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September 6, 2022

What Is Malicious Prosecution? Lawsuit Examples

Find out what malicious prosecution is and if you can sue for it. We'll dive into the facts, average settlements and other helpful information for your case.

Malicious prosecution is the wrongful institution of criminal or (under certain circumstances) civil proceedings against someone without proper grounds. The malicious prosecution definition includes both criminal and civil proceedings. If you become the victim of malicious prosecution, the assistance of a malicious prosecution attorney is essential.

Can I Sue for Malicious Prosecution?

Yes, you can sue for malicious prosecution. If you do so, you are pursuing an ordinary civil claim for money damages, not trying to incarcerate the offender. If you plan to sue the district attorney or some other government official, you have an uphill battle to fight. You might still win, however, if the defendant’s conduct was outrageous enough. Intentional misconduct motivated by a heated re-election campaign is an example of such conduct.

The Elements of Malicious Prosecution

To win a claim against a defendant, you must prove the following elements of malicious prosecution:

  1. The defendant (in the malicious prosecution lawsuit) instituted, abetted, or continued a civil or criminal legal proceeding against you.
  2. You won the case (the criminal charges or civil claims against you were dismissed, for example).
  3. The defendant had no probable cause for instituting the proceeding.
  4. The defendant’s primary purpose was malicious.
  5. You suffered harm because of the defendant’s above-described actions.

Since malicious prosecution is a civil offense, you can prove malicious prosecution by a “preponderance of the evidence” standard. This standard is much lower than the burden of proof that would apply to criminal prosecution. Remember that you must prove every one of the elements of malicious prosecution by a “preponderance of the evidence” standard.

Malicious Prosecution Lawsuits

average settlement for malicious prosecution

Although a malicious prosecution lawsuit can be hard to win because many courts have negative attitudes towards such claims, a skilled malicious prosecution lawyer can exert a tremendous influence on the outcome of such a case.

Malicious prosecutions can be perpetrated by law enforcement officials or private citizens. Contact an experienced civil rights attorney in Philadelphia for further analysis of your particular claim.

Examples of Successful Malicious Prosecution Lawsuits

The stereotypical malicious prosecution example occurs when a prosecutor pursues a prosecution against a defendant on “trumped-up” charges. These types of malicious prosecution cases are relatively unusual, however.

Following are some malicious prosecution examples where lawsuits were successful:

  • Bank employees lied to the prosecution about the plaintiff’s banking activities.
  • A creditor filed an unjustified criminal complaint against a debtor to pressure the debtor into paying a debt.
  • A police officer deliberately presented incomplete facts to a magistrate to secure a search warrant against the plaintiff.

The malicious prosecution examples described above are common examples of successful claims of malicious prosecution, in the sense that in most cases, the defendant is a private party.

Examples of Malicious Prosecution Lawsuits that Failed

Not all malicious prosecution examples are encouraging to would-be plaintiffs. Some examples of unsuccessful malicious prosecution lawsuits include:

  • A plaintiff who lost a lawsuit against the defendant because the statute of limitations had expired, rather than on the merits of the case.
  • A plaintiff who sues the defendant's attorney simply for pursuing a case against the plaintiff that the attorney believed would be unsuccessful. A prosecution is not malicious simply because the attorney was pessimistic about their client’s chances of victory. There are certain situations, however, when a defendant’s attorney can bear liability.
  • Threatening to file a meritless lawsuit for ulterior motives is not malicious prosecution. This malicious prosecution example illustrates the principle that you must take legal action to trigger liability for malicious prosecution.

Some wrongful acts that do not amount to malicious prosecution can nevertheless qualify as another civil offense (see below).

What’s the Difference Between Malicious Prosecution, Abuse of Process, and False Arrest?

Malicious prosecution can easily be confused with other offenses that resemble malicious prosecution but involve different elements. The two most common are an abuse of process and false arrest:

  • Abuse of process: Can occur when the perpetrator has reasonable grounds for pursuing the case but acts with improper motivation. Filing a lawsuit against someone to gain an advantage in an unrelated matter can be an abuse of process, for example. Abuse of process is not uncommon in child custody disputes.
  • False arrest: False arrest occurs when the police arrest you without probable cause (in simple terms, probable cause means roughly “a good reason to believe you are guilty.”).  Not all arrests require an arrest warrant, but if the police officer has a warrant, it is very difficult to win a false arrest claim.

What all three of these offenses share in common is the use of the justice system, whether civil or criminal, for improper purposes.

Average Settlement for Malicious Prosecution

malicious prosecution examples

Malicious prosecution damages can be significant, whether the “prosecution” in question was civil or criminal in nature. Most of the time, the damages awarded for malicious prosecution are compensatory damages, with no punitive damages added. Compensatory damages can include both economic damages (you were fired from your job due to a false criminal prosecution, for example), and non-economic damages such as emotional distress or loss of reputation.

How much can you sue for malicious prosecution? As much as you want, but the real question is how much can you actually win. There is no meaningful “average settlement for malicious prosecution”. The amount of compensation varies so much from case to case, that any dollar amount stated as an “average” would be inevitably misleading.

It is fair to say, however, that damages both in and out of court for malicious prosecution based on unjust criminal charges tend to be higher than damages for unjust civil claims. This is especially true if the defendant spent time in jail or prison.

Can I Get Punitive Damages?

Courts award punitive damages, if at all when the defendant’s conduct was outrageous. A court might refuse to grant you punitive damages even if you win the case, however. The defendant must have acted with “conscious disregard” for your rights and with an ultimate motive other than achieving justice.

Unlike malicious prosecution cases, you must prove your eligibility for punitive damages by “clear and convincing evidence.” This standard is harder to meet than the “preponderance of the evidence” standard.


Malicious prosecution offenders are often unscrupulous debt collectors or people seeking revenge for personal reasons that might have nothing to do with the false accusation itself. In any case, malicious prosecution is a tremendous threat to the entire justice system.

Alan J. Tauber is a renowned civil rights attorney in Pennsylvania. If you believe you have been victimized by malicious prosecution, contact us online or call (215) 575-0702.

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