Malicious Prosecution: What It Is And Its Elements (2025)

Malicious Prosecution Examples

Malicious prosecution is a slightly misleading term because it sounds like it only covers a false prosecution for a crime you did not commit. However, this term uses an older definition of “prosecution” that refers to the instituting or continuing of legal proceedings.

Thus, malicious prosecution might happen anytime legal proceedings are initiated or continued due to malice. In the legal system, malice refers to a state of mind in which the person intends an unlawful or wrongful act.

Putting these terms together, malicious prosecution occurs when someone unlawfully or wrongfully uses the legal system. Some examples of ways a person might engage in malicious prosecution include:

• Falsely accusing you of a crime
• Wrongfully arresting or prosecuting you for a crime
• Filing a lawsuit against you to drain your financial resources on legal fees
• Falsely reporting your business for safety, health or financial violations
• Subpoenaing your testimony to force you to admit to embarrassing details

Both private individuals and government officials can engage in malicious prosecution. Similarly, malicious prosecution can involve civil, criminal and administrative legal processes.

Malicious prosecution is an intentional tort, like battery or false imprisonment. Torts are private wrongs committed by one party that harms another. The remedy for a tort is monetary compensation and, if necessary, an injunction ordering the party to cease its actions.

For example, a class action lawyer might bring a lawsuit for malicious prosecution against a police department on behalf of a minority group. The lawsuit could seek compensation for illegal traffic stops and a court order requiring the police to stop targeting the group's members.

Differences Between Malicious Prosecution and Related Claims

An assertion of malicious prosecution is a claim meant to preserve the integrity of the legal system. It may be used in combination with other claims, such as battery and false imprisonment.

For example, a victim of police brutality might assert malicious prosecution for being stopped and arrested without probable cause, false imprisonment for being handcuffed, and battery for being beaten by officers.

Malicious prosecution can also take different forms. For example, abuse of process is a claim asserted when someone misuses legal procedures. This claim can be asserted even if the underlying lawsuit or prosecution is sound.

Thus, abuse of process can occur when someone files a legitimate lawsuit, but the party and their litigation lawyer misuse discovery requests to try to learn the other party’s customer information so they can solicit them for business.

Additionally, malicious prosecution and related claims can span different types of proceedings, including criminal prosecutions, civil lawsuits and administrative proceedings, like building permit applications. False arrest might apply to criminal but not civil proceedings.

The Elements of a Malicious Prosecution Claim

Every state has different elements for a malicious prosecution claim. However, these claims typically share a few features. First, the victim must have been harmed. If no harm occurred, there is no legal claim. However, reputational and emotional harm are legitimate forms of harm for a malicious prosecution claim.

Second, the other party must have misused the legal system. Harm can occur when the legal system is properly used, but this harm would not provide the basis for a malicious prosecution claim. Instead, the legal system must have been misused in some way.

Third, the misuse of the legal system must have caused the harm suffered. This means the harm must be a logical consequence of the misdeed.

For example, suppose that you claim your construction company lost contracts because a disgruntled employee filed a construction accident lawsuit falsely alleging safety and building code violations. You must prove the customers canceled because of the lawsuit and not other reasons.

How to Prove Malicious Prosecution

Malicious prosecution includes several types of claims, including:

• Misuse of criminal proceedings
• Misuse of civil proceedings
• Misuse of administrative proceedings
• Abuse of process

Someone who engages in malicious prosecution might also commit related torts. These could include defamation of character, intentional infliction of emotional distress and negligent infliction of emotional distress.

For example, you might file a combined malicious prosecution and defamation lawsuit if your ex-spouse falsely reported to the police that you stole millions of dollars from a charity. Malicious prosecution elements vary slightly based on the legal proceeding improperly deployed against you. They may also differ based on the state you live in.

For example, California jury instructions 1500, 1501 and 1502 give six elements for malicious prosecution based on criminal, civil and administrative proceedings, respectively. However, the elements your lawyer must prove are the same, with only these minor variations based on the type of proceeding:

• The defendant was actively involved in bringing or continuing the proceeding.
• The proceeding ended in your favor.
• No reasonable person would have believed there were reasonable grounds for it.
• The defendant had a primary purpose other than succeeding in the case.
• You were harmed.
• The defendant bringing the proceeding substantially caused the harm.

If you were falsely arrested and prosecuted for a criminal offense, you may bring a case in federal court against police officers and prosecutors for violating your Constitutional rights. These are called Section 1983 claims, and they have three elements:

• The proceeding was instituted without probable cause.
• They knew there was no probable cause and had a purpose other than justice.
• The case terminated with an acquittal or discharge.

The remedy for this violation is monetary damages paid by the local or state government agency responsible for the improper arrest or prosecution.

Can I Sue for Malicious Prosecution?

Malicious prosecution is a tort. You remedy malicious prosecution and seek compensation for its effects by filing a lawsuit. In other words, malicious prosecution is not a crime, and the other party only has tort liability, not criminal liability, for their actions.

Remedies and Damages for Malicious Prosecution

What is the punishment for malicious prosecution? There is no punishment. However, a person can be prosecuted for any crimes committed while engaging in wrongful prosecution, such as perjury, forgery or a false police report filing.

Instead, the other party faces tort liability for any reasonable and necessary expense or loss caused by the wrongful act. For example, suppose that a former employee falsely accused you of sexual harassment in a lawsuit.

If your lawyer finds evidence that the worker filed the lawsuit to extort you into paying a settlement, you may file a malicious prosecution claim seeking compensation for:

• Legal fees
• Lost income due to diminished business
• Costs for therapy for emotional distress
• Damage to your reputation

An experienced lawyer can identify any other losses to include in lawsuit settlements.

Learn More About Malicious Prosecution From ConsumerShield

The physical, mental, reputational and financial harm you suffer due to legal system misuse can ruin your life. However, you can take action to recover your losses. ConsumerShield assists people in understanding their legal situations and finds lawyers who can help. Contact us for a free case review and lawyer referral.

Do You Need an Attorney for a Malicious Prosecution Claim?

You can file a lawsuit for malicious prosecution without a lawyer. However, you should strongly consider using a lawyer because you will likely face powerful parties, such as a police department, prosecutor’s office or law firm. Having a lawyer on your side is wise.