sufficient evidence. Occasionally, however, criminal charges or civil lawsuits are maliciously filed. This is done to intimidate, harass, defame, or otherwise injure the other party. In response, the injured party can file a malicious prosecution case in a civil legal proceeding.

Keep in mind that this article discusses malicious prosecution, also known as malicious use of process. While it involves similar concepts, it is not the same thing as abuse of process. Malicious prosecution lawsuits are distinct from abuse of process claims. Malicious prosecution suits are filed in response to criminal or civil charges that were brought for an improper purpose.

Conversely, abuse of process suits can be brought even in response to claims that have an underlying legitimate reason. Abuse of process refers to the misuse of legal procedure within a lawsuit that is otherwise legitimate.

Examples of abuse of process may be:

• Filing a legitimate car accident lawsuit; however, the plaintiff's lawyer intimidates an at-fault defendant by serving them with fake subpoenas
• Placing an inappropriate lien on a defendant's property to force them to settle quicker

Examples of malicious prosecution may be:

• An unscrupulous prosecutor filing false charges against a political rival
• A corporation filing a frivolous lawsuit against a small business in order to take out the competition

Note that malicious prosecution comes into existence at the time of filing. The filing of the suit itself is inappropriate. In contrast, abuse of process usually happens after a legitimate lawsuit has already been filed.

Malicious prosecution provides an essential check on potential abuses. This is because prosecutors have discretion over which cases are pursued. Similarly, private citizens are free to file lawsuits against anyone. Read on to learn the basic elements of malicious prosecution and possible remedies available to victims.

Malicious Prosecution: The Basics

A claim or cause of action can be for a civil wrong (tort). Malicious prosecution is an intentional "dignitary" tort. A dignitary tort is one in which the plaintiff claims injury to their human dignity. It is a category that also includes infliction of emotional distress and abuse of process.

Malicious prosecution may be brought by someone against whom a criminal or civil action has proceeded:

1. Without probable cause (reasonable grounds); and
2. With malicious intent

Malicious prosecution occurs when one party has knowingly and with malicious intent initiated baseless litigation against another party. This includes both criminal charges and civil claims.

The main difference between claims based on criminal and civil actions has to do with evidence. A claim based on malicious criminal prosecution might allege damages for mental suffering. Here, a plaintiff might not need to provide proof in the form of verifiable economic damages. But for claims based on civil actions, the plaintiff must be able to prove quantifiable damages. That means the damages can be calculated easily. For example, lost wages or medical expenses can be verified to exact numbers.

Most states allow recovery for claims based on civil suits, as long as the plaintiff (the defendant in the original case) is able to prove:

1. Malicious intent; and
2. Lack of probable cause

But apart from the mere hassle of answering a civil complaint, some states also require some direct interference with, or injury to, the plaintiff.

For example, defamation can result from a malicious lawsuit. Lost business from a damaged reputation typically would be considered a compensable injury.

Generally, any malicious criminal proceeding that lacks probable cause may give rise to a malicious prosecution claim. This includes criminal charges, regardless of whether the claimant was tried or even indicted. Even the malicious issuance of a search warrant without probable cause may trigger such a claim.

The Elements of a Malicious Prosecution Claim

Courts generally agree on the elements required for a malicious prosecution claim. But some states combine elements or arrange them differently. The six elements of this claim are as follows:

1. The institution or continuation of a civil or criminal legal proceeding against the plaintiff;
2. Done by, or abetted by, the defendant (the prosecutor or plaintiff in the malicious action);
3. Termination of the prior proceeding in the plaintiff's favor. For instance, the case brought by the prosecutor or plaintiff in the malicious action was dismissed;
4. Absence of probable cause for instituting the prior proceeding;
5. Malice as the primary purpose for the prior action; and
6. Injury or damage to the plaintiff as a result of the prior action

Remedies for Malicious Prosecution

Being the subject of malicious prosecution can cause a wide range of injuries. Injuries can result from unsubstantiated criminal charges or a bogus civil claim. In either case, the plaintiff may claim compensatory and sometimes punitive damages. Punitive damages are designed to punish egregious behavior.

Compensatory damages consist of the actual damages that were a direct result of the malicious prosecution. This may include pain and suffering and other non-monetary injuries. Also, special (quantifiable) damages may be claimed, including:

• Lost earnings
• Medical expenses
• Additional domestic costs, such as childcare

Actual damages for a malicious prosecution claim will hinge on the emotional impact of the act. This may include the confusion, bewilderment, and isolation typically experienced by the wrongfully accused. Emotional pain usually is more pronounced if the claim is in response to malicious criminal charges. This is because the plaintiff may have spent time in jail or otherwise been detained or treated as a criminal. In addition, just the uncertainty and fear of entering a criminal trial is often enough. It can convince a jury that the malicious act caused severe emotional distress.

Plaintiffs also may claim:

• A damaged reputation
• Loss of future earning potential
• Attorney fees, and court fees

Actual damages will vary from case to case and depending on your jurisdiction (state law).

Speak With an Attorney About Malicious Prosecution Claims

Victims of malicious prosecution should stand up for their civil rights. Prosecutors, law enforcement, and police officers are notorious for corrupting the legal process. The legal system is also misused by malicious plaintiffs. They may file private civil actions containing false accusations.

Defending against bogus civil claims or criminal charges can be a traumatic experience for anyone. This is particularly true if those claims or charges were filed with malice. A frivolous legal action also takes its toll on one's emotional well-being. If you believe you were criminally charged or sued for reasons other than the quest for justice, speak with a personal injury attorney today.

A client relationship with a personal injury lawyer means you'll have the legal advice you need to pursue damages. Some injury attorneys even provide free case evaluations. Make sure to act quickly before your state's filing time limit (known as the statute of limitations) expires.