Misuse of legal proceedings comprise two separate torts in U.S. law: malicious prosecution and abuse of process. Most states recognize malicious prosecution and abuse of process as two separate torts with different elements. Both involve intentionally abusing the legal system to harm someone else.
What are the Elements of Malicious Prosecution?
Malicious prosecution is an intentional tort. That means that a person cannot negligently or mistakenly commit it. According to William P. Statsky, author of Torts Personal Injury Litigation, the elements of malicious prosecution are:
- Initiation or procurement of the initial criminal proceedings against someone,
- Lack of probable cause for the proceedings,
- Malice, and
- Termination of the criminal proceedings in favor of the accused.
Examining the Elements
Statsky notes that for the tort of malicious prosecution to be actionable, a criminal proceeding must actually be initiated. Simply threatening to have someone prosecuted, or even filing a criminal complaint against someone, does not amount to malicious prosecution. In most cases, the initiation of criminal proceedings means the actual filing of charges (e.g., an indictment or information) by the prosecuting authority.
Initiating criminal proceedings against someone does not amount to malicious prosecution if the complaining party had probable cause to believe the person committed a crime. Similarly, a genuine, but mistaken, belief that a crime was committed does not amount to malicious prosecution, and neither does simply cooperating with an existing criminal investigation.
Moreover, as Statsky explains, a plaintiff may prevail in a civil lawsuit for malicious prosecution only if the criminal case against the plaintiff resolved in his or her favor. This usually means that either the prosecution dropped the criminal case against the plaintiff for lack of evidence, or that the plaintiff was acquitted of the criminal charges.
In other words, the plaintiff in a malicious prosecution case must prove that he or she “won” the criminal case and not that the criminal case was resolved on a “technicality.” For instance, if the plaintiff’s criminal prosecution was dismissed because of a constitutional violation (e.g., illegal search and seizure), this would not amount to a termination of the criminal proceedings in favor of the accused.
Comparing Malicious Prosecution and Abuse of Process
Statsky explains that the tort of abuse of process differs from that of malicious prosecution in one key aspect. With respect to malicious prosecution, the person bringing the criminal proceedings in the first instance must have a malicious intent to prosecute the plaintiff without probable cause. The lack of probable cause must be evident from the outset.
By contrast, abuse of process involves the improper use of legal proceedings that may have been properly initiated. This may involve, for example, continuing to pursue legal action against someone when it has become clear through the course of the litigation that the person is not the responsible party. Once again, though, abuse of process is not a tort of negligence. The tortfeasor must have a malicious intent to continue with the legal process even in the face of knowledge that the proceeding is without merit.
Compensatory and Punitive Damages for Abusing the Legal System
A person who has been subject to either malicious prosecution or abuse of process may be entitled to compensatory and punitive damages in a civil lawsuit. Compensatory damages may include payment for such things as humiliation, mental suffering, loss of business or reputation, and the costs of defending the underlying criminal case.
Punitive damages may also be available as these torts are intentional in nature. Punitive damages are designed to punish the defendant for malicious behavior and to deter similar behavior in the future. Whether a plaintiff recovers any type of damages in a lawsuit will naturally depend on the specific facts of the case.
Disclaimer: This article is in no way intended as legal advice. For help with specific legal issues, one should contact a licensed attorney in one’s local area.
Source
William P. Statsky, Torts Personal Injury Litigation (4th ed. Delmar Learning, 2001).
Jessie Vanwinkle - Jessie Vanwinkle is an attorney in practice since 1998. View her full profile for more information.
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