What Is Malicious Prosecution

Monday, October 16, 2017 | By Aaron A. Herbert
What Is Malicious Prosecution

Prosecution is the process through which the state brings criminal charges against an individual. Any prosecution must have a foundation of probable cause or reason to believe the individual committed the crimes in question. Additionally, criminal charges exist with the intent of upholding justice. “Malicious prosecution” is a legal term pertaining to any prosecution made without probable cause or for purposes other than bringing an alleged criminal to justice. A victim of malicious prosecution can file action for damages suffered because of the malicious prosecution.

Proving Malicious Prosecution

A malicious prosecution is essentially a baseless accusation brought against an individual for the purposes of harassing or distressing him or her. The plaintiff in a malicious prosecution case must provide evidence for several factors to succeed in a claim. These four elements include:
  • Proving the initiator of the prosecution acted in bad faith, or for some other reason other than the pursuit of justice against an alleged offender.
  • The resulting proceeding led to a ruling in the victim’s favor.
  • There was no probable cause that would have reasonably led to the proceeding.
  • The initiator of the proceeding acted with malice toward the victim.
Victims of malicious prosecution face several hurdles in pursing damages for these incidents. First, proving that a police officer or government agent did not have probable cause is usually difficult. The other difficulty lies in the legal concept of qualified immunity. Many law enforcement agencies and government agencies are immune from legal action from private citizens except under extraordinary circumstances. The victim will need to prove that the malicious prosecutor acted outside the scope of his or her position and engaged in willful and unreasonable conduct. The final hurdle for victims of malicious prosecution lies in state laws. Some states define malicious prosecution and unfair trials differently and will allow a plaintiff to sue for one, but not the other. Additionally, various elements of a malicious prosecution case may lead a judge to dismiss the allegations or allow the plaintiff to file an action for an unfair trial instead. People commonly conflate malicious prosecution with false arrest or false imprisonment. False arrest applies to situations in which someone without the proper authority to conduct the arrest arrests a victim. False imprisonment applies to confining someone against his or her will. Malicious prosecution only applies when someone intentionally misuses the justice system.

Damages for Malicious Prosecution Cases

Generally, plaintiffs in malicious prosecution cases seek to recover any expenses they incur because of the malicious prosecution. This can extend to attorney’s fees, court filing fees, lost income from time spent in prison or being otherwise unable to work, and other compensation. In some cases, plaintiffs can receive compensation for the emotional distress of withstanding an abuse of the justice system. Plaintiffs may also sue for damaged reputation and lost future earning potential. Anyone who suffers from malicious prosecution needs to act quickly to protect his or her rights. A competent attorney can help a victim of malicious prosecution prove the improper actions of the defendant in question and help the victim secure compensation for such a distressful – and often expensive – ordeal.

Aaron A. Herbert

Founding Attorney

Aaron A. Herbert Author Image

Aaron A. Herbert is a Texas attorney, Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization.
For over a decade he has shown an unwavering commitment to clients who were seriously injured by major accidents and industrial catastrophes. During that time he has earned the reputation as one of America’s most aggressive trial lawyers by achieving noteworthy recoveries from judges and juries, as well as substantial settlements prior to trial, the majority of which contained negotiated confidentiality agreements at the request of the defense. When asked about these cases, Mr. Herbert has said that each case not only justified the recovery level, but that no one would trade places with any one of these victims in return for any amount of money, once they know the facts and severity of the injuries and tragedy involved. According to Mr. Herbert, “there can be no substitute for passion, preparation and persistence in the practice of law”. He is known not only for this tenacious preparation, but also for his imagination in the courtroom. He is passionate and persistent in seeking to obtain the maximum case value for each individual client at trial or through settlement, while reducing the stress of litigation on his clients. Born and raised in Dallas, Texas, Mr. Herbert enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. After the Marines, he obtained a Bachelor of Science in Criminal Justice from Texas A&M University, then a Juris Doctorate from the University of Oklahoma College of Law. There he graduated in the top of his class and became an eternal Sooners Football fan. Aaron has worked as a zealous advocate for injured clients at several boutique personal injury litigation firms where he amassed numerous jury verdicts. After spending a year as the top earning litigation attorney at a firm that frequently tops verdict search as one with the highest number of trial wins in Texas, Aaron accepted a position as a the managing pre-litigation attorney at another Dallas personal injury firm. Over the next seven years he transitioned to the managing litigation attorney, and that firm grew to one of the largest personal injury firms in Dallas. In 2010 he formed the Law Firm of Aaron A. Herbert, to get back to a focus on developing each individual case and maximizing case value for each client. Mr. Herbert practices law with the belief that a well taken care of, highly engaged and motivated team of employees working in a cooperative team environment will result in superior representation and great results for the firm clients. He believes in always setting a goal of achieving the best possible results for each and every client.
Education
Texas A&M University (B.S. Criminal Justice, 1999)
University of Oklahoma College of Law (J.D., 2002)
Professional Associations
Licensed to practice in Texas (2002)
Board Certified in Personal Injury Trial Law – Texas Board of Legal Specialization (2008)
Member
State Bar of Texas
American Bar Association
American Trial Lawyer Association
Texas Trial Lawyers Association
Dallas Trial Lawyers Association
Dallas County Bar Association
Tarrant County Bar Association
Million Dollar Advocates Forum
Nation Trial Lawyers – Top 100 Trial Lawyers
Publications
Litigating Dog Bite Cases, Texas Dog Law Seminar, Dallas 2009

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