Zebra Misc


Ask the Attorney April 2015By Michael Hadeed
There are times when a person is wrongfully accused of a crime. Vindictiveness, discrimination, revenge, hate, or other improper motives may cause such accusations. An action for malicious prosecution is the remedy for baseless and malicious criminal prosecution. It is generally limited to criminal prosecutions (as opposed to civil suits), for example when a person swears out a false criminal complaint against another for an alleged assault and battery which never occurred for a malicious purpose or other vindictive purpose.

The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant. In most states the claim must be filed within a year after the end of the original case.
A claim of malicious prosecution is a tort action. A TORT action is filed in civil court to recover money damages for certain harm suffered. The plaintiff in a malicious prosecution suit seeks to win money from the defendant as recompense for the various costs associated with having to defend against the case and other personal damages suffered, and send a message to the defendant to refrain from future wrongful conduct.
An action for malicious prosecution is distinct from an action for false arrest or false imprisonment. If a person is arrested by a police officer who lacks legal authority for the arrest, the proper remedy is an action for false arrest. If a person is confined against her or his will, the proper remedy is an action for false imprisonment. An action for malicious prosecution is appropriate only when the judicial system has been misused.
The tort of malicious prosecution in Virginia has four main elements. The criminal prosecution must be:
• Malicious,
• Instituted by or with the cooperation of the defendants,
• Without probable cause, AND
• Terminated in a manner not unfavorable to the plaintiff.

In most malicious prosecution cases, the second and fourth elements are not at issue. It is usually clear that the defendants instituted the prosecution by going to the police and the magistrate and it is clear that the prosecution ended in a manner favorable to the plaintiff when the charges were dropped or dismissed. However, the plaintiff must show all four elements to succeed in the action. Under Virginia law the plaintiff has a relatively high burden since actions for malicious prosecution are not favored in Virginia, where established case law has held that “the standard for ‘maintaining such actions are more stringent than those applying to most other tort claims.” quoting Lee v. Southland Corp., 219 Va. 23, 26 (1978).

The two remaining elements are probable cause and malice. For malicious prosecution in Virginia, probable cause is defined as “knowledge of facts and circumstances that excite the belief in a reasonable mind at the time the action complained of was taken that the person is guilty of the crime for which he is charged.” This probable cause must have existed at the time the complained of action was taken. Reilly v. Shepherd, 273 Va. 728, 733 (2007).

While having an arrest warrant issued from a magistrate judge is helpful to the argument that the defendant had probable cause, it is not conclusive. The arrest warrant is only a complete defense if the defendant provided all of the pertinent details to the police and the magistrate prior to the magistrate issuing the warrant. Am. Rwy. Express Co. v. Stephens, 148 Va. 1, 15, 138 S.E. 496, 500 (1927) (finding that the defendant had a “perfect defense because of the fact that all through this unfortunate affair it acted under the advice of the counsel . . . who were in possession of all the facts known” to the defendant). On the other hand, if the Defendant did not share all of the facts with the Magistrate or police, then the arrest warrant does not conclusively demonstrate probable cause. Oxenham v. Johnson, 241 Va. 281, 291 (1991) (noting that the arrest warrant “was so totally lacking probable cause” despite the magistrate finding probable cause from the statement of the defendant). Instead, probable cause must be determined from the facts by demonstrating that the Defendants responded to circumstances that “excite the belief in a reasonable mind” that the Plaintiff is guilty of a crime.

If the Plaintiff is able to show that the Defendants lacked probable cause then the fact finder could infer malice. Reilly, 273 Va. at 733 (“Malice may be inferred from a lack of probable cause, but a lack of probable cause may not be inferred from malice.”). But, if the Defendants are able to demonstrate that there was probable cause then it does not matter if the Defendant acted maliciously since both elements are essential to the cause of action. “In the context of a malicious prosecution action, malice is defined as any controlling motive other than a good faith desire to further the ends of justice, enforce obedience to the criminal laws, suppress crime, or see that the guilty are punished.” Hudson v. Lanier, 255 Va. 330, 333 (1998).

Overall, if the Defendants are able to show that they shared all of the relevant information with the magistrate prior to the issuance of the arrest warrant than it is likely that the lack of probable cause element will not be met. If this element, or the malice element, is not met then the plaintiff does not have sufficient evidence to show malicious prosecution. However, if it is not clear that the magistrate had all of the relevant information then the case will probably come down to convincing the fact finder, the judge or jury, that one side is more believable than the other. Whether you ultimately win or lose, bringing the malicious prosecution case accomplishes the proper ends of justice.

Related Articles

One Comment

  1. I am looking for an attorney to help me with a malicious prosecution case. Please contact me at 571-275-9738, after 4pm. Thank you.

    Lenir Richardson.

  2. In Nov,2016, I received my second protective order from my ex-wife, this time falsely alleging child abuse. I fought the allegations in Alexandria JDRC in December as pro se litigant (and won), and having been working ever since to file a malicious prosecution case in an attempt to discourage her from ever doing this again. Though I know these types of cases are discouraged under VA Law due to the chilling effect it might have on actual abuse victims, I would like to know how to go forward. I filed one in Alex Circuit Ct, but it was dismissed w/o prejudice, citing wrong venue. Where do I file it? Clerk of court JDRC refuses to file it, as does District Court clerk.

  3. I would like to know the answer to Norman’s question if someone could help us out… I am in a similar situation.

  4. Laughter if this really Happens to be a remedy Alexandrua city entertains or any lawyer practicing in the state of Virginia pursues!!!

Back to top button