Malicious Prosecution

Malicious prosecution involves the wrongful institution of criminal proceedings by one private citizen against another private citizen that results in damages to the plaintiff.

In order for a cause of action to be viable, the criminal proceedings must be initiated by a charge made to the police or some other public official so as to cause the plaintiff’s arrest. Further, the plaintiff must show that the criminal proceedings concluded with an indication that he was innocent.

Acquittal by a jury, dismissal for lack of evidence, or refusal by a grand jury to indict qualifies as a conclusive indication that the plaintiff is innocent. Dismissal on a technicality, a guilty verdict overturned on appeal, or a mistrial, does not qualify. 

In addition, the plaintiff must demonstrate that the defendant had no probable cause to institute criminal proceedings against the plaintiff.

Also, the plaintiff must show that the defendant’s motive was malicious when he instituted the proceedings.

As far as damages go, the plaintiff can recover all expenses relating to his defense, as well as his emotional damages, economic damages and, where appropriate, punitive damages.

There are two possible defenses to a charge of malicious prosecution. 

The first is the plaintiff’s actual guilt. If the plaintiff is found guilty of the charges filed against him, or if the case concludes in a manner that does not indicate innocence, the plaintiff cannot recover. 

The second defense is that of privilege. However, only judges, prosecutors and other law enforcement officials have an absolute privilege from liability.

Some jurisdictions now recognize a tort of malicious institution of civil proceedings. The elements to this tort are the same as in malicious prosecution and the damages that the plaintiff can recover are the same as well. See Dutt v. Kremp, 894 P.2d 354 (Nev. 1995).

Finally, there is a tort called abuse of process, which establishes liability for intentionally using some court process or another for a purpose other than that for which the process was meant. To prove a prima facie case of abuse of process, the plaintiff must prove the intentional misuse of a court process that resulted in damages to the plaintiff. See Yaklevich v. Kemp, Schaeffer & Rowe Co., 626 N.E.2d 115 (Ohio 1994).

Please note that, unlike with malicious prosecution, the plaintiff does not have to prove that the defendant lacked probable cause in employing the misused court process. Also, the plaintiff does not have to prove that the overall case ended in his favor.