What is “Malicious Prosecution”?
Malicious prosecution is wrongfully subjecting someone to the prosecutorial process. This tort often arises from causing someone to be arrested or formally charged through intentional false swearing or malevolent pretenses.
- Example: I cause the police to arrest Tom simply to harass him. I do so by stating to the police that he stole my computer, when this is not true.
Discussion: How would you propose balancing the objective of protecting the wrongfully accused against dissuading someone from pressing charges against someone who committed a crime against them?
Practice Question: Autumn cheats on her boyfriend with Isaac. She is very embarrassed when everyone, including her boyfriend, learns of her actions. To cover up her infidelity, she accuses Isaac of improperly taking advantage of her while she was intoxicated. She informs the police who proceed with pressing charges against Isaac. When pressed to take a lie detector test, Autumn comes clean and admits her false accusation. What are Isaac’s options for suing Autumn?
- Malicious prosecution occurs when one person has knowingly and with malicious intent initiated baseless litigation against another party. A successful malicious prosecution claim 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.
- The defendant has lost the original “false” case he or she brought against the plaintiff.
- The plaintiff was damaged by the defendant’s “false” case.
In the practice question, Isaac can bring a cause of action against Autumn for malicious prosecution. https://www.alllaw.com/articles/nolo/personal-injury/what-malicious-prosecution-claim.html
Achtenberg, David, With Malice Toward Some: United States V. Kirby, Malicious Prosecution, and the Fourteenth Amendment (April 24, 2008). Rutgers Law Journal, Vol. 26, No. 2, Winter 1995. Available at SSRN: https://ssrn.com/abstract=1124996
Marin, Michael, The Uncertain Scope of Malicious Prosecution: Insights from Canada (February 4, 2016). Tort Law Review, March 2016, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2728118
Yakren, Sofia, Removing the Malice from Federal ‘Malicious Prosecution’: What Cognitive Science Can Teach Lawyers About Reform. 50 Harv. C.R.-C.L. L. Rev. 359 (2015). Available at SSRN: https://ssrn.com/abstract=2513860