What is Malicious Prosecution?

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  • Written By: Alexis W.
  • Edited By: C. Wilborn
  • Last Modified Date: 29 February 2020
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Malicious prosecution is when one party files an untrue or baseless legal complaint against another. It is an intentional tort recognized in the common law system of the United States. A malicious prosecution action is a lawsuit brought by the person who has experienced improper prosecution.

Malicious prosecution can take several forms. A person can maliciously institute an untrue criminal complaint against another party. This untrue complaint can lead the victim of the malicious claims to be subject to a criminal trial or a criminal investigation. A person can also bring a malicious tort claim against another. This improper civil suit, like an improper criminal allegation, could be considered a form of malicious prosecution.

The exact nature of the malicious prosecution tort varies from jurisdiction to jurisdiction. In the United States, for example, in some states there are three elements of the tort. In Canada similar rules apply, while in England and some areas of the United States, the party bringing the suit must prove that they suffered damages from the malicious civil or criminal prosecution other than the suit itself.


In most jurisdictions, the first element of a suit based on malicious prosecution is that the tortfeasor, the person committing the tort, intentionally and maliciously instituted or caused to be instituted a legal action. The second element is that the action is brought without cause. The third element is that the original suit was dismissed in the favor of the victim suing for the malicious suit.

A person who is prosecuted maliciously is usually entitled to recover damages from the person who instituted the malicious action. These damages are monetary damages. They include actual losses, and may include pain and suffering since the tort is an intentional tort.

Prosecutors in most jurisdictions are immune from a suit for maliciously prosecuting an individual. In some parts of Canada, however, this immunity has been tempered or modified so there is no absolute prosecutorial immunity. Prosecutors still must avoid maliciously prosecuting someone, as they swear an oath when they become officers of the court.

The tort of malicious prosecution exists because the courts want to protect an innocent party from being subject to harassing litigation. Otherwise, a person could use the court system — or the threat of criminal or civil prosecution — improperly. The victim who is maliciously prosecuted could also face serious financial loss.


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Post 3

@Vincenzo -- the legal system is doing something about malicious prosecution. The primary instrument used is the code of ethics in various states that punish those attorneys involved in malicious prosecution. The theory seems to be that attorneys are often co-conspirators, at the very least, in malicious actions. If the lawyers are punished, they will be less likely to bring those actions.

That is a theory, of course, and we don't yet know how sound it is.

Post 2

In the United States it is very difficult to file a suit for malicious prosecution and win it. As the article points out prosecutors are usually immune from such actions. In civil cases, courts generally find a good reason for initiating an action and prosecution is not malicious if there was any reason (even a small one) for filing.

The legal system really needs to address this issue to avoid abuse of people who have done no wrong but have to deal with an expensive and time consuming lawsuit that was brought on by malice.

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