Let’s say you were charged and prosecuted for a crime you did not commit, and that there was no reasonable way you could have committed the crime. If the prosecutor is aware there is no way you could have committed the crime but decides to try and prosecute you for crime anyway, you may have a case for malicious prosecution. The prosecutor must be acting outside the limits of his position and bordering on attorney malpractice.

If you end up being found not guilty of the crime (either originally or on appeal) you can file a lawsuit against the prosecutor for malicious prosecution. Your argument would be that:

  • You were prosecuted for a crime for which you did not commit and therefore were found not guilty
  • There was no probable cause that you were guilty of committing the crime
  • The prosecutor knew that there was no probable cause you committed the crime, and yet still continued to prosecute you and tried to prove that you were guilty of committing the crime
  • In some jurisdictions, there may be an additional requirement that you suffered injuries beyond the usual distress typically brought on by criminal prosecution.

Can I Sue An Attorney Who Isn’t a Criminal Prosecutor?

Yes, civil attorneys can be sued for malicious prosecution in the same manner and for the same reasons that a criminal prosecutor would be sued for malicious prosecution. The main difference is that victims of malicious prosecution in criminal law are subject to harsher penalties, prison time and in some cases, death, than the victims in civil law.

What Is The Difference Between Malicious Prosecution and Attorney Malpractice?

Malicious prosecution can be considered a type of attorney malpractice. When there is attorney malpractice, it is typically because the client’s attorney made a critical mistake which injured the client that a reasonable attorney wouldn’t have made. Malicious prosecution, on the other hand, occurs when the prosecutor or the attorney for the other side commits malpractice, resulting in a lawsuit which never should have been brought in the first place.

What Do You Mean by Probable Cause?

Probable cause essentially means that a reasonable person, given the evidence, would think there is a reasonable possibility that you committed the crime. In order to have a successful conviction for malicious prosecution, you must show that the prosecutor did not have any reasonable evidence indicating you committed the crime. The most common examples of malicious prosecution are:

  • Falsifying or failing to disclose evidence
  • Ignoring crucial facts that no reasonable attorney would ignore
  • Failure to question crucial witnesses

What Factors May Hinder a Claim For Malicious Prosecution against Criminal Prosecutors?

Bringing malicious prosecution claims against a criminal prosecutor can be rather tricky, as criminal prosecutors have governmental immunity in their capacity as advocates of the state. A prosecutor’s immunity is limited to their role as government lawyers though; a prosecutor can’t be sued for charging a person with a crime because that is the prosecutor’s job. They can, however, be sued for performing their jobs recklessly and without regard for the consequences of innocent people.

What Kind of Damages Could I Potentially Get in a Lawsuit against the Prosecutor?

If you succeed in your lawsuit, you may be entitled to compensatory and punitive damages. Compensatory damages simply means you would be paid back all the money you lost while defending yourself on this charge. This can include things like attorney’s fees, court costs, money lost on taking time off from work, etc.

Who Can I Get Advice from if I Am Considering a Lawsuit for Malicious Prosecution?

The best person to go to for advice is a criminal defense attorney who also has experience in civil lawsuits, or a malpractice attorney. An attorney will be able to advise you of your rights and let you know if you may be entitled to money damages in a lawsuit against the state or federal government the prosecutor represented.