Criminal proceedings are not always brought against a guilty defendant. In the interest of protecting society by bringing criminals to justice, an innocent person is sometimes prosecuted. Under certain circumstances, an accused may later bring an action for wrongful criminal prosecution, or malicious prosecution.

Who may be liable

An absolute privilege protects a public prosecutor from civil liability arising from the performance of his public duty.

Thus, only a private individual who initiates criminal proceedings may be liable for malicious prosecution. That individual is usually the complaining witness who files the charge against the accused.

If the private individual procures a third person to institute criminal proceedings against the accused, he may be liable as if he had himself initiated the proceedings. However, if a private individual merely supplies information to a prosecutor who then, in his own discretion, decides to institute criminal proceedings against the accused, the private individual may not be liable in a resulting action by the accused for malicious prosecution.

A private individual who takes an active part in continuing criminal proceedings initiated by him or by another is subject to the same liability for malicious prosecution as if he had then initiated the proceedings.

Conduct giving rise to liability

An accused must show that criminal proceedings were initiated against him without probable cause and for a purpose other than the enforcement of the criminal law and that the proceedings terminated in his favor. The actual making of a charge against the accused is not actionable unless a prosecution results from the charge.

Criminal proceedings include any proceeding in which the government seeks to prosecute and penalize an accused for a criminal offense. Criminal proceedings are instituted when process, usually a warrant for arrest, is issued to bring the accused before an official or a court to determine his guilt. If no warrant is issued, the criminal proceedings are instituted when an indictment is returned or an information is filed against the accused or he is arrested.

A purpose other than the enforcement of the criminal law may include seeking revenge, showing feelings of ill will, or obtaining an advantage over the accused. A private individual's lack of probable cause for initiating criminal proceedings and a lack of belief that the accused is guilty constitute evidence of an improper purpose.

A private individual has probable cause to initiate criminal proceedings if he correctly or reasonably believes that the accused's acts or failure to act constituted an offense and that he is sufficiently informed as to the law and the facts to justify him in initiating the prosecution. Evidence that the private individual had probable cause to initiate criminal proceedings includes the fact that a grand jury returned an indictment against the accused and the reliance on advice by counsel. Evidence that the private individual lacked probable cause includes an abandonment of the proceedings at his own instance. It is not evidence of a lack of probable cause if the accused is acquitted or if the private individual initiated the proceedings with an improper purpose.

Criminal proceedings are terminated in favor of the accused by a discharge at a preliminary hearing, the refusal of a grand jury to indict, the prosecutor's abandonment of the proceedings, the quashing of an indictment or information, an acquittal, or a final order in favor of the accused. The accused's acceptance of a compromise from the prosecutor does not constitute a termination of the proceedings in his favor. In addition, if the prosecutor abandons the proceedings because it is impossible to prosecute (e.g., the accused has fled the jurisdiction), there is no termination in favor of the accused.

Damages

An accused may be entitled to recover damages for the harm to his reputation, emotional distress, the harm caused by his arrest or imprisonment, the expenses for his defense, and certain monetary losses caused by the proceedings.

(215) 557-8686 :: Contact Us