Malicious Prosecutions Of Criminal Cases: What Are The Standards?


Like many others, I was shocked recently to read the story behind the legal ordeal of Englishman Mark Pearson.  According to a story published in the Huffington Post, Pearson was falsely accused of “sexual assault” for doing nothing more than walking past a woman in a subway station.  Pearson’s prosecution was apparently based on the allegations of the woman (a famous actress), and on some subway video.

The Crown Prosecution Services (CPS) apparently believed that they had enough evidence to proceed to trial, even though a closed-circuit video showed that absolutely nothing had taken place.  The only way the police even found Pearson was by tracking him down (two months later) using subway “Oyster card” records.  Pearson has stated that he had an expert examine the video, and the expert stated that it was a “physical impossibility” for him to have digitally penetrated the accuser while walking past her.

And yet, despite the absence of a prima facie case against Pearson, charges against him were filed anyway.  Not only were they filed, but the prosecution let the case go to trial.  Although he was acquitted after 90 minutes of deliberation by the jury, the entire Kafkaesque ordeal has left him traumatized and bitter.

The case has, to say the least, raised serious questions about the professional judgment, and fitness for office, of the prosecutors.  As a practicing defense attorney with the experience of numerous jury trials in the United States, I found the facts of this case to be deeply troubling.  It would perhaps be more accurate to say I was incensed and outraged.  Someone like Pearson should have some legal recourse for the damages he has suffered.

The case prompted me to re-examine some aspects of the case-law surrounding malicious prosecutions.  I know next to nothing about the law in the United Kingdom.  I am confident that Mr. Pearson has been exploring his legal options.

But the discussion that follows will lay out a basic overview of a cause of action for malicious prosecution in the United States.  Case law and statutory law varies greatly from one jurisdiction to another.  Those looking for specific legal advice should consult with an attorney where they live as soon as possible.  No article on a website is substitute for competent legal advice for a specific situation.

We should first note that malicious prosecution civil actions are quite rare.  In my experience, the vast majority of criminal prosecutions are based on a good faith belief that a crime has been committed.  Most prosecutors are doing the best they can with the resources and information they have available to them.


However, prosecutors have a great deal of power; more power, in fact, than most citizens realize.  With the stroke of a pen, they can initiate legal actions that can turn people’s lives upside down.  Like any public official, they can be subject to political pressures, corruption, prejudices, malfeasance, or incompetence.  Civil causes of actions against “rogue” prosecutors are important because they help to keep government official honest and accountable.

The general elements of an American civil action for malicious prosecution are the following:

(1) the initiation of a criminal proceeding,

(2) its favorable termination for plaintiff,

(3) lack of probable cause, and

(4) malice on the part of the prosecutor in pursuing the action,

(5) resulting injury or damage to the plaintiff.

See, e.g., the New York Supreme Court, Appellate Division’s ruling in Morant v. City of New York, 95 A.D. 3d 612 (2012); Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983).  See also Jordan v. Deese, 317 S.C. 260 (1995).

To prevail, a plaintiff must meet each and every one of these elements.  We will examine each of them.

Criminal prosecutions are initiated by the filing of an information or a complaint.  In either scenario, there is some court involved in the process.  The filing of an information may be commenced by a grand jury indictment.  The filing of a criminal complaint may be initiated by the prosecutor’s office at a lower court in the state in which the offense is alleged to have taken place.

Criminal complaints are subject to “probable cause” review by a lower court judge.  If there is no probable cause found (i.e., probable cause that a crime was committed and that the defendant committed it), then the presiding judge is obliged to dismiss the complaint, with or without prejudice, at his discretion.

Grand jury indictments are supposed to be the result of probable cause findings by the grand jury.  Unfortunately, experience has shown that grand juries are often too ready to accept the assertions and evidence presented to them (in secret) by the prosecutor.

Regardless, “probable cause” is a low standard and it is one that can easily be met in most cases.  A complaint being “bound over” for trial after a preliminary hearing on a complaint, or a grand jury indictment, will be sufficient for a probable cause finding.

The “favorable termination” for the plaintiff means only that the criminal defendant must have been found not guilty of the charge, or the charge must have been dismissed.  There is no “favorable” end to a case if the defendant is convicted by a jury.

The “malice” requirement seems to be the element that is most contested.  What is malice?  One legal authority states it this way:

It is an elementary rule, supported by numerous authorities, that it is essential to a recovery in the action of malicious prosecution that the action or prosecution complained of must have been maliciously instituted.  34 Am Jur 727, Malicious Prosecution, § 44.

It is generally held that malice in fact, by which is meant that sort of malice which is dependent upon the existence of a wrongful or improper motive, as distinguished from purely legal or constructive malice, is essential to the maintenance of an action for malicious prosecution.

However, in proving malice in the sense in which the word is here used, it is not necessary to prove any actual spite, ill will, or grudge. There may be either such personal malice or the malice indicated by an improper motive.  Id. p. 728, § 45.

Malice in a criminal prosecution exists where the prosecutor was actuated by an improper motive—that is, by any motive other than that of bringing the accused to justice. If the intention to bring the accused to justice is present, and its influence is controlling, the action of the prosecutor is not malicious although it may be influenced to some extent by other and forbidden considerations.  Id. p. 729, § 45.

The emphasis in the text above is mine.

Malice, then, is the existence of an improper motive:  one that arises from other motive than the neutral and dispassionate desire to enforce the law.

How can malice be shown?  Those who are acting with malicious motives rarely leave an overt record of their motivations.  Normally, such motives will have to be shown by extrinsic evidence:  that is, by all the surrounding facts and circumstances.

In the present Pearson case, troubling questions remain.  Again, as stated before, I do not know what the elements for a cause of action in England are for malicious prosecution.  But it is not unreasonable to assume that there is some analogous civil method of redress there.

The focus of inquiry on Pearson’s case should be:  what were the motivations of the prosecutor?  Was the prosecution swayed or influenced by the alleged celebrity status of the “victim”?  Did the prosecutor have some improper motive?  These are questions that have not been answered, as far as I can tell.

One hopes that Mr. Pearson is, at this very moment, going over these issues with his attorneys.  For those of us in the United States, we should remain vigilant regarding potential abuses by those in positions of power and trust.

Power is wielded by people, and is therefore subject to all the abuses, passions, and inconsistencies that flow from that reality.


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