Definition
Malicious prosecution is a tort that occurs when a person wrongfully initiates or continues a legal proceeding against another without probable cause and with malice, and the proceeding ends in the accused person's favor. It allows someone who was dragged through a baseless criminal or civil case to recover damages for the harm that the wrongful proceeding caused. Because it must not chill legitimate reporting and litigation, the law requires the plaintiff to prove several strict elements.
Legal Meaning
Malicious prosecution is an intentional tort aimed at people who weaponize the legal system. When someone sets the machinery of a criminal charge or a civil lawsuit in motion against another without any legitimate basis, and does so out of malice or an improper motive, the victim may sue for the damage that resulted—legal fees, lost income, emotional distress, and harm to reputation. The tort historically applied to wrongful criminal prosecutions, but most states now extend it to baseless civil proceedings as well.
To succeed, a plaintiff generally must prove each of these elements: (1) the defendant initiated or continued a criminal or civil proceeding against the plaintiff; (2) the proceeding terminated in the plaintiff's favor; (3) there was no probable cause for the original proceeding; (4) the defendant acted with malice or a primary purpose other than bringing the accused to justice; and (5) the plaintiff suffered damages. The absence of probable cause and the presence of malice are typically the hardest elements to establish.
Two elements deserve special attention. Favorable termination means the earlier case ended in a way consistent with the plaintiff's innocence or non-liability—an acquittal, dismissed charges, or a defense verdict—rather than a settlement or a purely technical dismissal. Lack of probable cause means there was no reasonable basis to believe the claim or charge was valid. Because courts do not want to discourage people from reporting genuine crimes or filing meritorious lawsuits, the elements are demanding and the rules vary by state.
Key Points
- Malicious prosecution targets the wrongful initiation of a baseless legal proceeding
- It applies to criminal cases and, in most states, to civil cases as well
- The plaintiff must prove favorable termination of the underlying case
- There must have been no probable cause for the original proceeding
- The defendant must have acted with malice or an improper purpose
- The plaintiff must have suffered actual damages such as fees, lost income, or reputational harm
- These claims are notoriously difficult to win because every element must be met
- Elements, available damages, and immunities for prosecutors vary by state
Real-World Example
A business owner becomes embroiled in a personal feud with a former partner. Out of spite, the owner files a police report falsely accusing the former partner of embezzling company funds, knowing the accusation is untrue and fabricating documents to support it. The former partner is charged, hires a defense attorney, and spends months fighting the case before the charges are dismissed when the falsified documents are exposed.
Here, the former partner may have a strong malicious prosecution claim. The owner initiated a criminal proceeding; it terminated favorably when the charges were dismissed for lack of merit; there was no probable cause because the accusation was fabricated; the owner acted with malice driven by personal animus rather than a genuine belief in guilt; and the former partner suffered real damages, including legal fees and reputational harm. Contrast this with a person who reports a suspected crime in good faith based on what they actually saw—even if the suspect is later acquitted, an honest report supported by reasonable suspicion will not support a malicious prosecution claim.
The Elements of Malicious Prosecution
| Element | What Must Be Shown |
|---|---|
| Initiation | The defendant began or continued a criminal or civil proceeding |
| Favorable Termination | The proceeding ended in the plaintiff's favor on the merits |
| No Probable Cause | There was no reasonable basis for the original proceeding |
| Malice | The defendant acted with an improper or wrongful purpose |
| Damages | The plaintiff suffered actual harm from the proceeding |
Related and Distinct Claims
Malicious prosecution is often confused with similar torts that involve misuse of the legal system. Abuse of process targets the improper use of a legal procedure for an ulterior purpose after a case is underway—such as using a subpoena or other tool to coerce or harass—and it does not require a favorable termination or a lack of probable cause. False arrest and false imprisonment concern the unlawful detention of a person rather than the wrongful pursuit of a case, though the same incident can give rise to multiple claims.
The tort also intersects with criminal procedure concepts like probable cause and the role of the plaintiff versus defendant. Prosecutors generally enjoy broad immunity from malicious prosecution claims for their official charging decisions, which is one reason these suits often target private individuals or businesses who provided false information. Because the line between aggressive but legitimate litigation and malicious prosecution is fact-specific, the distinctions are explored further in our guide on civil vs. criminal cases.
Related Terms
Dragged Through a Baseless Case?
Malicious prosecution claims are demanding—an attorney can assess whether you qualify
Find a Lawyer Near YouWhen You Need a Lawyer
Malicious prosecution is one of the more technically demanding torts, so legal guidance is especially valuable. Consider consulting an attorney if:
- You were criminally charged or sued based on what appears to be a fabricated or baseless claim
- The underlying case ended in your favor and caused you serious financial or reputational harm
- You are unsure whether your case's outcome counts as a favorable termination
- You need to evaluate whether the other party lacked probable cause and acted with malice
- You are concerned that a lawsuit you are considering could expose you to a similar claim
An attorney can assess each element and the strength of the evidence before you commit to litigation. For help finding counsel and understanding costs, see our guides on how to choose a lawyer and understanding legal fees.
Frequently Asked Questions
What are the elements of malicious prosecution?
Most states require the plaintiff to prove that the defendant initiated or continued a legal proceeding against them, that the proceeding ended in the plaintiff's favor, that it was begun without probable cause, that the defendant acted with malice or an improper purpose, and that the plaintiff suffered damages as a result. All of these elements must be present, which is why these claims are difficult to win.
What does 'favorable termination' mean?
Favorable termination means the earlier case ended in a way that reflects the innocence or non-liability of the person now suing. Examples include an acquittal, dismissed charges, or a judgment in that person's favor. A settlement or a dismissal for technical reasons usually does not count, because it does not indicate the underlying claim lacked merit. This element prevents people from suing before they have actually won the first case.
Why is malicious prosecution so hard to prove?
These claims are difficult because the plaintiff must prove several demanding elements at once, especially the lack of probable cause and the presence of malice. Courts are cautious about discouraging people from reporting crimes or filing legitimate lawsuits, so they set a high bar. The plaintiff must also have already won the underlying case, which adds time and uncertainty before the malicious prosecution claim can even begin.
What is the difference between malicious prosecution and abuse of process?
Malicious prosecution targets the wrongful initiation of a proceeding without probable cause that ends in the plaintiff's favor. Abuse of process targets the misuse of a legal procedure for an improper purpose after a case has begun, such as using a subpoena to harass, and it does not require a favorable termination or lack of probable cause. The two torts overlap but focus on different stages and types of misconduct.
Filing Deadlines Still Apply
A malicious prosecution claim must be filed within your state's statute of limitations, which usually begins to run once the underlying proceeding ends in your favor. See the deadlines in our state-by-state statute of limitations guide.