Malicious prosecution is a kind of intentional tort according
to common law. Legally, this kind of prosecution means that the
person or the authority are intentionally pursuing or instituting
a legal action which is not brought with a probable cause and
the action would be in favor of the victim in the prosecution.
Malicious prosecution refers to both criminal and civil cases.
But in some areas of jurisdictions, it may only refer to the wrongful
initiation of criminal cases. For the civil ones, it would be
denoted by "malicious use of process".
In many parts of the world which accept Common law, the attorneys
responsible for criminal prosecution as well as the judges are
protected from bearing the liability of malicious prosecution.
This is to ensure that they will not worry about their own condition
when they are trying to safeguard the law.
However, in some countries like Canada, things have changed.
The new laws in other countries have excluded the attorneys or
police from the exemption list. Malicious prosecution laws, however,
have been on the books for many years now in the U. S.
The malicious prosecution law ensures that the police (aside
from police misconduct) and the prosecutors will not try to send
the case to the court without having enough evidence for the charge.
Police vendettas or over zealous prosecutors may disrupt due process
of law in which every citizen is afforded.
Those who believe that they have been victimized by malicious
prosecution can themselves go to court to seek damages. Civil
damages for losing a job, or loss of work because of jail time,
attorney's fees from the original case, taking time off from work
to attend the original case plus punitive damages may be sought.
When one sues for malicious prosecution they become the plaintiffs
in the civil case and the one's they are suing become the defendants.
In order to prove malicious prosecution has occurred, for steps
need to be proven:
||1. The plaintiff won
the original case
2. The defendant had an active part of the original case
3. There were no reasonable grounds or probably cause for
the original case
4. The defendant initiated (police) or continued (prosecutor)
the original case with improper purpose
The laws regarding malicious prosecution are meant as a safeguard
within the legal system so that everyone gets a fair trial including
full police investigation, discovery, evidence and behavior from
prosecutors that is within the bounds of the law.
When a person is "railroaded" through the justice system,
then one or more members from law enforcement and the prosecutors
may be sued for malicious prosecution.