Malicious Prosecution

A claim from a malicious prosecution case is called a tort. This is typically a dignitary tort because the original case being pursued could bring injury to human dignity, cause emotional distress, or abuse to the plaintiff. For example, a tort action filed in civil court would be for the purpose of the plaintiff receiving compensation for the harm caused by the original lawsuit. 

Civil or criminal malicious prosecution cases can occur, the difference between them is the evidence used to support these claims:

• Most cases filed under malicious prosecution can be pursued without tangible evidence, for example mental health damages and suffering would fall under general damages and would not require physical evidence
• However, civil cases would require quantifiable proof  that damages have occurred

Any case brought forward with a questionable amount of evidence may be subject to malicious prosecution including an unreasonable search warrant. 

The court will look for these elements in a malicious prosecution lawsuit:

1. A continuing of civil or criminal legal proceedings against a plaintiff
2. By the defendant (either a prosecutor or the plaintiff that brought about the original lawsuit)
3. A termination of the ruling from the original lawsuit (the original lawsuit could be dismissed)
4. Absence of probable cause for the original lawsuit
5. Malicious intention for bringing forth the original lawsuit
6. Injury to the defendant in the original lawsuit

If these elements are present then the injured could receive compensation in the form of: 

• Compensatory Damages- includes actual damages such as pain and suffering and special damages such as quantifiable monetary loss
• Actual Damages- focuses on emotional injury and turmoil after being accused or possible suffering unnecessary jail time