Suing for Damages: Malicious Prosecution in a Criminal Case

A malicious criminal prosecution happens when someone files baseless criminal charges against a defendant for an improper purpose, such as harassing them or ruining their reputation. Defendants can potentially sue prosecutors and law enforcement in civil court for malicious prosecution and ask for financial compensation. The goal of malicious prosecution lawsuits is to address and deter abuse of the legal process.

What Does an Unlawful Prosecution Look Like?

To understand malicious prosecution, it helps to look at an example. Let's say a county prosecutor, Joe Clark, runs for mayor and loses the election. He is convinced that a local business owner, Jane Vance, sabotaged his campaign. Clark decides to get even by criminally charging Vance with bribery. Clark takes the lead role in prosecuting the case but Vance's attorneys expose that the case is nothing but a vendetta that isn't supported by evidence. A judge eventually dismisses the charges but only after several months of investigation and many court hearings. Meanwhile, Vance is out thousands of dollars in attorneys' fees and her reputation and businesses have taken a hit. What are her legal options?

Vance can sue Clark for malicious prosecution and argue that Clark abused his authority as a prosecutor and the legal process by coming after her. Vance can ask for compensation for damages she suffered as a result of the criminal prosecution, such as being held in jail for several days, the cost of defending against the charges, lost business due to missed work, and damage to her reputation in the community.

How to Prove a Malicious Prosecution Case

To win a malicious protection lawsuit, Vance would have to prove four elements:

• the criminal case was resolved in her favor (here, the bribery charge was dismissed)
• Clark was actively involved in the criminal case
• Clark didn't have probable cause to file the criminal case, and
• Clark initiated or pursued the criminal case for improper purposes.

What Does "Resolved In Her Favor" Mean?

Vance (or whoever is pursuing a malicious prosecution lawsuit) must prove that the criminal case ended in her favor. She can prove this element of malicious prosecution if she can show that a grand jury refused to indict her, a judge dismissed the charges for lack of probable cause (more on that below), or potentially if a jury found her not guilty. On the other hand, if Vance was convicted or pleaded guilty to any criminal charges, she almost certainly wouldn't be able to win a malicious prosecution lawsuit.

What Counts as "Active Involvement"?

Vance must be able to prove that the prosecutor named in the suit was actively involved in the criminal case. Here, Vance can show that Clark filed the charges, handled the case, and supervised other attorneys working on the case—she can easily satisfy the "active involvement" element. If Clark had only signed off on an assistant prosecutor's paperwork and the assistant prosecutor had managed and pursued the case without the lead prosecutor's involvement, Vance might not be able to prove this element of the case.

What Is Probable Cause?

To file charges against someone, prosecutors must have probable cause to believe that person committed a crime. Probable cause is more than reasonable suspicion but less than proof beyond a reasonable doubt.

If Vance can show that the prosecutor had little to no evidence, fabricated evidence, or pursued the case without conducting a reasonable investigation, she can very likely show that Clark didn't have probable cause to file the charges.

What Is an Improper Purpose?

To prove that Clark had an improper purpose for pursuing the case, Vance must show that the prosecutor didn't just make a mistake or get bad information and reasonably rely on that information. For example, here Clark instigated the criminal case for revenge and with the intent to harass Vance and damage her reputation.

Don't Prosecutors Have Immunity?

One of the biggest challenges in malicious prosecution lawsuits based on criminal charges is government immunity. State and federal laws give prosecutors and other law enforcement employees broad immunity from liability for official acts. This immunity is meant to protect prosecutors and law enforcement so they can do their job without constantly having to defend themselves against lawsuits. The concern is that every person who claims innocence might try to sue the prosecutor for wrongful prosecution.

There are, however, limits to this immunity. If the person bringing a malicious prosecution suit can show that the prosecutor acted outside their authority, immunity might now apply. For example, a prosecutor who pays a witness to testify or creates false documents almost certainly wouldn't have immunity because those actions are outside the scope of a prosecutor's job.

An Attorney Can Help

If you've been falsely accused of a crime for an improper purpose, talk to a lawyer. You'll need to win your criminal case first and then explore filing a malicious prosecution lawsuit.