This article is part of Vail Law’s open-source litigation and legal risk management checklist. Connect with me on LinkedIn.
Malicious prosecution applies only to criminal cases—not civil claims. The elements are:
(1) A criminal case was brought against the plaintiff;
(2) The criminal case was brought as a result of oral or written statements made by the defendant;
(3) The criminal case ended in favor of the plaintiff;
(4) The defendant’s statements against the plaintiff were made without probable cause;
(5) The defendant’s statements against the plaintiff were motivated by malice toward the plaintiff; and
(6) As a result of the criminal case, the plaintiff had damages.
CJI-Civ. 17:1.
Where a civil case was improperly pursued against a party, the proper remedy is either F.R.C.P. 11, other basis for sanction against the plaintiff in that case, or potentially an abuse of process claim (though that claim, too, is very limited). Wrongful criminal prosecution may also give rise to a claim under 18 U.S.C. Section 1983, though these claims are heavily weighted to favor police and government actors, and can be challenging to win absent truly egregious facts.
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