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Malicious Prosecution or Abuse of Process

What is Malicious Prosecution?

Let's say you were charged and prosecuted for a crime you did not commit, and that there was no reasonable way you could have committed the crime. If the prosecutor is aware there is no way you could have committed the crime but decides to try and prosecute you for crime anyway, you may have a case for malicious prosecution. The prosecutor must be acting outside the limits of his position and bordering on attorney malpractice.

If you end up being found not guilty of the crime (either originally or on appeal) you can file a lawsuit against the prosecutor for malicious prosecution. Your argument would be that:

  • You were prosecuted for a crime for which you did not commit and therefore were found not guilty
  • There was no probable cause that you were guilty of committing the crime
  • The prosecutor knew that there was no probable cause you committed the crime, and yet still continued to prosecute you and tried to prove that you were guilty of committing the crime
  • In some jurisdictions, there may be an additional requirement that you suffered injuries beyond the usual distress typically brought on by criminal prosecution.

Can I Sue An Attorney Who Isn't a Criminal Prosecutor?

Yes, civil attorneys can be sued for malicious prosecution in the same manner and for the same reasons that a criminal prosecutor would be sued for malicious prosecution. The main difference is that victims of malicious prosecution in criminal law are subject to harsher penalties, prison time and in some cases, death, than the victims in civil law.

What Is The Difference Between Malicious Prosecution and Attorney Malpractice?

Malicious prosecution can be considered a type of attorney malpractice. When there is attorney malpractice, it is typically because the client's attorney made a critical mistake which injured the client that a reasonable attorney wouldn't have made. Malicious prosecution, on the other hand, occurs when the prosecutor or the attorney for the other side commits malpractice, resulting in a lawsuit which never should have been brought in the first place.

What Do You Mean by Probable Cause?

Probable cause essentially means that a reasonable person, given the evidence, would think there is a reasonable possibility that you committed the crime. In order to have a successful conviction for malicious prosecution, you must show that the prosecutor did not have any reasonable evidence indicating you committed the crime. The most common examples of malicious prosecution are:

  • Falsifying or failing to disclose evidence
  • Ignoring crucial facts that no reasonable attorney would ignore
  • Failure to question crucial witnesses

What Factors May Hinder a Claim For Malicious Prosecution against Criminal Prosecutors?

Bringing malicious prosecution claims against a criminal prosecutor can be rather tricky, as criminal prosecutors have governmental immunity in their capacity as advocates of the state. A prosecutor's immunity is limited to their role as government lawyers though; a prosecutor can't be sued for charging a person with a crime because that is the prosecutor's job. They can, however, be sued for performing their jobs recklessly and without regard for the consequences of innocent people.

What Kind of Damages Could I Potentially Get in a Lawsuit against the Prosecutor?

If you succeed in your lawsuit, you may be entitled to compensatory and punitive damages. Compensatory damages simply means you would be paid back all the money you lost while defending yourself on this charge. This can include things like attorney's fees, court costs, money lost on taking time off from work, etc.

What Can I Do When Being Sued Without Reasonable Basis?

When someone initiates a lawsuit against you without any reasonable basis, you may have a claim against your accuser for malicious prosecution. In addition, you may also have a claim for abuse of process if your accuser decides to use judicial processes to harass you after the lawsuit has been filed.

What Is Abuse of Process and What Do I Need to Prove?

Abuse of process is where someone uses a legitimate judicial process for reasons that are not intended for the process to carry out. For example: if your accuser obtains a subpoena from the court just so he/she can cause you inconvenience and not because he/she wants to get some information from you, then that will be an abuse of process.

In order to bring a claim of abuse of process, one must show the following:

  1. The use of a process
  2. An ulterior motive by the accuser
  3. A misuse of the process in question
  4. Injury and damages resulting from the abuse of process.

Some courts require that the process results in the seizure of the person or property before a claim can be made.

What Are Some Examples of Process?

Generally, “process” for the purposes of this claim must be some judicial process. Examples of process that people can abuse include:

  • Requests of summons from the court
  • Counterclaims
  • Subpoenas
  • Motions for sanctions
  • Motions for restraining orders
  • Motions for change of location
  • Appeals

How Can I Show That the Accuser Had an Ulterior Motive?

Most times an ulterior motive is determined by the facts and circumstance of the specific case. The court will look at both the intent of the accuser and his/her actions. Some courts will infer an ulterior motive if the accuser had actually misused a process, even though he/she might deny that he/she did it intentionally.

Good signs that your accuser might have an ulterior motive include:

  • Attempt to gain an advantage in a legal proceeding
  • Attempt to gain a business advantage over you and other competitors
  • Attempt to gain economic advantage that would not otherwise be available.

When Is There a Misuse of Process?

There is a misuse of process if the accuser:

  1. Used the process in a way not contemplated or authorized by law, and
  2. Had done so intentionally, knowing it would be a misuse.

May I Sue Public Prosecutors and Government Official for Abuse of Process?

Very rarely. Most courts grant immunity and special privileges to public prosecutors and government officials to be free from liability. However, they must generally be acting in their official capacity and not beyond the scope of their powers.

Who Can I Get Advice from if I Am Considering a Lawsuit for Malicious Prosecution?

The best person to go to for advice is a criminal defense attorney who also has experience in civil lawsuits, or a malpractice attorney. An attorney will be able to advise you of your rights and let you know if you may be entitled to money damages in a lawsuit against the state or federal government the prosecutor represented.

If you have been the victim of abuse of process, and want to file a lawsuit, or just want to know if you have a lawsuit against your accuser, you may find the advice of a criminal attorney to be helpful in this complicated area of law.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.