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What Is Malicious Prosecution?

If you are in a situation where you were wrongfully sued or criminally charged with something you did not do and you won the case, you may have won but may still feel that the situation has harmed you.

Your reputation may be damaged, and you may be angry that you were put through a trial or court proceeding for no good reason. You may feel you should be entitled to some kind of restitution or compensation for what you were needlessly put through. In this situation, you may be able to sue for malicious prosecution.

Understanding the Players

There are two people involved in a malicious prosecution case. However, it can be confusing because you and the other person switch roles in the two cases involved.

  • The first case is the original case, the underlying case in which you are the defendant. The other person was the plaintiff (if it was a civil case), or they were the alleged victim or an important and key witness who caused the criminal case to be brought against you.
  • The second case is the one in which you sue for malicious prosecution. In that case, you are the plaintiff, and the other person is the defendant because you sue them for what they did.

Understanding Malicious Prosecution

The most important thing to remember about malicious prosecution is that it contains the word “malicious” for a reason. The person who brought the first, underlying case against you or was the alleged victim in the first case must have brought the case or caused the case to be brought against you out of malice or spite. In short, they intended to hurt you or your reputation, and they used the case to do just that.

Malicious prosecution does not apply when someone sued you or alleged a crime against you and they reasonably believed they had a real case, but you were found to be innocent, or the court ruled in your favor. It only applies when the case was actually brought out of malice or an intent to harm you or cause trouble for you.

Requirements for Malicious Prosecution

To be able to successfully sue someone for malicious prosecution, you need to fulfill the following benchmarks:

  1. The other person contributed to the underlying case being brought against you. For example, they sued you in a civil case or they were the victim, or an important witness in a criminal case in which you were the defendant
  2. That prior action ended in your favor (i.e., you won that first case)
  3. There was no probable cause for the case that was brought against you
  4. The other person acted with malice. For example, they knew there was no basis for the first case and intentionally caused it to be brought against you.
  5. You suffered financial damages as a result of that case

Damages for Malicious Prosecution

The most common damages for malicious prosecution are the attorney’s fees you paid in the first case. You cannot, however, obtain the attorney’s fees incurred in bringing the malicious prosecution case itself.

What About the DA?

If you were wrongfully prosecuted for a criminal charge, you might wonder if you can sue the district attorney who handled the case against you. DAs have a lot of immunity from being sued for their role in prosecuting criminal cases.

A malicious prosecution case can rarely be brought against the DA, but there are situations in which it may be possible, so it is best to talk with your attorney about the facts of your case to determine if you have a cause of action.

If you think you have a malicious prosecution case, schedule an appointment with Burnham Law. Our attorneys help you determine your best course forward to get everything you are entitled to. Call us today at 303-872-4273.

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Ashlee
Hoffmann

Senior Associate - Civil Litigation

Boulder

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