Misuse of Legal Procedure/Abuse of Process

Question 1

Malicious Prosecution

Answer 1

This concerns the wrongful institution of criminal proceedings by one private citizen against another, resulting in damage

1. Instigation of criminal proceedings by D
   
   1. criminal proceedings must be initiated by a charge made to the police or other public officials in such form as to cause to issuance of a warrant or indictment against the accused.
   2. one who procures a third person to institute prosection is liable; however merely providing truthful info to a public officer is not liable.
   3. Not the same as false imprisonment because the arrest is valid, whereas FI it is not.
2. Proceedings terminated showing P not guilty
   
   1. P must allege and prove that the criminal proceeding was terminated in a manner indicating his innocence (ex: acquittal after trial, dismissal of the case, grand jury refusing to indict). However, D is not liable if termination is indecisive or consistent with guilt (eg: dismissed on technical, prodecural grounds, or impossibility of bringing accused to trial, etc).
3. Lack of probable cause
   
   1. P must show that D insituted proceedings without probable cause - i.e., that D had no honest and reasonable belief in the truth of the charge.
   2. Lack of probable cause must be proved independently from the improper purpose requirement, because even a person acting from improper motives may know of facts that give rise to a reasonable and honest belief of guilt.
4. Improper purpose
   
   1. It must appear that D instituted the proceeding for some improper purpose, some motive other than bringing a guilty person to justice. This is sometimes called “malice.”
5. Causation and Damages
   
   1. P may recover expenses incurred in defending against criminal prosecution and also damages for mental suffering, embarrassment, harm to reputation, damage to business, etc., as well as punitive.
6. Defenses
   
   1. P’s guilt.
   2. Privilege: judges, prosecutors, and various o ther law enforcement officers are absolutely privileged and immne from charges of malicious prosecution.

Question 2

Malicious Institution of Civil Proceedings

Answer 2

Many states extend the concept of malicious prosecution to civil proceedings as well. The basic elements are the same as those inactions based on malicious criminal proceedings, and the same types of damages may be recovered.

However, a large minority rejects this action in order to encourage resort to the courts to settle disputes.

Question 3

Spoliation of Evidence

Answer 3

1. Intentional spoliation of evidence:
   
   1. existence of a potential lawsuit
   2. D’s knowledge of its existence,
   3. willful destruction of evidence,
   4. intent to interfere with P’s prospective civil suit,
   5. a causal relationship between the evidence destruction and the inability to prove the lawsuit, and
   6. damages
2. Negligent spoliation
   
   1. In such cases, courts generally require some special circumstance (contract, agreement, or statute) to create a duty on D to take care to preserve the evidence.

Question 4

Abuse of Process

Answer 4

This is a narrow tort commited by the misuse of process - civil or criminal - for some ulterior purpose. This means that D intentionally employed court process for a purpose other than that for which the process was designed.

1. showing intentional misuse and damage to P
2. no showing of lack of probable cause required
3. No showing of favorable result
4. counterclaim: P is allowed to counterclaim in the same action for damages arising from the abuse.
5. Who may sue? the party who is abused and also by any third party whose property is injured thereby.