Malicious prosecution is an intentional tort that occurs when a person maliciously initiates or
pursues a legal action—either civil or criminal—without probable cause, which eventually
terminates in favor of the victim 1-4. It is considered an abuse of the court’s process by
wrongfully setting the law in motion to harm another person 3, 5.
To master this concept, you must understand several foundational and nuanced concepts:
1. The Five Essential Elements
In most jurisdictions, a plaintiff must prove the following to succeed in a malicious prosecution
claim:
● Prosecution by the Defendant: The defendant must have initiated or been instrumental
in continuing the prior proceeding 4, 6, 7.
● Favorable Termination: The prior proceeding must have ended in favor of the person
being prosecuted 1, 6, 8.
● Absence of Probable Cause: The proceeding was brought without a reasonable belief
that it would succeed 1, 4.
● Actual Malice: The defendant acted with a "wrong or improper motive," something other
than a desire to see justice served 4, 9, 10.
● Damages: The plaintiff must have suffered actual injury to their reputation, person, or
property 4, 11, 12.
2. The Concept of Favorable Termination
Historically, plaintiffs often had to show "indicia of innocence" to satisfy this element 13.
However, the legal landscape has shifted significantly:
● The "No Conviction" Rule: Under recent U.S. Supreme Court precedent (Thompson v.
Clark), a plaintiff only needs to show that the prosecution ended without a conviction
14, 15.
● Scope: This includes cases where charges were dropped, dismissed for speedy trial
violations, or vacated, as long as they did not result in a conviction 16, 17.
● Innocence vs. Finality: Favorable termination does not necessarily imply a judicial
finding of innocence; it simply means there was no court finding of guilt 18.
3. The Bar for Probable Cause
Probable cause is the "crux" of the claim and represents a very high bar 19.
● Objective and Subjective Belief: It means the defendant in good faith believed, and a
reasonable person in similar circumstances would have believed, that the plaintiff was
guilty of the offense 20-22.
● Timing: Probable cause is judged by appearances to the defendant at the time they
initiated the prosecution, not based on facts discovered later 23, 24.
● Presumption of Cause: If a court in the prior proceeding made a factual finding against
the plaintiff (e.g., denying a motion to dismiss), it often creates a presumption that
probable cause existed, which can only be overcome by evidence of fraud or perjury
25-27.
pursues a legal action—either civil or criminal—without probable cause, which eventually
terminates in favor of the victim 1-4. It is considered an abuse of the court’s process by
wrongfully setting the law in motion to harm another person 3, 5.
To master this concept, you must understand several foundational and nuanced concepts:
1. The Five Essential Elements
In most jurisdictions, a plaintiff must prove the following to succeed in a malicious prosecution
claim:
● Prosecution by the Defendant: The defendant must have initiated or been instrumental
in continuing the prior proceeding 4, 6, 7.
● Favorable Termination: The prior proceeding must have ended in favor of the person
being prosecuted 1, 6, 8.
● Absence of Probable Cause: The proceeding was brought without a reasonable belief
that it would succeed 1, 4.
● Actual Malice: The defendant acted with a "wrong or improper motive," something other
than a desire to see justice served 4, 9, 10.
● Damages: The plaintiff must have suffered actual injury to their reputation, person, or
property 4, 11, 12.
2. The Concept of Favorable Termination
Historically, plaintiffs often had to show "indicia of innocence" to satisfy this element 13.
However, the legal landscape has shifted significantly:
● The "No Conviction" Rule: Under recent U.S. Supreme Court precedent (Thompson v.
Clark), a plaintiff only needs to show that the prosecution ended without a conviction
14, 15.
● Scope: This includes cases where charges were dropped, dismissed for speedy trial
violations, or vacated, as long as they did not result in a conviction 16, 17.
● Innocence vs. Finality: Favorable termination does not necessarily imply a judicial
finding of innocence; it simply means there was no court finding of guilt 18.
3. The Bar for Probable Cause
Probable cause is the "crux" of the claim and represents a very high bar 19.
● Objective and Subjective Belief: It means the defendant in good faith believed, and a
reasonable person in similar circumstances would have believed, that the plaintiff was
guilty of the offense 20-22.
● Timing: Probable cause is judged by appearances to the defendant at the time they
initiated the prosecution, not based on facts discovered later 23, 24.
● Presumption of Cause: If a court in the prior proceeding made a factual finding against
the plaintiff (e.g., denying a motion to dismiss), it often creates a presumption that
probable cause existed, which can only be overcome by evidence of fraud or perjury
25-27.
