Malicious Prosecution

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Malicious prosecution has also been confused with false imprisonment. Although they are related causes of action, there is a fundamental distinction between them. If a person is detained for malicious reasons but under due form of law, the cause of action, if any, is for malicious prosecution. However, if a person is detained without valid legal authority, an action lies for false imprisonment, regardless of the existence of malice or lack of probable cause for the detention.

Although malicious prosecution, abuse of process, and false imprisonment are therefore three distinct causes of action, the facts frequently will support a claim based on each of the three, and it is generally considered proper to join such causes of action in the same suit. Furthermore, even where the plaintiff relies solely on a theory of malicious prosecution, evidence relating to false arrest may be admissible as part of the circumstances surrounding the malicious prosecution.[2]

If the plaintiff is forced to choose between an action based on abuse of process and one based on malicious prosecution, it has been argued that, assuming the facts will support either theory, the action for abuse of process is preferable, since the plaintiff can establish his case merely by showing use of process for an improper purpose, without having to show lack of probable cause or a termination favorable to him.

Chapter 2

ESSENTIALS OF MALICIOUS PROSECUTION

2.1 ELEMENTS OF ACTION FOR MALICIOUS PROSECUTION

There is general agreement among the courts concerning the elements of an action for malicious prosecution, although these elements have been stated in varying ways. Under what is perhaps the most common classification, six elements must be shown to successfully maintain an action. The plaintiff must prove:

- The institution or continuation of a legal proceeding, either civil or criminal, or an administrative or disciplinary proceeding, against the plaintiff.

- By, at the instance of, or abetted by, the defendant.

- The termination of such prior proceeding in the plaintiff's favor

- The absence of probable cause for institution of the prior proceeding

- Malice as a primary purpose for that proceeding

- Some injury or damage to the plaintiff as a result of the prior proceeding.[3]

Some courts have defined malicious prosecution as consisting of three elements, by combining the first three elements mentioned above and omitting damages as an element. Such a formulation is substantially the same as the six-element formulation, since without damages there would be nothing to recover.

Although the elements of a cause of action for malicious prosecution based on a civil suit are substantially the same as those for one based on a criminal prosecution, there are differences in the evidence necessary to make out the elements, particularly with reference to damages.

For example, in an action based on a criminal prosecution, mental suffering generally is considered an element of general damages, and no special pleading or proof is required, whereas in a civil action the plaintiff generally must prove all damages in excess of actual pecuniary loss. Furthermore, a large minority of American jurisdictions require some type of special injury when the action is based on civil proceedings.

Chapter 3

GROUNDS OF PROCEEDINGS

3.1 PROCEEDINGS ON WHICH ACTION MAY BE BASED – CRIMINAL PROCEEDINGS

The tort of malicious prosecution was originally limited to the instigation of criminal proceedings, and it is uniformly agreed that the malicious institution of unfounded criminal proceedings will give rise to a cause of action for malicious prosecution. An action will lie regardless of whether the crime charged was a felony or a misdemeanor and whether the plaintiff was actually tried or even indicted, provided that criminal proceedings were actually instituted in some manner.

Thus, for example, the instigation of criminal proceedings in an effort to collect a debt may constitute malicious prosecution, although the defendant abandoned the prior prosecution and the plaintiff was never actually tried.

A person may also recover damages for the malicious instigation of quasi-criminal proceedings, such as a hearing initiated for the purpose of requiring the plaintiff to post a bond to keep the peace.[4]

The malicious institution of extradition proceedings against the plaintiff, without probable cause to believe that the plaintiff is a fugitive from justice, will also support an action for malicious prosecution.[5]

A person may also recover damages from one who maliciously and without probable cause procures the issuance of a search warrant directed against the plaintiff. Although there is some apparent disagreement as to whether such an action is one for malicious prosecution, it is clear that the elements of such an action are the same as the elements of an action for malicious prosecution.

3.2 PROCEEDINGS ON WHICH ACTION MAY BE BASED – CIVIL ACTION

The tort of malicious prosecution has been extended to the wrongful instigation of civil proceedings, but there is a sharp difference of opinion as to the conditions necessary to the maintenance of an action for malicious prosecution of a civil suit. Under one line of authority, which appears to represent the majority rule in the United States, the malicious prosecution of a civil action without probable cause constitutes a legal wrong, for the redress of which an action for malicious prosecution may be brought.

Jurisdictions following this rule allow recovery even if the plaintiff was not arrested and his property was not interfered with in the course of the prior proceeding. A large minority of American jurisdictions require that, before an action for malicious prosecution of a civil suit can be maintained, there must have been some direct interference with the person, such as an arrest, some interference with his property rights, such as a seizure of property, or some other injury to the plaintiff which is not a necessary result of all similar prosecutions.

In support of this rule, which has been called the special injury and the English rule, it has been argued that the courts should be kept available for all citizens, and that in the ordinary civil

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