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Topic: Malicious prosecution

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Abuse of process

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Due process

Fifth Amendment to the United States Constitution

	Police Liability for False Arrest, False Imprisonment and Malicious Prosecution
		Significantly, in actions in actions for malicious prosecution actions it is stated that there exists no exact measure of damages for such claims except the enlightened conscience of impartial jurors and the worldly circumstances of the parties are admissible in evidence for consideration by the jury in awarding damages.
		To establish a federal malicious prosecution claim under section 1983, the plaintiff must prove a violation of his Fourth Amendment right to be free from unreasonable seizures in addition to the elements of the common law tort of malicious prosecution.
		When malicious prosecution is brought as a federal constitutional tort, the outcome of the case does not hinge on state law, but federal law, and does not differ depending on the tort law of a particular state.
	www.grsmb.com /CM/Resources/Police-Liability.asp (3178 words)

	Legal Definitions of Malicious Prosecution, Malicious Prosecution, Or Malicious Arrest
		MALICIOUS PROSECUTION - An intentional tort arising from the institution or instigation of unjustifiable and unreasonable civil or criminal litigation.
		The malicious prosecution or action must be ended, and the plaintiff must show it was groundless, either by his acquittal or by obtaining a final judgment in his favor in a civil action.
		The remedy for a malicious prosecution is an action on the case to recover damages for the injury sustained.
	www.lectlaw.com /def2/m062.htm (1556 words)

	Malicious Prosecution - Malicious prosecution legal requirements and how to legally proceed with a malicious ...
		Plaintiff in a malicious prosecution action must prove that the prior judicial proceeding terminated in his favor, and it is essential that the defendant not be given the opportunity to re-try that case.
		In a malicious prosecution case against an attorney, the test for probable cause is whether the case was tenable, meaning "objectively reasonable." In other words, if no reasonable attorney would have believed that there was a legitimate basis for prosecuting the lawsuit, there was no probable cause.
		Since BAJI 7.30 gives the elements of malicious prosecution which must be proved in order for the jury to return a verdict, it may be desirable to combine it with BAJI 2.60 which is the general instruction on burden of proof and preponderance of evidence.
	www.blumberglaw.com /article-malicious-prosecution.htm (1652 words)

	3.12 MALICIOUS PROSECUTION BASED UPON A PRIOR CRIMINAL PROCEEDING (pre-1984)
		Although the rule is generally stated that the action must have terminated favorably to the plaintiff in the malicious prosecution action, all that is necessary is that there be a termination not adverse to the plaintiff coupled with additional proof of malice and lack of probable cause.
		In such a malicious prosecution action, the jury should be specifically instructed that the "malice" necessary to support a claim for malicious prosecution is very different than the "malice" necessary to justify an award of punitive damages.
		Malicious prosecution is a tort action and if the right of action is established, the damages recoverable would be those which proximately flowed from the plaintiff's wrongdoing.
	www.judiciary.state.nj.us /civil/charges/312.htm (2364 words)

	Avoiding Malicious Prosecution Claims
		The tort of malicious prosecution consists of initiating or procuring criminal proceedings, from an improper motive and without probable cause, against another who is not guilty of the offense charged, and who ultimately gains a favorable termination of the proceedings.
		The malicious prosecution plaintiff must plead and prove the lack of probable cause, that is, the defendant's lack of a reasonable legal or factual basis for pursuing the prior proceeding against the plaintiff.
		One of the essential elements for a malicious prosecution case is "malice," which almost necessarily implies an intentional wrongful act by the attorney ("the existence of a primary purpose other than that of securing an adjudication of the claim").
	www.kvi-calbar.com /malpros.html (2384 words)

	Content Page
		In all cases alleging malicious prosecution arising out of proceedings which sought damages for injuries or death by reason of medical, hospital or other healing arts malpractice, the plaintiff need not plead or prove special injury to sustain his or her cause of action.
		A malicious prosecution action is brought to recover damages suffered by an individual against whom a suit has been filed maliciously and without probable cause.
		The legislature could have reasonably believed that liberalizing the availability of a malicious prosecution action for healthcare providers is an effective means of curtailing meritless medical malpractice litigation in the fact that not only does it discourage the filing of frivolous medical malpractice suits but it also punishes plaintiffs who bring baseless medical malpractice claims.
	www.qjhp.com /CM/Articles/Articles223.asp (1426 words)

	Malicious Prosecution Attorney (Site not responding. Last check: 2007-10-09)
		As an experienced malicious prosecution attorney and expert witness, I know that this is an area of frequent misunderstandings and misinformation.
		For a malicious prosecution case to make it to court, it must be established that there was no probable cause for the underlying action.
		The expert can also help the court to understand that malicious prosecution is not a charge to be taken lightly, and every facet of the case must be considered before a decision is made.
	www.legalmalexpert.com /malicious-prosecution-attorney.html (318 words)

	Malicious Prosecution Lawsuits (Site not responding. Last check: 2007-10-09)
		Malicious prosecution exists when a prior proceeding was maliciously commenced against the plaintiff by the defendant-officer, for which there was no probable cause, and the prior proceeding was terminated in the plaintiff's favor.
		Since the malice required for malicious prosecution may be either express or implied, it is not necessary to show that the officer brought or continued the criminal prosecution through vindictiveness or spite.
		However, malicious prosecution claims generally require that the original proceedings have terminated in favor of the accused, so the basis for a lawsuit will occur only after the prosecution ends, and the statute of limitations runs only from that time.
	www.enforcergraphics.f2s.com /feb96.htm (634 words)

	Avoiding the Pitfalls of Malicious Prosecution Lawsuits (Site not responding. Last check: 2007-10-09)
		This is particularly true where malicious prosecution liability may result where a single theory is pursued without probable cause, even if the remainder of the lawsuit is meritorious and successful.
		The courts have expressly recognized this very difficult dilemma, where attorneys may be subject to claims of malicious prosecution by opponents because they vigorously represent their client, yet are also subject to claims of legal malpractice if they fail to provide the vigorous representation to which the client is entitled.
		A malicious prosecution plaintiff must also establish that he or she received a "favorable termination on the merits" as to the underlying actions.
	www.legal-rights.org /DTV/maliciousprosecution.html (1843 words)

	Scientology --- Malicious prosecution no longer risk-free in Illinois, thanks to CAN
		The malicious prosecution plaintiff must show: 1) that the underlying suit was commenced maliciously and without probable cause; 2) that the action complained of has been terminated in his or her favor; and 3) proof of some "special" injury or damage beyond the usual expense, time or annoyance in defending a lawsuit.
		Moreover, the malicious prosecution plaintiff pleaded that the underlying suits were filed without probable cause and were terminated in plaintiff's favor either by summary judgments or voluntary and involuntary dismissals.
		The malicious prosecution plaintiff in Cult Awareness Network argued that the appellate court's rule announced in Siegel regarding favorable termination was overly restrictive and basically eradicated the malicious prosecution cause of action in Illinois.
	holysmoke.org /cos/slap-can.htm (1964 words)

	SAMPLE: Memo re unfair debt collection practices
		To establish a cause of action for malicious prosecution, a plaintiff must plead and prove that the prior action: (1) was commenced by or at the defendant's direction; (2) was pursued to a legal termination in plaintiff's favor; (3) was brought without probable cause; and (4) was initiated with malice.
		The plaintiff in a malicious prosecution action must plead and prove that the prior judicial proceeding of which she complains terminated in her favor.
		As it applies to the malicious prosecution of civil actions, "probable cause" is defined as "a suspicion founded on circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true." Davis v.
	www.quojure.com /samples/archives/debtcollect.htm (2446 words)

	STATE OF MICHIGAN
		When the prosecution at issue involves a civil proceeding instead of a criminal proceeding, the elements are the same, except the plaintiff also must show that he suffered a special injury.
		Specifically, the Matthews Court determined that the prosecution resulted from an investigation by a state detective and a warrant that was authorized by the county prosecutor, in which the detective was the complainant.
		With respect to plaintiff's conspiracy to commit malicious prosecution claim, the court's grant of defendants' motions for summary disposition was correct because this claim also fails to state a claim upon which relief may be granted.
	www.michbar.org /opinions/appeals/2000/031700/6562.html (1293 words)

	[No title]
		263.) “Originally the common law tort of malicious prosecution was limited to criminal cases, but the tort was extended to afford a remedy for the malicious prosecution of a civil action.” (Merlet v.
		“The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice.
		Katleman (1994) 8 Cal.4th 666, 695 [34 Cal.Rptr.2d 386, 881 P.2d 1083].) “[A] malicious prosecution plaintiff is not precluded from establishing favorable termination where severable claims are adjudicated in his or her favor.” (Sierra Club Foundation v.
	www.courtinfo.ca.gov /reference/documents/SER1500.DOC (7606 words)

	Malicious Prosecution Suits Subject to Anti-SLAPP Motions
		Malicious prosecution suits implicate First Amendment concerns and are subject to motions to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute, the state Supreme Court ruled yesterday.
		She also rejected Jarrow’s contention that application of the anti-SLAPP procedures was unnecessary because malicious prosecution claims are in effect “pre-screened,” since it is an element of the tort that the underlying claim have lacked probable cause.
		A malicious prosecution defendant who in fact had probable cause in the underlying action may, depending on the circumstances of the particular case, be able to obtain dismissal on that ground only after protracted and costly litigation.”
	www.metnews.com /articles/jarr081903.htm (651 words)

	How Real Is 'The Threat'? What Mediators Should Know About Malicous Prosecution
		Malicious Prosecution targets the opposing parties and/or their legal advisors who did not prevail in a prior legal action.
		Malicious prosecution cases are being filed in ever-increasing record numbers.
		The essential elements of a Malicious Prosecution claim are: (1) that the prior action was initiated by or at the defendant's direction and was terminated in plaintiff's favor; (2) was brought without probable cause; and (3) was commenced with malice.
	www.mediate.com /articles/benzviD.cfm?nl=35 (715 words)

	Defending the Intentional Torts of False Arrest/False Imprisonment and Malicious Prosecution
		Malicious Prosecution is a separate cause of action, and initial criteria necessary to file such and action has fairly recently been modified by the Illinois courts.
		Recent Illinois case law has broadened the use of malicious prosecution actions by broadening the definition of "favorable termination." What constitutes a "favorable termination" is evolving in the Illinois courts.
		Illinois was formerly in the minority, holding that a favorable termination required a factual determination of the underlying case, traditionally by trial or by motion for summary judgment.
	library.findlaw.com /1999/Aug/1/128100.html (2438 words)

	Gerard v. Ross: Court of Appeal Upholds Malicious Prosecution Judgment Against Judge Edward M. Ross
		The record indicates that the idea that the law firm could be found liable for malicious prosecution as a result of the acts and conduct of its principal, shareholder, director and employee, Ross, was unchallenged throughout the trial.
		The elements of a cause of action for malicious prosecution are that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in the plaintiff's favor; (2) was brought without probable cause; and (3) was initiated with malice.
		To determine the validity of such an allegation, the trier of fact is entitled to the benefit of expert evidence as to the proof of the prevailing standard of skill and learning in the same or similar locality and the propriety of particular conduct by the practitioner.
	www.lawzone.com /gerard.htm (6032 words)

	The Gene Allard Lawsuit against Scientology for malicious prosecution
		This was relevant to the instant case since one of the elements of a cause of action for malicious prosecution is that the criminal prosecution against the plaintiff shall have been favorably terminated.
		Initially, the interests protected by a suit for malicious prosecution include misuse of the judicial system itself; a party should not be able to claim First Amendment protection maliciously to prosecute another person.
		Punitive damages may therefore be more easily justified in cases of malicious prosecution than in cases of defamation.
	www.lermanet.com /scientologylegal/gene-allard-scientology.htm (3937 words)

	3.13 MALICIOUS PROSECUTION ACTION BASED UPON A PRIOR CIVIL PROCEEDING (pre-1984)
		An action at law for malicious prosecution based upon a prior civil judicial proceeding consists of several elements.
		In this connection the word "proximate" means that the malicious prosecution must have been the efficient, producing cause of such injury or loss.
		However, in one important respect, the general charges on punitive damages should be modified in a malicious prosecution action based upon a prior civil action.
	www.judiciary.state.nj.us /civil/charges/313.htm (1725 words)

	Sheldon Appel Co. v. Albert & Oliker
		The trial court severed the malicious prosecution cross-complaint from the breach of contract complaint, and the contract action went to trial first.
		The common law tort of malicious prosecution originated as a remedy for an individual who had been subjected to a maliciously instituted criminal charge, but in California, as in most common law jurisdictions, the tort was long ago extended to afford a remedy for the malicious prosecution of a civil action.
		A number of legal commentators have examined the merits of permitting more liberal use of malicious prosecution actions against litigants and their attorneys as a means of combating groundless litigation.
	www.casp.net /oliker-1.html (1699 words)

	DWT LLP \| Eastern Oregon Cattle Rancher Wins Malicious Prosecution Case
		These criminal charges against Snow were dismissed with prejudice by the Union County District Attorney after a legal survey of the property was conducted and the 11 trees were found to be on Snow's property.
		Atkinson built a fence where he alleged the cut line was established, and the jury determined that fence was not built in good faith or by mistake.
		Snow then filed a lawsuit against Atkins for malicious prosecution, trespass and ejectment that resulted in the verdict in his favor in this case on June 23, 2006, after a five-day jury trial.
	www.dwt.com /press/06-06_MaliciousProsecution.htm (237 words)

	Appeals Court Upholds Malicious Prosecution Suit against Hulda Clark and Attorney Carlos Negrete
		In 2001, Clark responded with a malicious cross-complaint in which she accused me, my wife, and many other defendants with "racketeering" and a long list of other crimes and alleged civil wrongs that we did not commit [3].
		The plaintiff must establish that the prior underlying action (1) was commenced by or at the direction of the defendant and it was pursued to a legal termination in the plaintiffs favor; (2) was brought without probable cause; and (3) was initiated with malice.
		As to point two, in his malicious prosecution complaint Barrett alleged that the defendants instituted their action against him without probable cause to believe that their allegations were true.
	www.quackwatch.org /11Ind/negreteappeal.html (1056 words)

	Against Injustice : A Malicious Prosecution
		We requested the unused and all of the evidence from the prosecution, since the solicitor wasn’t doing his job, and we wrote to the Courts showing that this case was just malicious and should not go ahead.
		You can clearly see that the Prosecution was just biding for time, longing out the case, and they were doing it so they could fabricate evidence and run the case in the way they wanted.
		Prosecution would have had all of the evidence which we requested when deciding to whether to prosecute the cases, and as my daughter put forward to the Courts, on the 3rd October 2002, it doesn’t take 3 weeks or that high amount of time to photocopy things and send them to us.
	mysite.wanadoo-members.co.uk /against_injustice/chapter9.html (903 words)

	CBC News Indepth: Klassen malicious prosecution case
		In what was called the "scandal of the century" at the time, three Saskatoon foster children accused their foster parents and members of their family of bizarre abuse rituals, including forcing them to participate in orgies, drink blood, eat eyeballs and watch babies being skinned alive and burned.
		The Klassens file a $10-million malicious prosecution lawsuit against the lead investigator in the case, Saskatoon police officer Brian Dueck; a therapist, Carol Bunko-Ruys; and two Crown prosecutors, Matthew Miazga and Sonja Hansen.
		Three of the four defendants in the $10-million lawsuit are found liable for malicious prosecution.
	www.cbc.ca /news/background/klassen (682 words)

	liibulletin: Engel v. CBS, INC.
		Whether, in an action for malicious prosecution of a civil lawsuit, New York limits the requirement of special injury to proof that a provisional remedy was imposed in a prior civil action.
		A claim of malicious prosecution in New York still requires a showing of special injury.
		Although Engel was later dismissed as a defendant, he claims that the CBS suit was instituted to undermine his representation and led to certain damages.
	www.law.cornell.edu /nyctap/comments/i99_0051.htm (347 words)

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