An action for damages brought by one against whom a civil suit or criminal proce

eding has been unsuccessfully commenced without Probable Cause and for a purpos
e other than that of bringing the alleged offender to justice. An action for mal
icious prosecution is the remedy for baseless and malicious lit igation. It is n
ot limited to criminal prosecutions but may be brought in respon se to any basel
ess and malicious litigation or prosecution, whether criminal or civil. The crim
inal defendant or civil respondent in a baseless and malicious ca se may later f
ile this claim in civil court against the parties who too an acti ve role in ini
tiating or encouraging the original case. The defendant in the ini tial case bec
omes the plaintiff in the malicious prosecution suit, and the plain tiff or pros
ecutor in the original case becomes the defendant. In most states th e claim mus
t be filed within a year after the end of the original case. A claim of maliciou
s prosecution is a tort action. A tort action is filed in civ il court to recove
r money damages for certain harm suffered. The plaintiff in a malicious prosecut
ion suit see s to win money from the respondent as recompense for the various co
sts associated with having to defend against the baseless and vexatious case. Th
e public policy that supports the action for malicious prosecution is the disc o
uragement of Vexatious Litigation. This policy must compete against one that fa
vors the freedom of law enforcement officers, judicial officers, and private cit
izens to participate and assist in the administration of justice. In most juris
dictions an action for malicious prosecution is governed by the Com mon Law. Thi
s 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 tha
t give certain persons Immunity from malicious prosecution for certa in acts. In
Colorado, for example, a merchant, a merchant's employee, or a polic e officer,
who reasonably suspects that a theft has occurred, may detain and que stion the
suspect without fear of liability for slander, false arrest, False Imp risonmen
t, unlawful detention, or malicious prosecution (Colo. Rev. Stat. Ann. 1 8-4-407
[West 1996]). An action for malicious prosecution is distinct from an action fo
r false arrest or false imprisonment. If a person is arrested by a police office
r who lac s leg al 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 fo r false imprisonment. An action for malicious prosecution is ap
propriate only wh en 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 t he
defendant played an active role in the original case, (3) that the defendant di
d not have probable cause or reasonable grounds to support the original case, an
d (4) that the defendant initiated or continued the initial case with an impro p
er purpose. Each of these elements presents a challenge to the plaintiff. The Or
iginal Case Was Terminated in Favor of the Plaintiff The original case mus t end
before the defendant or respondent in that case may file a malicious prose cuti
on suit. This requirement is relatively easy to prove. The original case qua lif
ies as a prosecution if the defendant or respondent had to appear in court. T he
original case need not have gone to trial: it is enough that the defendant or r
espondent was forced to answer to a complaint in court. If the original case i s
being appealed, it is not considered terminated, and the defendant or responde
nt 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 accus
ed 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 fav
o r of the respondent (now the plaintiff). If recovery by the plaintiff in a civ
il action was later reversed on appeal, thi s does not mean that the action was
terminated in favor of the respondent. Howev er, if the plaintiff in the origina
l case won by submitting fabricated evidence or by other fraudulent activity, a
reversal on such grounds may be deemed a term ination in favor of the respondent
. A settlement between the plaintiff and the r espondent in a civil suit is not
a termination in favor of the respondent. Li ew ise, courts do not consider a pl
ea bargain in a criminal case to be a terminatio n in favor of the defendant. Th
e Defendant Played an Active Role in the Original Case In a malicious prosecut i
on suit, the plaintiff must prove that the defendant played an active role in p
rocuring or continuing the original case. The plaintiff must prove that the defe
ndant did more than simply participate in the original case. False testimony al
o ne, for example, does not constitute malicious prosecution. Moreover, witnesse
s are immune from suit for Defamation, even if they lie on the witness stand. Su
ch is the case because the concept of a fair and free trial requires that witnes
se s testify without fear of having to defend a defamation suit owing to their t
est imony. An action for malicious prosecution focuses on the abuse of legal pro
cess, not o n defamatory, untruthful statements. If a person helps another perso
n launch a b aseless case or ta es action to direct or aid such a case, the firs
t person may be held liable for malicious prosecution. The defendant must have b
een responsib le in some way for the institution or continuation of the baseless
case. This po sition of responsibility does not always include criminal prosecu
tors and civil plaintiffs. For example, if a prosecutor bringing criminal charge
s is tric ed in to prosecuting the case by an untruthful third party, the deceiv
ing 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 Ca
se The plain tiff 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 t
he person did not have a reasonable belief in the plaintiff's guilt or liability
. In examinin g this element, a court will loo at several factors, including the
reliability of all sources, the availability of information, the effort require
d to obtain i nformation, opportunities given to the accused to offer an explana
tion, the repu tation of the accused, and the necessity in the original case for
speedy judicia l action. A failure to fully investigate the facts surrounding a
case may be sufficient to prove a lac of probable cause. The termination of the
original case in favor o f the original defendant (now the plaintiff) may help
to prove a lac of probabl e cause, but it may not be decisive on the issue. The
plaintiff should present e nough facts to allow a reasonable person to infer tha
t the defendant acted witho ut a reasonable belief in the plaintiff's guilt or l
iability in beginning or con tinuing the original case. In a criminal case, an a
cquittal does not constitute a lac of probable cause. A criminal defendant stand
s a better chance of proving lac of probable cause if the original case was dism
issed by prosecutors, a grand jury, or the court befor e the case went to trial.
The criminal process provides several safeguards again

st prosecutions that lac 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 Initiate
d or Continued the Original Case with an Improper Purpose In a malicious prosecu
tion, the plaintiff must prove with specific facts that th e defendant institute
d or continued the original proceeding with an improper pur pose. 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 h arm the plaintiff.
However, the plaintiff does not have to prove that the defend ant felt personal
malice or hostility toward the plaintiff. Rather, the plaintif f need only show
that the defendant was motivated by something other than the pu rpose of bringin
g the plaintiff to justice. Few defendants admit to improper purposes, so improp
er purpose usually must be i nferred from facts and circumstances. If the plaint
iff cannot discover any appar ent purpose, improper purpose can be inferred from
the lac of probable cause. Hodges v. Gibson Products Co. Hodges v. Gibson Produ
cts Co., 811 P.2d 151 (Utah 1991), contained all the elements of a malicious pro
secution. According to Chad Crosgrove, the manager of Gibson Discount Center in
West Valley, Utah, store mon ey was noticed missing during the afternoon of Sept
ember 4, 1981. Both Crosgrove and part-time boo eeper Shauna Hodges had access t
o the money, and both denied ta ing it. On September 9 Crosgrove and Gibson offi
cials went to the local poli ce station, where they lodged an accusation of thef
t against Hodges. Crosgrove w as not accused. Hodges was arrested, handcuffed, a
nd ta en to jail. After a Prel iminary Hearing, she was released on bail and ord
ered to return for trial on May 12, 1982. After Hodges was formally charged, an
internal audit at Gibson revealed that Cro sgrove had embezzled approximately $9
,000 in cash and goods from the store. The thefts had occurred over a time perio
d that included September 4, 1981. Gibson s till did not charge Crosgrove with t
heft. Instead, it allowed him to resign with a promise to repay the money. The n
ight before Hodges's trial was to begin, and almost two months after Crosgr ove'
s Embezzlement was discovered, management at Gibson notified Hodges's prosec uto
r of Crosgrove's activities. The prosecutor immediately dropped the charges a ga
inst Hodges. Hodges then filed a suit for malicious prosecution against Gibson a
nd against Crosgrove. At trial Hodges was able to prove all the elements of mali
cious prosecution to t he jury's satisfaction: (1) She had been subjected to pro
secution for theft, and the matter had been terminated in her favor. (2) She had
sued the correct parti es, because Gibson and Crosgrove were responsible for in
stituting the original p roceedings against her. (3) She had ample evidence that
the original prosecution was instituted without probable cause because Gibson f
ailed to investigate Cros grove until after she had been arrested and because th
e prosecutor dismissed the charges against her. (4) Finally, there were enough f
acts for the jury to infer that both Gibson and Crosgrove had acted with imprope
r motive: Gibson had acted with an apparent bias against Hodges, and Crosgrove a
pparently had accused Hodg es for self-preservation. The jury awarded Hodges a t
otal of $88,000 in damages: $77,000 from Gibson, and $11,000 from Crosgrove. The
verdict was upheld on appe al. Damages The plaintiff in an action for malicious
prosecution can recover money from the defendant for certain harms suffered. Ty
pical injuries include loss of reputatio n and credit, humiliation, and mental s
uffering. If the original action was a cr

iminal case, additional harms often include discomfort, injury to health, loss o
f time, and deprivation of society with family. If the plaintiff suffered an ec
onomic loss directly related to the original acti on, the plaintiff can also rec
over the amount lost. This amount includes attorne ys' fees and court costs incu
rred by the plaintiff in defending the original cas e. Finally, the plaintiff ma
y recover Punitive Damages. Punitive damages are impose d by judges and juries t
o punish misconduct by a party. Because an action for ma licious prosecution req
uires proof of improper intent on the part of the defenda nt, punitive damages c
ommonly are awarded to malicious prosecution plaintiffs wh o win damages awards.
Other Considerations Actions for malicious prosecution must compete against the
public interest in al lowing 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 defenda
nt procured or continue d the original case without probable cause and with an i
mproper purpose. Another difficulty for the plaintiff in an action for malicious
prosecution is i mmunity. Generally, the law protects witnesses, police officer
s, judges, prosecu tors, and lawyers from suit for malicious prosecution. Witnes
ses are given immun ity because justice requires that they testify without fear
of reprisals. Law en forcement 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 venture s outside the bounds of official duties to instiga
te or continue a malicious pro secution, the official may be vulnerable to a mal
icious prosecution suit. For ex ample, a prosecutor who solicits fabricated test
imony to present to a grand jury may be sued for malicious prosecution. The pros
ecutor would receive only limite d immunity in this instance because the solicit
ation of evidence is an administr ative function, not a prosecutorial function (
Buc ley v. Fitzsimmons, 509 U.S. 2 59, 113 S. Ct. 2606, 125 L. Ed. 2d 209 [1993]
). Private parties may also at times enjoy immunity from actions for malicious p
ros ecution. For example, a person who complains to a disciplinary committee abo
ut a n attorney may be immune. This general rule is followed by courts to avoid
disco uraging the reporting of complaints against attorneys. Further readings Am
erican Law Institute. Restatement (Second) of Torts, div. 7, ch. 29, topic 2, 65 96
61. 1977. St. Paul, Minn.: American Law Institute. Cooper, David R. 1993. "Attor
neys as Plaintiffs: Absolute Immunity for Ethics Co mplainants Bars Suit by Atto
rney for Malicious Prosecution (Jarvis v. Dra e, 250 Kan. 645, 830 P.2d 23 [1992
])." Washburn Law Journal 32. Linscott, Steven, and Randall L. Frame. 1994. Maxi
mum Security: The True Story o f Steven Linscott. Wheaton, Ill.: Crossway Boo s.
Schillaci., Jacques L. 2002. "Unexamined Premises: Toward Doctrinal Purity in 19
8 3 Malicious Prosecution Doctrine." Northwestern University Law Review 97 (fall
). Sherwood, Carlton. 1991. Inquisition: The Persecution and Prosecution of the
Rev erend Sun Myung Moon. Washington, D.C.: Regnery Gateway.

Silver, Isidore. 1989. Police Civil Liability: Law and Practice. New Yor : Matth
ew Bender. Toomey, Kate A. 2002. "Practice Pointer: The Rule Against Threatenin
g Criminal P rosecution to Gain an Advantage in a Civil Matter. Utah Bar Journal
15 (December ). Weber, Christopher W. 1994. "The Loss of Consortium-Malicious P
rosecution Nexus: No Recovery for Loss of Spousal Consortium Absent Physical Inj
ury and No Recove ry for Malicious Prosecution Beyond the Person Prosecuted: Bro
wning Ferris Indus tries v. Liec , 881 S.W.2d 288 (Tex. 1994)." Texas Tech Law R
eview 26. Zbytows i, Jennifer S. 1995. "The Case Against Section 1983 Immunity f
or Witness es Who Conspire with a State Official to Present Perjured Testimony."
Michigan L aw Review 93. Cross-references False Arrest; Malice; Probable Cause;
Tort Law. West's Encyclopedia of American Law, edition 2. Copyright 2008 The Ga
le Group, I nc. All rights reserved. malicious prosecution n. filing a lawsuit w
ith the intention of creating problem s for the defendant such as costs, attorne
ys 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 file
d 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 br ought the original suit, punitive damage
s may be awarded along with special and general damages. In recent cases, courts
have ruled that an attorney who nowing ly assists a client in filing a worthles
s lawsuit out of malice or spite may be liable for damages along with the client
. The suit by the victim to recover dama ges for a malicious prosecution cannot
be filed until the original law suit is d ecided in favor of the victim. (See: m
alice) Copyright 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right res
erved. malicious prosecution noun indefensible proseeution, Kaf a-li e prosecuti
on, mal icious charges instituted by a prosecutor, malicious criminal enforcemen
t, malic ious pursuit by a law enforcement agency, prosecution mainnained with v
enal inte ntions, prosecution without proper procedures, reprehensible prosecuti
on, uncons cionable prosecution, unconstitutional prosecution, underhanded prose
cution, unf air prosecution, unjust and unfair pursuit of criminal charges, unju
stifiable pr osecution, unmerited prosscution, unprincipled prosecution, unscrup
ulous prosecu uion, unwarrantable prosecution, wrongful prosecution Burton's Leg
al Thesaurus, 4E. Copyright 2007 by William C. Burton. Used with per mission of
The McGraw-Hill Companies, Inc. MALICIOUS PROSECUTION, or MALICIOUS ARREST, tort
s, or remedies. These terms impo rt a wanton prosecution or arrest, made by a pr
osecutor in a criminal proceeding , or a plaintiff in a civil suit, without prob
able cause, by a regular process a nd proceeding, which the facts did not warran
t, as appears by the result. 2. This definition will be analysed by considering,
1. The nature of the pr osecution or arrest. 2. Who is liable under it. 3. What
are malice and probable cause. 4. The proceedings. 5. The result of the prosecu
tion and afterwards, 6. T he remedy. 3.-Sec. 1. Where the defendant commenced a
criminal prosecution wantonly an d in other respects against law, he will be res
ponsible. Addis. R. 270; 12 Conn. 219. The prosecution of a civil suit, when mal
icious, 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 act
ion, though without sufficient cau se. 1 Penna. R. 235.

4.-Sec. 2. The action lies against the prosecutor and even against a mere i nfor
mer, when the proceedings are malicious. 5 Stew. & Port. 367. But grand juro rs
are not liable to an action for a malicious prosecution, for information give n
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 ou
t the writ and prosecutes it; 16 Pic . 453; but an action does not lie against a
n attorney at law for bringing the action, when regularly employed. 16 Pic . 47
8 . See 6 Pic . 193. 5.-Sec. 3. There must be malice and want of probable cause.
1 Wend. 140, 34 5; 7 Cowen, 281; 2 P. A. Browne, Appx. xlii; Coo e, 90; Litt. S
el. Cas. 106; 4 L itt. 334; 3 Gil. & John. 377; 1 N. & M. 36; 12 Conn. 219; 3 Ca
ll. 446; 2 Hall, 3 15; 3 Mason, 112, 2 N. & M. 54,143. See Malice; Probable caus
e. 6.-Sec. 4. The Proceedings under which the original prosecution or action w a
s 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 p
unish the supposed offender, the now plaintiff. 3 Pic . 379, 383. When the proce
edings are irregular, the prosecutor is a trespasser. 3 Blac f. 210. See Regula
r and irregular process. 7.-Sec. 5. The malicious prosecution or action must be
ended, and the plain tiff must show it was groundless, either by his acquittal o
r by obtaining a fina l 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. Th
e 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 Gr
eenl. 421; 3 Gill. & John. 377. See Case; Regular and irregula r process. See, g
enerally, Bull. N. P. 11; 1 Saund. 228; 12 Mod. 208; 1 T. R. 493 to 5 51; Bac. A
b. 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.