Malicious Prosecution: Responding to Wrongs With Extreme Prejudice

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UPDATED: Jul 16, 2021

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Written By: Jeffrey JohnsonUPDATED: Jul 16, 2021Fact Checked

Malicious prosecution is generally a prosecution without probable cause and that causes damage. Malicious prosecution is a tort, and victims of malicious prosecution may be able to sue the police for damages.

What is Malicious Prosecution?
Malicious prosecution is a tort, or civil claim for damages. Malicious prosecution is not restricted to criminal cases, but any criminal or civil case where you are falsely prosecuted or sued.

An example of a criminal malicious prosecution case would be the police arresting and prosecuting you for a theft, even though none of the evidence pointed to you. A civil example could be a state’s child protective services taking away custody of someone’s children without any evidence that they are unfit parents.

In both of the above examples, the falsely accused people have the right to sue the state for damages due to malicious prosecution.

How do I prove Malicious Prosecution?
You must prove four different things in order to receive damages for a malicious prosecution case. The first requirement is that the original case was terminated in favor of the plaintiff. This means that the judge dismissed the case in favor of you, not the person suing you. If the judge specifically dismisses the case and uses terms such as “malicious prosecution”, “no probable cause” or “frivolous lawsuit”, contact a civil rights attorney immediately, as you may have a malicious prosecution case.

The second requirement is that the defendant played an active roll in the original case. This basically means that your malicious prosecution case must sue the right person. So with the two examples stated earlier, you would sue the local police and child protective services respectively.

The third requirements is that the defendant did not have probable cause or reasonable grounds to support the original case. This means that the defendant acted without having any proof or reason to act. So in the first example, the police would have to arrest you without any actual supporting evidence to do so.

The final requirement is that defendant initiated or continued the initial case with an improper purpose. This means that even once the defendant realized that the case was without merit, they continued pursing it anyway.

Are there any historic examples of Malicious Prosecution?
In 2006, the players of the Duke lacrosse team were accused of raping a stripper. The students were arrested and the prosecution made every effort to make the case public, humiliating the students. After months fighting, it was finally discovered that the rape claim had been baseless and that the prosecutor knew it was baseless long before the case was dismissed. The case was finally dismissed on grounds of malicious prosecution.

What are the damages for a Malicious Prosecution Case?
Current law gives full tort damages to victims of malicious prosecution. This includes compensation for any injury or damage to property, payment of all lost wages, and compensation for any pain and suffering caused by the malicious prosecution.
Malicious prosecution is an intention tort, so you can also collect punitive damages. Punitive damages are damages directed at penalizing the plaintiff for bringing the case. The goal is to discourage government and civilians from filing false lawsuits.

Can attorney’s fees be paid for Malicious Prosecution Cases?
Under the Civil Rights Attorney’s Fees Awards Act of 1976 attorney’s fees can be paid if the Malicious prosecution case violated one of your Constitutional Rights. This only applies to cases against a government agency, not against a private citizen.

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

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