What Is Malicious Prosecution? - Injured
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What Is Malicious Prosecution?

What is malicious prosecution? It's an action for damages brought by someone who has been the subject of an unfair prosecution.

For that prosecution to be unfair, it has to have been commenced without probable cause and for a purpose other than bringing the alleged offender to justice. In other words, the charges or allegations must have been baseless.

While this may sound simple enough, malicious prosecution can actually be quite difficult to prove in court.

Proving Malicious Prosecution

In order to successfully bring a malicious prosecution lawsuit, the victim usually has to show four things:

  1. The police officer (or government agent) commenced the criminal proceeding;
  2. The proceeding ended in the victim's favor;
  3. There was no probable cause; and
  4. The proceeding was brought with malice toward the victim.

Potential Problems With Proof

One common issue facing malicious prosecution lawsuits is the probable cause element. It's tough to prove that a police officer had no probable cause.

Another problem lies with something called qualified immunity. Police officers and other government agents may be entitled to immunity from lawsuits for actions taken in the line of duty. This immunity isn't absolute, but it's pretty broad. The victim typically has to show willful and unreasonable conduct on the part of the police officer.

And here's yet another thing to consider: According to some courts, malicious prosecution and an unfair trial aren't exactly the same thing. In one New York case, the judge refused to allow a malicious prosecution claim based on fabricated evidence, Reuters reports; however, the judge did allow the plaintiff to sue based on allegations of an unfair trial. Other courts have ruled differently on the issue.

So in short: Malicious prosecution is a baseless prosecution brought against someone to harass them. If this has happened to you, you'll want an experienced civil rights lawyer to help you fight back.

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