Misuse of Legal Procedure

Question 1

What are the three forms of Misuse of Legal Procedure?

Answer 1

(1) Malicious Prosecution
(2) Wrongful Civil Proceedings
(3) Abuse of Process

Question 2

What is the RULE for Malicious Prosecution?

Answer 2

occurs when a government official causes criminal charges to be filed against a person when the official knows the probable cause is lacking, and the charges are filed for some other reason outside the interest of justice/ In such cases, the victim 14th Amendment (right to liberty) has been violated

Question 3

What are the ELEMENTS of Malicious Prosecution? (5)

Answer 3

(1) Institution or continuation of a legal proceeding against a P, (2) by the at the instance of the D, (3) the termination of such prior proceeding in the P’s favor, (4) the absence of probable cause for institution of the prior proceeding, (5) malice as a primary purpose for that proceeding, and (6) some injury or damage to the P as a result of the prior proceeding
(1) & (2): initiation of the criminal proceedings
- the D must be actively involved in the beginning or continuing the criminal proceeding against the P
(3) : favorable termination
- termination: the criminal proceeding cannot be revived so further prosecution would require a new proceeding
- favorable: the termination was on the merits and in the favor of the accused
(4) : the absence of probable cause
- the D must be shown to have lacked either a reasonable or honest belief in the truth of the charge
(5) : malice
- D must be shown to have had an improper motive for bringing the action: D must have a purpose other than that of bringing a guilty party to justice

Question 4

What are the RECOVERABLE DAMAGES for Malicious Prosecution? (3)

Answer 4

(1) Damages for loss of reputation
(2) Damages for emotional distress and humiliation
(3) Damages for the cost of defending against the criminal charges

Question 5

What are some DEFENSES for Malicious Prosecution?

Answer 5

Proof of P’s guilt: if the guilt of the P is established to the jury’s satisfaction, the fact that P was in fact guilty of the crime will serve as a complete defense

• Standard: proof by a preponderance of the evidence

Advice of counsel – seeking advice of counsel tends to show good faith and therefore, negates the element of malice

Question 6

Wrongful Civil Proceedings v. Malicious Prosecution: define the elements of WCP and MP and policy

Answer 6

Wrongful Civil Proceedings: sometimes called malicious prosecution

Elements:
Essentially the same as for malicious prosecution of a criminal proceeding, however, elements 3 and 4 as listed above, do not apply

Some courts add the requirement of “special injury”

Special injury: injury caused by the seizure of P’s person or property (initiating)

POLICY: to prevent certain abuses of conduct and prevent frivolous lawsuits

Malicious Prosecution

• Requires elements (3) and (4)
• Is less controversial than wrongful civil proceedings

Question 7

What is the RULE/ELEMENTS/Process for Abuse of Process?

Answer 7

RULE: abuse of process refers to a person using the legal system in a way that is not necessarily serving the underlying legal action, but rather to achieve other purposes.

1) The existence of an ulterior motive or purpose in using the process
2) An act in the use of the process that is not proper in the regular prosecution of the legal proceeding

Process
- The “process of the court” means some enforceable order of the court. Process thus includes many orders and proceedings that are part of litigation, such as: discovery or seizures pursuant to pre-judgment attachments