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Malicious Prosecution - Elements Of Proof

original plaintiff defendant hodges

To win a suit for malicious prosecution, the plaintiff must prove four elements: (1) that the original case was terminated in favor of the plaintiff, (2) that the defendant played an active role in the original case, (3) that the defendant did not have probable cause or reasonable grounds to support the original case, and (4) that the defendant initiated or continued the initial case with an improper purpose. Each of these elements presents a challenge to the plaintiff.

The Original Case Was Terminated in Favor of the Plaintiff The original case must end before the defendant or respondent in that case may file a malicious prosecution suit. This requirement is relatively easy to prove. The original case qualifies as a prosecution if the defendant or respondent had to appear in court. The original case need not have gone to trial: it is enough that the defendant or respondent was forced to answer to a complaint in court. If the original case is being appealed, it is not considered terminated, and the defendant or respondent must wait to file a malicious prosecution suit.

To proceed with a malicious prosecution claim, the plaintiff must show that the original case was concluded in her or his favor. Generally, if the original case was a criminal prosecution, it must have been dismissed by the court, rejected by the GRAND JURY, abandoned by the prosecutor, or decided in favor of the accused at trial or on appeal. If the original case was a civil suit, the respondent must have won at trial or the trial court must have disposed of the case in favor of the respondent (now the plaintiff).

If recovery by the plaintiff in a civil action was later reversed on appeal, this does not mean that the action was terminated in favor of the respondent. However, if the plaintiff in the original case won by submitting fabricated evidence or by other fraudulent activity, a reversal on such grounds may be deemed a termination in favor of the respondent. A settlement between the plaintiff and the respondent in a civil suit is not a termination in favor of the respondent. Likewise, courts do not consider a plea bargain in a criminal case to be a termination in favor of the defendant.

The Defendant Played an Active Role in the Original Case In a malicious prosecution suit, the plaintiff must prove that the defendant played an active role in procuring or continuing the original case. The plaintiff must prove that the defendant did more than simply participate in the original case. False testimony alone, for example, does not constitute malicious prosecution. Moreover, witnesses are immune from suit for DEFAMATION, even if they lie on the witness stand. Such is the case because the concept of a fair and free trial requires that witnesses testify without fear of having to defend a defamation suit owing to their testimony.

An action for malicious prosecution focuses on the abuse of legal process, not on defamatory, untruthful statements. If a person helps another person launch a baseless case or takes action to direct or aid such a case, the first person may be held liable for malicious prosecution. The defendant must have been responsible in some way for the institution or continuation of the baseless case. This position of responsibility does not always include criminal prosecutors and civil plaintiffs. For example, if a prosecutor bringing criminal charges is tricked into prosecuting the case by an untruthful third party, the deceiving party is the one who may be found liable for malicious prosecution, not the prosecutor.

The Defendant Did Not Have Probable Cause to Support the Original Case The plaintiff must prove that the person who began or continued the original case did not have probable cause to do so. Generally, this means proving that the person did not have a reasonable belief in the plaintiff's guilt or liability. In examining this element, a court will look at several factors, including the reliability of all sources, the availability of information, the effort required to obtain information, opportunities given to the accused to offer an explanation, the reputation of the accused, and the necessity in the original case for speedy judicial action.

A failure to fully investigate the facts surrounding a case may be sufficient to prove a lack of probable cause. The termination of the original case in favor of the original defendant (now the plaintiff) may help to prove a lack of probable cause, but it may not be decisive on the issue. The plaintiff should present enough facts to allow a reasonable person to infer that the defendant acted without a reasonable belief in the plaintiff's guilt or liability in beginning or continuing the original case.

In a criminal case, an acquittal does not constitute a lack of probable cause. A criminal defendant stands a better chance of proving lack of probable cause if the original case was dismissed by prosecutors, a grand jury, or the court before the case went to trial. The criminal process provides several safeguards against prosecutions that lack probable cause, so a full criminal trial tends to show the presence of probable cause. Civil cases do not have the same safeguards, so a full civil trial does not tend to prove probable cause.

The Defendant Initiated or Continued the Original Case with an Improper Purpose In a malicious prosecution, the plaintiff must prove with specific facts that the defendant instituted or continued the original proceeding with an improper purpose. Sheer ill will constitutes an improper purpose, and it may be proved with facts that show that the defendant resented the plaintiff or wanted somehow to harm the plaintiff. However, the plaintiff does not have to prove that the defendant felt personal malice or hostility toward the plaintiff. Rather, the plaintiff need only show that the defendant was motivated by something other than the purpose of bringing the plaintiff to justice.

Few defendants admit to improper purposes, so improper purpose usually must be inferred from facts and circumstances. If the plaintiff cannot discover any apparent purpose, improper purpose can be inferred from the lack of probable cause.

Hodges v. Gibson Products Co. Hodges v. Gibson Products Co., 811 P.2d 151 (Utah 1991), contained all the elements of a malicious prosecution. According to Chad Crosgrove, the manager of Gibson Discount Center in West Valley, Utah, store money was noticed missing during the afternoon of September 4, 1981. Both Crosgrove and part-time bookkeeper Shauna Hodges had access to the money, and both denied taking it. On September 9 Crosgrove and Gibson officials went to the local police station, where they lodged an accusation of theft against Hodges. Crosgrove was not accused. Hodges was arrested, handcuffed, and taken to jail. After a PRELIMINARY HEARING, she was released on bail and ordered to return for trial on May 12, 1982.

After Hodges was formally charged, an internal audit at Gibson revealed that Crosgrove had embezzled approximately $9,000 in cash and goods from the store. The thefts had occurred over a time period that included September 4, 1981. Gibson still did not charge Crosgrove with theft. Instead, it allowed him to resign with a promise to repay the money.

The night before Hodges's trial was to begin, and almost two months after Crosgrove's EMBEZZLEMENT was discovered, management at Gibson notified Hodges's prosecutor of Crosgrove's activities. The prosecutor immediately dropped the charges against Hodges. Hodges then filed a suit for malicious prosecution against Gibson and against Crosgrove.

At trial Hodges was able to prove all the elements of malicious prosecution to the jury's satisfaction: (1) She had been subjected to prosecution for theft, and the matter had been terminated in her favor. (2) She had sued the correct parties, because Gibson and Crosgrove were responsible for instituting the original proceedings against her. (3) She had ample evidence that the original prosecution was instituted without probable cause because Gibson failed to investigate Crosgrove until after she had been arrested and because the prosecutor dismissed the charges against her. (4) Finally, there were enough facts for the jury to infer that both Gibson and Crosgrove had acted with improper motive: Gibson had acted with an apparent bias against Hodges, and Crosgrove apparently had accused Hodges for self-preservation. The jury awarded Hodges a total of $88,000 in damages: $77,000 from Gibson, and $11,000 from Crosgrove. The verdict was upheld on appeal.

Malicious Prosecution - Damages [next]

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almost 11 years ago

A Criminal Defendant in State Court can also remove his or her criminal case to Federal Court Under Title 28 U.S.C. subsections 1441 through 1446 and when the charges are droped in the Federal Court, or the case is remanded with directions to dismiss, you already have a Federal Court mandate which makes your tort claim even better when you file your Title 42 USC sec. 1983 in Federal Court.

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4 months ago

I am agrandparent of 4 children who while in state protective custody were subjected to mental torture. Their mother accused of neglect due to drug addiction lost the children based on that accusation in the final trial the attorney general filed a complaint blocking appellant action which was falsely based on assumptions and false concerns.
pornographic evidence was used against family members at trials and in meetings to disparage support to the defendant.
these same now hold positions in federal government and are hiding their crimes against families, supporting and protecting abusers and predatory pedophiles. Amazing is the failure to stop mental tortures continue to this day.
I as a professional soldier would face world court laws doing in my duty what the government officials have done to my child and grandchildren.

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about 1 year ago

I have for real enjoyed this research keep sending more in my email

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about 3 years ago

I am currently going to court for terrorist threats and harassment. A girl I know created a Facebook account in my name and harassed herself and now Im facing criminal charges. I started calling the police on this girl back as far as 12/31/2013. she was impersonating me on facebook for over a year and then she took screen shot copies of the messages to the police and I was arrested spent 3 day in jail had to pay $1500.00 to bail myself out of jail. I just passed my formal arraignment were I waived it to trail. The Prosecutor knows this person tired to file a 4th false record against me but they are still taking this case to trail. My question is do I have ground for Malicious Prosecution. The only evidence the prosecution has is the screen shot copies this person provided. They did not do an investigation nor did they authenticate the evidence from facebook. they have IP numbers no nothing. This can be justice at its finest. Im looking for help in this matter. I have a public defender I have no faith in. Tyshasmith2015@gmail.com and or call 717-508-6282 Thanks

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about 4 years ago

I have filed a 1983 civil action for Malicious Prosecution and have found this information to be helpful. I have also Hunted around for some time now to try and retain an advocate who would not mind representing me against the Sumter City Police Dept's. Investigator who arrested me on a criminal offense solely based on a proven to be false statement by the criminal who actually was found through video to be the one who committed the offense of shoplifting . Due to the video revealing the individual who gave the statement against me was the actual criminal shoplifter and that I was not at the store as previously stated by the criminal shoplifter , The shoplifting charge was dropped from me and at that same time ; the investigator instituted a totally different offense without just cause. This new offense was later terminated in my favor before going to trial. The criminal allegation started on October 27, 2010 and continued through to January 16, 2013 where it terminated in my favor without ever being Indicted/True billed . I am currently in the Discovery phase and am really needing an advocate to take on this case to help me but have not found someone as of yet to represent me on such a case as Malicious Prosecution. Will someone out there Please contact to assist me here as I am in need here for someone to represent me in this case. I know I do have a case as I have studied much and the elements exist for me to pursue this action and other attorney's have actually looked at my claim and said they thought it to be proper but just could not do it due to their caseload and timeframe. If there is an attorney out there who is interested in representing me in this Malicious Prosecution case , Please contact me @ (803)481-8422( from 8am to 5pm . leave message if you do not get me and I will return your call . Thank you and Thanks to this cite .

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over 6 years ago

I was arrested 6 times, charged with 20 charges all but one dropped, that one the evidence (well others as well) was "lost", photos. Politically motivated from suing the county several times in past 10 years over taxation issues. While in jail, they did not give me medication for 10 days causing 15 seizures and major brain loss. Have not found anyone to do a 1983, can't do it in this back yard of North Fla, just Federal. 55 civil and religious rights violations well documented. someone please help tlcmin2002 @yahoo.com

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about 7 years ago

this is an excellent website. I am hoping that if my daughter can find an attorney who will take her case and appeal it for her, she may be able to claim Malisicious Prosecution, as the accusation/charges against her have no evidence, no grounds and yet she was found guilty. this occurred when her ex=husband wanted to divorce her and leave,taking their kids. Her public defender in Beaver County PA strongly suggested she not testify on her own behalf, and she listened. The jury couldn't even remember the testimony given. They were laughing minutes to reading the guilty verdict. It was shamefull.

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over 7 years ago

I have a question on malicious prosecution. I am being investigated by the harris county da office on allegations of theft by construction trust fund violations due to nonpayment of a subcontractor. the owner (customer) circumvented our contract by soliciting our subcontractor vendor for services without aquiring a change order and paying additional fees to the company. the sub invoiced our company for full services including the services the owner ordered without our knowledge. it was discovered when the customer called to complain that the work was not done in an acceptable manner and was grossly unacceptable. upon review and discovery of the facts, the owner admitted to going around our contract therefore breeching the agreement and breeching our privity of our sub contractor pricing and such. the sub became angry and refused to redo any of the work citing he did what the customer wanted. the customer refused to pay additional fees or sign a change order. our ability to leverage the sub or recourse due to faulty work was diminished. the owner decided to continue and attempted to ignore the problem and insist we pay the sub, change the problems and let him pay for the difference to the sub at our wholesale costs. the sub indicated he was not going to do any additional work and simply wanted his money so he could leave. the customer then proceeded to another sub we use on a regular basis and ordered additonal work around our company citing we refused to finish the project even though the customer was put on notice for breech. Now he is attempting to get me arrested for not paying the original sub and for "steeling his money". the da wants to procecute me for not paying the sub even though there is an obvious civil breech.. any suggestions please email me at mason1212@comcast.net thanks,