What is (and What is Not) Malicious Prosecution?


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One person can sue another person when a previous criminal or civil lawsuit was brought for wrongful purposes. In essence, the person who was previously prosecuted or sued (now the plaintiff) can sue the person who brought the original case (now the defendant) for malicious prosecution if the defendant started an illegitimate criminal or civil case for an ulterior motive. This article briefly reviews the elements of a malicious prosecution case and gives some examples of what is and is not malicious prosecution.

Essential Elements of Malicious Prosecution

A successful malicious prosecution claims requires that:

  • the defendant begin or continue a criminal or civil legal proceeding
  • without reasonable grounds to believe the allegations of the proceeding
  • and with a purpose other than simply getting a judgment in the proceeding (called “malice” in legal terms)
  • the defendant has lost the original “false” case he or she brought against the plaintiff, and
  • the plaintiff was damaged by the defendant’s “false” case.

Examples of Successful Malicious Prosecution Lawsuits

Below are some examples of successful malicious prosecution claims. Keep in mind that all five of the elements listed above must be present for the claim to succeed -- the examples below do not discuss every element in every case, but they're a good illustration of what might equate to malicious prosecution in the real world.

  • A bank was successfully sued for malicious prosecution after its employees intentionally gave false information to the public prosecutor about the criminal defendant’s (now the malicious prosecution plaintiff) supposedly illegal banking activities.
  • When a defendant admitted that he did not know who actually stole his property, that admission proved he had the plaintiff arrested for an improper motive, leading to a successful malicious prosecution claim.
  • When a defendant testified that he had a criminal affidavit filed against the plaintiff simply in order to collect a debt from the plaintiff, the plaintiff’s malicious prosecution lawsuit was successful because the defendant used the criminal process for an improper purpose.
  • A police officer did not give all of the facts when he obtained an arrest warrant on the plaintiff for possession of illegal hypodermic needles. When there was no proof that the plaintiff was using the needles for illegal purposes, the plaintiff successfully sued for malicious prosecution.

Examples of Malicious Prosecution Lawsuits that Failed

  • If the plaintiff won the first lawsuit because the statute of limitations passed, or for some other technical reason that did not prove whether the plaintiff was guilty or innocent, the plaintiff’s malicious prosecution lawsuit against the defendant will fail.
  • If the defendant’s attorney is being sued for malicious prosecution, the attorney is not liable simply because she thought the case probably would not win. The rule is that no reasonable attorney (not just the attorney being sued) would believe the case was based on any real facts showing a legitimate dispute. In other words, thinking a case doesn’t have much chance of winning is not the same as knowing a case has absolutely no good reason to win.
  • Threatening a lawsuit for ulterior purposes is not malicious prosecution because no process has been actually used or abused. For example, if a defense attorney threatens the plaintiff in a civil suit with criminal charges in hopes that the plaintiff will drop the civil case, there is no malicious prosecution.
  • Unintentionally leaving information off of an affidavit or warrant, unintentionally giving inaccurate information to obtain a warrant, or unintentionally giving inaccurate information to a law enforcement agency will not lead to a successful malicious prosecution case. If the defendant thought she was starting a criminal or civil process for a legitimate reason, being mistaken about the facts does not prove an improper purpose. Note that an improper purpose might be proved if the defendant makes no effort to get accurate facts before starting a civil or criminal process, especially if there is a good explanation of the defendant’s ulterior motive.

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