Malicious Prosecution

Being caught up in our criminal justice system is one of the most stressful situation someone can face.  Unfortunately, there are some people that decide that they will use the power of our criminal justice system against another, not because they were victims of a crime, but for self-gain.

While a tough path to travel, Virginia has recourse.  Indeed, you can sue for Malicious Prosecution.  To be clear, every case is different, and these claims are not easy. But if you’ve been wrongfully prosecuted, here’s some useful information.

Do you want to make it super easy for us to consider your case. Click here to fill out our Potential Malicious Prosecution Case From.

What is Malicious Prosecution in Virginia?

To define Malicious Prosecution, we look to Virginia’s Model Jury Instructions:

Malicious prosecution is the institution of criminal proceedings by one person against another, maliciously and without probable cause , of those proceedings ended in a manner (favorable; not unfavorable) to the person prosecuted.

VMJI 41.000

Obviously, this gives rise to a few questions.  The first of which is what is “instituting criminal proceedings?”  Again, we look to our jury instructions:

A person institutes criminal proceedings against another by: 1) bringing the criminal charge(s); or 2) cooperating actively in bringing criminal charges(s).

VMJI 41.010

To be clear, just because a person serves as a witness in a case against you, this alone is not enough. But if that person actively cooperated after the charge, done maliciously and without probable cause, that may be enough.

The model jury instructions further indicate that:

Malice exists when the controlling motive for instituting criminal proceedings is any reason except genuine desire to see justice done, to enforce the law, or to punish the guilty. Malice may be inferred from a lack of probable cause.

VMJI 41.020

However, simply because someone was acquitted does not mean that a charge was instituted with malice. VMJI 41.035

How is “probable cause” defined?

According to VMJI, probable cause existed if:

…if the facts and circumstances known to the defendant and on which he acted were such that a reasonable and prudent person acting on the same facts and circumstances would have believed the Plaintiff guilty of the crime which he was suspected.

In determining whether probable cause existed, you shall consider the facts and circumstances as they appeared to the defendant at the time he instituted the criminal proceedings.

A lack of probable cause may not be inferred from malice.

VMJI 41.040

What does it mean to have a favorable (or not unfavorable) outcome?

Of course, if you’re acquitted, this is a favorable outcome.  But there may be some instances short of acquittal that may also allow a viable claim. Indeed, in Thompson v. Clark, 142 S. Ct. 1332 (2022), the US Supreme Court affirmed a federal claim where, there wasn’t an affirmative showing of innocence, but rather simply a demonstrated of non-conviction. There, the defendant’s charge was simply dropped with no explanation from the Court.

What are some defenses to Malicious Prosecution?

To be clear, Virginia law does not favor malicious prosecution cases. So, they are not easy claims. Where prosecutions are based upon mistaken identity, and the charges weren’t instituted without ill will, you will not succeed.  Additionally, if you were convicted of the crime, you do not have a viable claim.

Further, where a person institutes criminal charges on the advice of counsel, that is a defense to malicious prosecution, even if that advice turned out to be wrong. VMJI 41.080

What damages can you claim for being the victim of a malicious prosecution?

Indeed, being wrongfully and maliciously prosecuted is overwhelmingly traumatic.  Therefore, as VMJI 41.140 provides, the law allows for a claim for damages as follows:

  • Property loss;
  • Necessary expenses;
  • Insult;
  • Pain;
  • Mental suffering, anxiety, distress;
  • Harm to Plaintiff’s reputation.

Further, if successful, you can seek punitive damages if you can establish “actual malice.” Punitive damages is an award by the jury to send a message to the community that such behavior will not be tolerated.

Actual malice is “a sinister or corrupt motive such as hatred, personal spite, ill will, a desire to injury the plaintiff, or a conscious disregard of the rights of others.” VMJI 41.150

When considering your claim, you do need to think through the value of damages you are claim. (An important case study.)

As stated above, malicious prosecution cases are inherently difficult. In addition to proving the defendant liable for their actions, you must also consider the value of your claimed damages. While not a perfect analogy to all cases, a 2023 case out of Windsor, Virginia is useful to consider with trying to assess your damages.

There, the Plaintiff (a US Army Officer) was pepper sprayed, pushed to the ground, and handcuffed by law enforcement during a 2020 traffic stop. While most expected the Plaintiff to be awarded a signficant sum (indeed, he asked the jury for $1 million), the jury (in finding that the Plaintiff was assaulted by law enforcement) ended up awarding around $3,600.

Of course, this is just one case. And every jury is different. However, you do need to think through the damages you seek in your case. As the cost of pursuing any civil claim (including malicious prosecution) can costs thousands of dollars.

Do you want to make it super easy for us to consider your case. Click here to fill out our Potential Malicious Prosecution Case From.

Still have questions?

Make sure to check out our Personal Injury & Criminal Defense Practice Pages where we’ve answered many other questions you likely have.  James Abrenio is a Fairfax-Based Personal Injury & Criminal Defense attorney who practices throughout Northern Virginia. You can learn more about James Abrenio, some of our Prior Results, and Read Our Reviews.  Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.