malicious prosecution

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Malicious Prosecution

An action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced without Probable Cause and for a purpose other than that of bringing the alleged offender to justice.

An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil. The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case. The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant. In most states the claim must be filed within a year after the end of the original case.

A claim of malicious prosecution is a tort action. A tort action is filed in civil court to recover money damages for certain harm suffered. The plaintiff in a malicious prosecution suit seeks to win money from the respondent as recompense for the various costs associated with having to defend against the baseless and vexatious case.

The public policy that supports the action for malicious prosecution is the discouragement of Vexatious Litigation. This policy must compete against one that favors the freedom of law enforcement officers, judicial officers, and private citizens to participate and assist in the administration of justice.

In most jurisdictions an action for malicious prosecution is governed by the Common Law. This means that the authority to bring the action lies in case law from the courts, not statutes from the legislature. Most legislatures maintain some statutes that give certain persons Immunity from malicious prosecution for certain acts. In Colorado, for example, a merchant, a merchant's employee, or a police officer, who reasonably suspects that a theft has occurred, may detain and question the suspect without fear of liability for slander, false arrest, False Imprisonment, unlawful detention, or malicious prosecution (Colo. Rev. Stat. Ann. § 18-4-407 [West 1996]).

An action for malicious prosecution is distinct from an action for false arrest or false imprisonment. If a person is arrested by a police officer who lacks legal authority for the arrest, the proper remedy is an action for false arrest. If a person is confined against her or his will, the proper remedy is an action for false imprisonment. An action for malicious prosecution is appropriate only when the judicial system has been misused.

Elements of Proof

To win a suit for malicious prosecution, the plaintiff must prove four elements: (1) that the original case was terminated in favor of the plaintiff, (2) that the defendant played an active role in the original case, (3) that the defendant did not have probable cause or reasonable grounds to support the original case, and (4) that the defendant initiated or continued the initial case with an improper purpose. Each of these elements presents a challenge to the plaintiff.

The Original Case Was Terminated in Favor of the Plaintiff The original case must end before the defendant or respondent in that case may file a malicious prosecution suit. This requirement is relatively easy to prove. The original case qualifies as a prosecution if the defendant or respondent had to appear in court. The original case need not have gone to trial: it is enough that the defendant or respondent was forced to answer to a complaint in court. If the original case is being appealed, it is not considered terminated, and the defendant or respondent must wait to file a malicious prosecution suit.

To proceed with a malicious prosecution claim, the plaintiff must show that the original case was concluded in her or his favor. Generally, if the original case was a criminal prosecution, it must have been dismissed by the court, rejected by the Grand Jury, abandoned by the prosecutor, or decided in favor of the accused at trial or on appeal. If the original case was a civil suit, the respondent must have won at trial or the trial court must have disposed of the case in favor of the respondent (now the plaintiff).

If recovery by the plaintiff in a civil action was later reversed on appeal, this does not mean that the action was terminated in favor of the respondent. However, if the plaintiff in the original case won by submitting fabricated evidence or by other fraudulent activity, a reversal on such grounds may be deemed a termination in favor of the respondent. A settlement between the plaintiff and the respondent in a civil suit is not a termination in favor of the respondent. Likewise, courts do not consider a plea bargain in a criminal case to be a termination in favor of the defendant.

The Defendant Played an Active Role in the Original Case In a malicious prosecution suit, the plaintiff must prove that the defendant played an active role in procuring or continuing the original case. The plaintiff must prove that the defendant did more than simply participate in the original case. False testimony alone, for example, does not constitute malicious prosecution. Moreover, witnesses are immune from suit for Defamation, even if they lie on the witness stand. Such is the case because the concept of a fair and free trial requires that witnesses testify without fear of having to defend a defamation suit owing to their testimony.

An action for malicious prosecution focuses on the abuse of legal process, not on defamatory, untruthful statements. If a person helps another person launch a baseless case or takes action to direct or aid such a case, the first person may be held liable for malicious prosecution. The defendant must have been responsible in some way for the institution or continuation of the baseless case. This position of responsibility does not always include criminal prosecutors and civil plaintiffs. For example, if a prosecutor bringing criminal charges is tricked into prosecuting the case by an untruthful third party, the deceiving party is the one who may be found liable for malicious prosecution, not the prosecutor.

The Defendant Did Not Have Probable Cause to Support the Original Case The plaintiff must prove that the person who began or continued the original case did not have probable cause to do so. Generally, this means proving that the person did not have a reasonable belief in the plaintiff's guilt or liability. In examining this element, a court will look at several factors, including the reliability of all sources, the availability of information, the effort required to obtain information, opportunities given to the accused to offer an explanation, the reputation of the accused, and the necessity in the original case for speedy judicial action.

A failure to fully investigate the facts surrounding a case may be sufficient to prove a lack of probable cause. The termination of the original case in favor of the original defendant (now the plaintiff) may help to prove a lack of probable cause, but it may not be decisive on the issue. The plaintiff should present enough facts to allow a reasonable person to infer that the defendant acted without a reasonable belief in the plaintiff's guilt or liability in beginning or continuing the original case.

In a criminal case, an acquittal does not constitute a lack of probable cause. A criminal defendant stands a better chance of proving lack of probable cause if the original case was dismissed by prosecutors, a grand jury, or the court before the case went to trial. The criminal process provides several safeguards against prosecutions that lack probable cause, so a full criminal trial tends to show the presence of probable cause. Civil cases do not have the same safeguards, so a full civil trial does not tend to prove probable cause.

The Defendant Initiated or Continued the Original Case with an Improper Purpose In a malicious prosecution, the plaintiff must prove with specific facts that the defendant instituted or continued the original proceeding with an improper purpose. Sheer ill will constitutes an improper purpose, and it may be proved with facts that show that the defendant resented the plaintiff or wanted somehow to harm the plaintiff. However, the plaintiff does not have to prove that the defendant felt personal malice or hostility toward the plaintiff. Rather, the plaintiff need only show that the defendant was motivated by something other than the purpose of bringing the plaintiff to justice.

Few defendants admit to improper purposes, so improper purpose usually must be inferred from facts and circumstances. If the plaintiff cannot discover any apparent purpose, improper purpose can be inferred from the lack of probable cause.

Hodges v. Gibson Products Co. Hodges v. Gibson Products Co., 811 P.2d 151 (Utah 1991), contained all the elements of a malicious prosecution. According to Chad Crosgrove, the manager of Gibson Discount Center in West Valley, Utah, store money was noticed missing during the afternoon of September 4, 1981. Both Crosgrove and part-time bookkeeper Shauna Hodges had access to the money, and both denied taking it. On September 9 Crosgrove and Gibson officials went to the local police station, where they lodged an accusation of theft against Hodges. Crosgrove was not accused. Hodges was arrested, handcuffed, and taken to jail. After a Preliminary Hearing, she was released on bail and ordered to return for trial on May 12, 1982.

After Hodges was formally charged, an internal audit at Gibson revealed that Crosgrove had embezzled approximately $9,000 in cash and goods from the store. The thefts had occurred over a time period that included September 4, 1981. Gibson still did not charge Crosgrove with theft. Instead, it allowed him to resign with a promise to repay the money.

The night before Hodges's trial was to begin, and almost two months after Crosgrove's Embezzlement was discovered, management at Gibson notified Hodges's prosecutor of Crosgrove's activities. The prosecutor immediately dropped the charges against Hodges. Hodges then filed a suit for malicious prosecution against Gibson and against Crosgrove.

At trial Hodges was able to prove all the elements of malicious prosecution to the jury's satisfaction: (1) She had been subjected to prosecution for theft, and the matter had been terminated in her favor. (2) She had sued the correct parties, because Gibson and Crosgrove were responsible for instituting the original proceedings against her. (3) She had ample evidence that the original prosecution was instituted without probable cause because Gibson failed to investigate Crosgrove until after she had been arrested and because the prosecutor dismissed the charges against her. (4) Finally, there were enough facts for the jury to infer that both Gibson and Crosgrove had acted with improper motive: Gibson had acted with an apparent bias against Hodges, and Crosgrove apparently had accused Hodges for self-preservation. The jury awarded Hodges a total of $88,000 in damages: $77,000 from Gibson, and $11,000 from Crosgrove. The verdict was upheld on appeal.


The plaintiff in an action for malicious prosecution can recover money from the defendant for certain harms suffered. Typical injuries include loss of reputation and credit, humiliation, and mental suffering. If the original action was a criminal case, additional harms often include discomfort, injury to health, loss of time, and deprivation of society with family.

If the plaintiff suffered an economic loss directly related to the original action, the plaintiff can also recover the amount lost. This amount includes attorneys' fees and court costs incurred by the plaintiff in defending the original case.

Finally, the plaintiff may recover Punitive Damages. Punitive damages are imposed by judges and juries to punish misconduct by a party. Because an action for malicious prosecution requires proof of improper intent on the part of the defendant, punitive damages commonly are awarded to malicious prosecution plaintiffs who win damages awards.

Other Considerations

Actions for malicious prosecution must compete against the public interest in allowing parties to pursue cases unfettered by the specter of a retaliatory case. Very few civil or criminal cases result in an action for malicious prosecution. This is because it is difficult to prove that the defendant procured or continued the original case without probable cause and with an improper purpose.

Another difficulty for the plaintiff in an action for malicious prosecution is immunity. Generally, the law protects witnesses, police officers, judges, prosecutors, and lawyers from suit for malicious prosecution. Witnesses are given immunity because justice requires that they testify without fear of reprisals. Law enforcement and judicial officers are given immunity because they must be free to perform their duties without continually defending against malicious prosecution cases.

There are exceptions, however. If a law enforcement or judicial official ventures outside the bounds of official duties to instigate or continue a malicious prosecution, the official may be vulnerable to a malicious prosecution suit. For example, a prosecutor who solicits fabricated testimony to present to a grand jury may be sued for malicious prosecution. The prosecutor would receive only limited immunity in this instance because the solicitation of evidence is an administrative function, not a prosecutorial function (Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 [1993]).

Private parties may also at times enjoy immunity from actions for malicious prosecution. For example, a person who complains to a disciplinary committee about an attorney may be immune. This general rule is followed by courts to avoid discouraging the reporting of complaints against attorneys.

Further readings

American Law Institute. Restatement (Second) of Torts, div. 7, ch. 29, topic 2, §§659–661. 1977. St. Paul, Minn.: American Law Institute.

Cooper, David R. 1993. "Attorneys as Plaintiffs: Absolute Immunity for Ethics Complainants Bars Suit by Attorney for Malicious Prosecution (Jarvis v. Drake, 250 Kan. 645, 830 P.2d 23 [1992])." Washburn Law Journal 32.

Linscott, Steven, and Randall L. Frame. 1994. Maximum Security: The True Story of Steven Linscott. Wheaton, Ill.: Crossway Books.

Schillaci., Jacques L. 2002. "Unexamined Premises: Toward Doctrinal Purity in §1983 Malicious Prosecution Doctrine." Northwestern University Law Review 97 (fall).

Sherwood, Carlton. 1991. Inquisition: The Persecution and Prosecution of the Reverend Sun Myung Moon. Washington, D.C.: Regnery Gateway.

Silver, Isidore. 1989. Police Civil Liability: Law and Practice. New York: Matthew Bender.Toomey, Kate A. 2002. "Practice Pointer: The Rule Against Threatening Criminal Prosecution to Gain an Advantage in a Civil Matter. Utah Bar Journal 15 (December).

Weber, Christopher W. 1994. "The Loss of Consortium-Malicious Prosecution Nexus: No Recovery for Loss of Spousal Consortium Absent Physical Injury and No Recovery for Malicious Prosecution Beyond the Person Prosecuted: Browning Ferris Industries v. Lieck, 881 S.W.2d 288 (Tex. 1994)." Texas Tech Law Review 26.

Zbytowski, Jennifer S. 1995. "The Case Against Section 1983 Immunity for Witnesses Who Conspire with a State Official to Present Perjured Testimony." Michigan Law Review 93.


False Arrest; Malice; Probable Cause; Tort Law.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

malicious prosecution

n. filing a lawsuit with the intention of creating problems for the defendant such as costs, attorneys fees, anguish, or distraction when there is no substantial basis for the suit. If the defendant in the lawsuit wins, and has evidence that the suit was filed out of spite and without any legal or factual foundation, he/she may, in turn, sue for damages against the person who filed the original action. If malice is clearly proved against the party who brought the original suit, punitive damages may be awarded along with special and general damages. In recent cases, courts have ruled that an attorney who knowingly assists a client in filing a worthless lawsuit out of malice or spite may be liable for damages along with the client. The suit by the victim to recover damages for a malicious prosecution cannot be filed until the original law suit is decided in favor of the victim. (See: malice)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

malicious prosecution

a tort of abuse of legal procedure. It consists in the defendant maliciously initiating proceedings, ending in favour of the plaintiff, where there was no reasonable cause for the prosecution, causing damage to the plaintiff Malice for these purposes covers not only spite and ill-will but also any motive other than a desire to bring a criminal to justice.
Collins Dictionary of Law © W.J. Stewart, 2006

MALICIOUS PROSECUTION, or MALICIOUS ARREST, torts, or remedies. These terms import a wanton prosecution or arrest, made by a prosecutor in a criminal proceeding, or a plaintiff in a civil suit, without probable cause, by a regular process and proceeding, which the facts did not warrant, as appears by the result.
     2. This definition will be analysed by considering, 1. The nature of the prosecution or arrest. 2. Who is liable under it. 3. What are malice and probable cause. 4. The proceedings. 5. The result of the prosecution and afterwards, 6. The remedy.
     3.-Sec. 1. Where the defendant commenced a criminal prosecution wantonly and in other respects against law, he will be responsible. Addis. R. 270; 12 Conn. 219. The prosecution of a civil suit, when malicious, is a good cause of action, even when there has been no arrest. 1 P. C. C. 210; 11 Conn. 582; 1 Wend. 345. But no action lies for commencing a civil action, though without sufficient cause. 1 Penna. R. 235.
     4.-Sec. 2. The action lies against the prosecutor and even against a mere informer, when the proceedings are malicious. 5 Stew. & Port. 367. But grand jurors are not liable to an action for a malicious prosecution, for information given by them to their fellow jurors, on which a prosecution is founded. Hardin, 556. Such action lies against a plaintiff in a civil action who maliciously sues out the writ and prosecutes it; 16 Pick. 453; but an action does not lie against an attorney at law for bringing the action, when regularly employed. 16 Pick. 478. See 6 Pick. 193.
     5.-Sec. 3. There must be malice and want of probable cause. 1 Wend. 140, 345; 7 Cowen, 281; 2 P. A. Browne, Appx. xlii; Cooke, 90; Litt. Sel. Cas. 106; 4 Litt. 334; 3 Gil. & John. 377; 1 N. & M. 36; 12 Conn. 219; 3 Call. 446; 2 Hall, 315; 3 Mason, 112, 2 N. & M. 54,143. See Malice; Probable cause.
     6.-Sec. 4. The Proceedings under which the original prosecution or action was held, must have been regular, in the ordinary course of justice, and before a tribunal having power to ascertain the truth or falsity of the charge, and to punish the supposed offender, the now plaintiff. 3 Pick. 379, 383. When the proceedings are irregular, the prosecutor is a trespasser. 3 Blackf. 210. See Regular and irregular process.
     7.-Sec. 5. The malicious prosecution or action must be ended, and the plaintiff must show it was groundless, either by his acquittal or by obtaining a final judgment in his favor in a civil action. 1 Root, R. 553; 1 N. & M. 36; 2 N. & M. 54, 143; 7 Cowen, 715; 2 Dev. & Bat. 492.
     8.-Sec. 6. The remedy for a malicious prosecution is an action on the case to recover damages for the injury sustained. 5 Stew. & Porter, 367; 2 Conn. 700; 11 Mass 500; 6 Greenl. 421; 3 Gill. & John. 377. See Case; Regular and irregular process.
     See, generally, Bull. N. P. 11; 1 Saund. 228; 12 Mod. 208; 1 T. R. 493 to 551; Bac. Ab. Actions on the case, H; Bouv. Inst. Index, h.t.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
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