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Malicious Prosecution

It should be obvious that the purpose of the criminal justice system is to bring criminals to justice. Unfortunately, people sometimes try to use the criminal justice system for improper purposes, such as revenge. As one would expect, using the criminal justice system solely for improper purposes is prohibited by law. The personal injury lawsuit that addresses improper criminal prosecution is known as malicious prosecution.

Prosecution Without Probable Cause

People have a general right to not be unreasonably prosecuted for the commission of a crime. By making a false claim that he or she has been a witness to the commission of a crime, a person can cause another person to be arrested and prosecuted.

In most states, the lawsuit of malicious prosecution is the lawsuit of having a criminal action instituted or continued against another, without reasonable cause, and having the criminal action terminate in favor of the accused. “Having a criminal action instituted or continued against another” means encouraging it and not merely telling what one knows and leaving to another the decision of whether to proceed. “Reasonable cause” means a reason more than mere suspicion, even if one is mistaken. “Terminate in favor of the accused” means not found guilty or insane, no pleas of guilty or no contest, no plea bargain, and no expiration of a statute of limitations due to the accused’s absence from the state. In malicious prosecution, malice, the reckless disregard of a person’s rights, means the desire to have a criminal prosecution brought for a purpose other than to bring a criminal to justice.

The classic example of malicious prosecution is where the defendant knows that the plaintiff is not guilty but accuses the plaintiff of having committing a crime.

The Elements of Malicious Prosecution

The elements of malicious prosecution are (1) having a criminal action instituted or continued against the plaintiff (2) based upon an accusation by the defendant (3) made with malice and (4) without reasonable probable cause, and (5) the criminal action terminated in favor of the plaintiff. Some states may require proof of actual damages. Special damages and punitive damages, if any, must also be proven.

Notice that if a defendant without probable cause guesses that the plaintiff was guilty, accuses the plaintiff, and it turns out that the plaintiff is guilty, malicious prosecution has not been committed, because the criminal action did not terminate in favor of the plaintiff.

Defenses to Malicious Prosecution

Defenses to malicious prosecution include challenging the plaintiff’s case, privilege or immunity, acting in good faith, and acting on the advice of an attorney after making a full disclosure of the relevant facts. A prosecutor or district attorney, or an assistant prosecutor or assistant district attorney, acting in the scope of his or her employment, is usually immune from a malicious prosecution lawsuit.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.

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