What is malicious prosecution? For starters, it's a personal injury cause of action, and not a crime.
Malicious prosecution is a claim that can be raised in a lawsuit. So basically, it's a reason to sue another for wrongfully prosecuting them. It's typically raised against investigators or police officers.
It's a civil lawsuit, which means that it doesn't subject the defendant to jail time. Rather, it's a lawsuit that asks for monetary damages to make the other person whole.
In a malicious prosecution lawsuit, that could entail the paying of legal fees, lost wages and other monetary damages associated with the wrongful prosecution.
For a prosecution to be "malicious," it has to be commenced without probable cause and for a purpose other than bringing the alleged offender to justice.
There are defenses to this type of lawsuit, however. One is qualified immunity and the other is probable cause.
Police officers generally enjoy immunity from prosecution for their actions in the line of duty. To get around that, the victim has to show willful and unreasonable conduct by the police officer.
Here are four things that a plaintiff needs to show in a malicious prosecution lawsuit:
- The police officer who is being sued is the one who commenced the prosecution;
- The proceeding ended in an acquittal;
- There was no probable cause; and
- The proceeding was brought with malicious intent.
Note, however, that malicious prosecution isn't the same thing as an unfair trial. What's the difference?
A New York-based federal court addressed this issue in a case involving allegedly fabricated evidence. The defendant claimed malicious prosecution, but the court held he could only pursue claims for an allegedly unfair trial, Reuters reports. That holding was different from another court case, which found the two causes of action were "substantially the same."
While both fall under the Constitution, a malicious prosecution is the domain of a personal injury attorney, as it's a case for damages. Because the difference can be confusing, it may be wise to consult a New York personal injury attorney to help you with your claim.
- John Travolta's Attorney Threatens Accuser with Malicious Prosecution (FindLaw's Celebrity Justice)
- Conn. Cop Loses Malicious Prosecution Appeal (FindLaw's Second Circuit Blog)
- Consult a New York Personal Injury Law Attorney (FindLaw)