What is the Civil Claim for Malicious Prosecution?

–By John Merrick —

In a nutshell, it begins when a person falsely accuses another of a crime to get something in return. The person who is falsely accused must be charged and “beat” the charge (no plea agreement). When these elements are satisfied, the rest of the elements tend to fall into place.

The strongest claims typically involve a sympathetic and vulnerable plaintiff, against a powerful and aggressive defendant. Here are a few real examples: (1) a general contractor falsely reports that a subcontractor stole something that he was supposed to deliver to a job site; (2) a rent-to-own company falsely reports that a customer stole a rented item, because she did not make her payments on time; (3) a property owner falsely reports that a tenant is trespassing, instead of going through the eviction process.

Failure to deliver a product, or make a payment, is generally a breach of contract – not a crime. A tenant with a valid lease is not a “trespasser” – even though he or she may have breached the terms of the lease. Nevertheless, the aggressive defendant reports the “crime” to get what he wants: to get his product back, his tenant out, his money, and/or to silence a dissatisfied customer.

The aggressive defendant knows that the accused will be arrested and prosecuted; and the weight, stress and anxiety of the criminal action will cause the accused to “fall in line”.

This happens often and it can make for a strong civil claim. The person who is falsely accused can recover for the emotional trauma caused by the arrest, incarceration, anxiety from court appearances and potential incarceration, attorney costs, etc.

Here is a short legal analysis: Liability for malicious prosecution requires evidence of the following: (1) that the prosecution was instituted by, or with the cooperation of, the defendant; (2) that the prosecution was terminated in a manner not unfavorable to the plaintiff; (3) that it was without probable cause; and (4) that it was malicious. Lee v. Southland Corp., 219 Va. 23, 26 (1978). The elements in dispute are typically probable cause and malice.

“Probable cause in malicious prosecution actions is defined as knowledge of such a state of facts and circumstances as excite the belief in a reasonable mind, acting on such facts and circumstances, that the plaintiff is guilty of the crime of which he is suspected.” Lee v. Southland Corp., 219 Va. 23, 26 (1978) (citations omitted). “Whether probable cause existed is determined as of the time when the action complained of was taken.” Lewis v. Kei, 281 Va. 715, 723 (2011) (citations omitted). In a malicious prosecution action, legal malice may be inferred from the lack of probable cause. Oxenham v. Johnson, 241 Va. 281 (1991).

“The opinion or belief of the prosecutor is not the test of probable cause. The test is whether the facts and circumstances known, or made known, to the prosecutor are sufficient to justify a prudent and reasonable man in the belief that an accused is guilty of the crime charged.” Giant of Va., Inc. v. Pigg, 207 Va. 679, 684 (1967). The findings or probable cause by the magistrate and grand jury, even if admissible as evidence, are factual arguments for the jury; they are not dispositive of the issue. Westreich v. McFarland, 429 F.2d 947 (4th Cir. 1970) (applying Virginia law and finding that an indictment does not furnish prima facia evidence of probable cause); see also Niese v. Klos, 216 Va. 701, 704 (1976) citing Clinchfield Coal Corp. v. Redd, 96 S.E. 836 (1918).

In addition to compensatory damages for emotional harm, etc., punitive damages are often warranted. In Lee v. Southland Corp., the Supreme Court of Virginia held that the trial court erred in striking a claim for punitive damages in a malicious prosecution suit. Lee v. Southland Corp., 219 Va. 23 (1978). The Court held: “[i]n a malicious prosecution action, it is proper to award punitive damages only when actual malice, or malice in fact, has been established by the evidence…Actual malice, or malice in fact, may be established by showing that the prosecutor’s action was prompted by ill will, malevolence, grudge, spite, wicked intention, or a conscious disregard of the rights of another.” Id.

Although these can be strong cases, the cause of action is often overlooked for a variety of reasons. They also require a lot of work. Lawyers can expect: (1) that the insurance carrier will undervalue the settlement value pre-suit, (2) that a lawsuit will need to be filed, (3) that the defendant will file a demurrer and (4) that full discovery will be conducted, including plaintiff’s deposition, before any meaningful settlement negotiations occur. There are other nuances to the claim and important strategic considerations. If you have a potential claim, please email me and I will gladly share my research and briefs.

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