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Malicious Prosecution

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.

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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.




 

 

 

 

 

 

 

 

 

 

 


 

 


 

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