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Malicious Prosecution

Criminal and civil cases that lack sufficient evidence usually aren't pursued. Occasionally, however, criminal charges or civil lawsuits are maliciously filed in order to intimidate, harass, defame, or otherwise injure the other party. This is called malicious prosecution.

Examples of malicious prosecution may be an unscrupulous prosecutor filing false charges against a political rival. Or, it could be a corporation suing a small business in order to put the competition out of business. Since prosecutors have discretion over which cases are pursued and private citizens are free to file lawsuits, this tort provides an essential check on potential abuses.

The intentional "dignitary" tort of malicious prosecution may be brought by someone against whom a criminal or civil action has proceeded without probable cause and with malicious intent. A dignitary tort is one in which the plaintiff claims injury to his or her human dignity, a category that also includes infliction of emotional distress and abuse of process.

This article discusses the basic elements of malicious prosecution and possible remedies available to victims.

Malicious Prosecution: The Basics

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.

For example, mental suffering is usually considered an element of general damages in a claim based on malicious criminal prosecution, with no special proof required. But for claims based on civil actions, the plaintiff must be able to prove quantifiable damages.

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 malicious intent and lack of probable cause. But some states require some direct interference with, or injury to, the plaintiff apart from the mere hassle of answering a civil complaint.

For example, defamation resulting from a malicious lawsuit, such as lost business from a damaged reputation, typically would be considered a compensable injury.

Generally, any malicious criminal proceeding that lacks probable cause -- regardless of whether the claimant was tried or even indicted -- may give rise to a malicious prosecution claim. 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. By, or abetted by, the defendant (the prosecutor or plaintiff in the malicious action);
  3. Termination of the prior proceeding in favor of the plaintiff (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 be unsubstantiated criminal charges or a bogus civil claim. In either case, the plaintiff may claim compensatory and sometimes punitive damages. Compensatory damages consist of both 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 damages that identify quantifiable monetary losses, such as lost earnings, additional domestic costs such as childcare, etc., may be claimed.

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, since 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 to 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.

Speak with an Attorney about Malicious Prosecution Claims

Defending against bogus criminal charges can be a traumatic experience for anyone, particularly if those charges were filed with malice. Being sued in a similarly malicious manner can also take 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.

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