Malicious Prosecution

Malicious prosecution it a legal term that refers to the filing of a civil or criminal case that has no probable cause, and is filed for some purpose other than obtaining justice. When such a case is decided in favor of the defendant, he may turn around and file a civil lawsuit against the plaintiff or prosecutor for malicious prosecution, seeking damages. To explore this concept, consider the following malicious prosecution definition.

Definition of Malicious Prosecution


  1. A prosecution that occurs without probable cause and causes damage.

What is Malicious Prosecution

When a person files a civil lawsuit, or a prosecutor brings criminal charges against an individual without good cause, maliciously, or for an inappropriate reason, the defendant may have the right to seek justice by filing a malicious prosecution lawsuit against him. Malicious prosecution is a “tort,” which means that it is a specific wrongdoing for which a person may sue the wrongdoer for forcing him to defend himself in the original case.

Laws governing malicious prosecution vary by state, and generally must be filed within a certain amount of time after the malicious case is resolved by dismissal or judgment. Malicious prosecution is part of common law, rather than legislated law, and endeavors to prevent abuse of the legal system. Such goals as damaging the defendant’s reputation, harassing the defendant, or attempting to place blame on a defendant other than the person who actually did wrong, are examples of abuse of the legal system.

Example of Malicious Prosecution in a Criminal Case

Marty, a county prosecutor, is running for mayor in his town. When he loses the election, he strongly believes a successful businessman in the area sabotaged his campaign. As lead prosecutor in the town, Marty charges the man with attempting to bribe public officials. The man’s attorney discovers that Marty has no actual evidence that points to his client’s guilt, and presses to have the charges dropped.

Over the course of several months until the charges are dropped, the man had paid over $5,000 in attorney’s fees, and the accusations cause him to lose business. The man files a civil lawsuit against Marty for malicious prosecution. He argues that Marty had abused the legal system, as well as his authority as a prosecutor, for the purpose of damaging his reputation. The businessman asks the court to award him damages for his losses, including his attorney’s fees, and loss of reputation.

Elements of Malicious Prosecution

In order to be successful in this type of lawsuit, certain elements of malicious prosecution must be proven. If any one of the following four elements is missing, the case is likely to be dismissed, or a judgment entered against the plaintiff.

  1. The original case was terminated in favor of the plaintiff (who was the defendant in the original case) – this case must have ended before a malicious prosecution suit can be filed.
  2. The defendant filed, or played an active role in, the original case – the defendant must have been responsible for bringing the original case, not simply have been a participant in the case or trial.
  3. The defendant had no reasonable grounds, or probable cause, to file and pursue the original case – it must be proven that the defendant had no actual belief that the plaintiff was guilty or liable in the original case.
  4. The defendant filed or pursued the original case for an improper purpose – it must be proven that the defendant pursued the original case for an abusive purpose, such as a desire to ruin the plaintiff’s reputation, or simply out of malice or ill will.

Prosecutorial Immunity

State and federal laws grant what is known as prosecutorial immunity to prosecutors and other law enforcement officials. This helps ensure prosecutors are able to do their jobs without constantly facing malicious prosecution lawsuits. The are limits to the protections provided by prosecutorial immunity, however. If a defendant in a criminal case that is ultimately dismissed can prove that the prosecutor had acted outside his normal scope of authority in pursuing the case, the prosecutor may not be covered by prosecutorial immunity.

Damages for Malicious Prosecution

When a plaintiff is successful in his case, damages for malicious prosecution may be substantial. If the plaintiff has been able to prove monetary damages, such as lost wages, or loss of employment, attorney’s fees paid in defense of the claim, and other costs, he may be awarded the full amount proven. In addition, the plaintiff may be awarded compensation for damage to his reputation, and pain and suffering. Depending on the circumstances, the court may even order the defendant to pay punitive damages.

Example of Damages for Malicious Prosecution

When Tanya’s ex-husband Ralph discovers she is dating his accountant Jeff, he becomes very angry. Ralph decides to get revenge on Jeff by claiming Jeff embezzled money from his account, then filing a civil lawsuit. At trial, nearly a year later, it is quickly determined that there is virtually no evidence that Jeff is guilty of any wrongdoing, and that Ralph filed the case out of malice. The case is dismissed. Unfortunately, the accusations and investigation into the case caused Jeff to lose his job.

Jeff then files a lawsuit against Ralph for malicious prosecution. When all of the facts have been proven, the judge finds in favor of Jeff, and awards him a full year’s worth of lost wages, amounting to $54,000, the full amount of his attorney’s fees, in the amount of $8,500, and $10,000 for the damage to his professional reputation.

In this example of malicious prosecution, the court also orders Ralph to pay another $10,000 in punitive damages to punish him for intentionally planning and taking action to ruin Ralph’s reputation, causing him to lose his employment. In this example of damages for malicious prosecution, the wrongdoer was ordered to pay a total of $82,500.

Example of Malicious Prosecution Case

On September 4, 1981, the manager of Gibson Discount Center, Chad Crosgrove, found that money was missing from the store accounts. Besides Crosgrove, the store’s part-time bookkeeper, Shauna Hodges, had access to the money, though both denied taking it. A few days later, Crosgrove and other Gibson officials filed a complaint at the police station, accusing Hodges of the theft. Hodges was arrested and taken to jail. After a preliminary hearing, she was released from jail and ordered to appear at her trial, on May 12, 1982.

After Hodges had been formally charged with the theft, Gibson officials performed an internal audit, which revealed that Crosgrove had, in fact, embezzled about $9,000 from the store over a period of time, which included the September 4th theft. Rather than notify the prosecution of their findings, in order that Hodges might be exonerated, and Crosgrove charged, Gibson officials remained quiet, and allowed Crosgrove to resign his position, promising to repay the money he stole.

It wasn’t until the night before Hodges’ trial was to begin, nearly two whole months after Crosgrove’s theft was discovered, that Gibson notified the prosecutor. While the prosecutor immediately dropped the charges against Hodges, she had been made to suffer the stigma and stress of the situation for much longer than necessary, simply because of Gibson’s actions.

Hodges filed a civil lawsuit for malicious prosecution against both her employer, Gibson, and Chad Crosgrove. At the trial, Hodges sufficiently proved each required element of malicious prosecution to the jury:

  1. She had faced prosecution for the theft, and the case had been terminated in her favor.
  2. The parties she had sued were responsible for both initiating the proceedings against her, and for allowing the proceedings to continue even when they discovered her innocence.
  3. The original prosecution was initiated without probable cause, as Gibson Discount Center failed to even investigate Crosgrove until after Hodges had been arrested and charged, and Crosgrove had accused her to cover his own guilt.
  4. Both Gibson and Crosgrove had acted with an inappropriate motive, as Gibson apparently had some bias against Hodges, and Crosgrove acted in self-preservation.

The jury found in favor of Shauna Hodges, awarding her $77,000 from Gibson, and $11,000 from Crosgrove, for a total of $88,000.

Related Legal Terms and Issues

  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person. 
  • Criminal Charge – A formal accusation by a prosecuting authority that an individual has committed a crime.
  • Damages – A monetary award in compensation for a financial loss, loss of or damage to personal or real property, or an injury.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Due Process – The fundamental, constitutional right to fair legal proceedings in which all parties will be given notice of the proceedings, and have an opportunity to be heard.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Intent – A resolve to perform an act for a specific purpose; a resolution to use a particular means to a specific end.
  • Punitive Damages – Money awarded to the injured party above and beyond their actual damages. Punitive damages may be awarded in cases where the defendant’s actions in regard to the case are malicious, or so reckless as to give a reasonable person pause. Punitive damages, also referred to as “exemplary damages,” are ordered for the purpose of punishing the wrongdoer for outrageous misconduct in a civil matter.