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Essentials of Malicious Arrest Essentials of Malicious Arrest

Bronze medal Reporter Adv Jimna Posted 19 May 2019
Essentials of Malicious Arrest

What is Malicious Prosecution?

Malicious prosecution is a tort or civil claim for harm. In criminal cases, Malicious prosecution is not restricted, but any criminal or civil case where you are wrongly prosecuted or claimed.

An example of a criminal malicious prosecution case would be the police arresting and prosecuting you for theft, even though none of the proof pointed to you. A civil example could be a state’s child protective services taking away custody of someone’s children without any proof that they are unfit parents.

In both of the above examples, the wrongly accused people have the right to appeal to the state for damages due to malicious prosecution.

How do I determine Malicious Prosecution?

You must establish four different things in order to receive damages for a malicious prosecution case. The first essential is that the original case was dismissed in favor of the plaintiff. This means that the judge dismissed the claim in favor of you, not the person claiming you. If the judge specifically rejects the case and uses terms such as “malicious prosecution”, “no probable cause” or “frivolous claim”, talk to a civil rights attorney immediately, as you may have malicious prosecution litigation.

The second requirement is that the defendant played an active roll in the initial case. This fundamentally means that your malicious prosecution case must sue the right person. So with the two examples stated earlier, you would sue the local police and child protection services respectively.

The third requirement is that the defendant didn't have a feasible cause or reasonable grounds to support the fundamental case. This means that the defendant acted without having any evidence or reason to act. So in the first example, the police would have to arrest you without any actual supporting proof to do so.

The final requirement is that the defendant initiated or continued the original case with an improper purpose. This means that even once the defendant recognized that the case was without merit, they continued pursuing it anyhow.

Damages admitted in case of a malicious prosecution

The person who has undergone and has been maliciously prosecuted can successfully bring an action against his prosecutor but only when he suffers some damage from the lawyer. If he/she suffers no damage he cannot sue. The damage may be one of the three kinds and they are as follows-

  • Damage to his person as when a person is prosecuted with a crime by the penalty of which he may lose his life, limb or liberty.
  • Damage to a person’s fame, for example, to prosecute for a crime that involves some slur on his character.
  • Damage to his property as when he is forced to spend money on necessary charges to acquit himself of the crime which he is arrested of example fees of a prosecutor, loss of business during the trial or proceedings.

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