Malicious Prosecution

August 14, 2009

By: David K. Jaffe

Connecticut has three closely related actions for the tort of misuse of the legal system: malicious prosecution, vexatious litigation and abuse of process. Although quite similar, each of the three is conceptually distinct and addresses a different tort. Malicious prosecution is a cause of action for the bringing of a criminal action with malice and without probable cause. Vexatious suit is a similar action, differing primarily in that it is based upon a prior civil action.[1] Abuse of process is somewhat different, as it is the misuse or subversion of a properly instituted process for an improper or ulterior purpose.[2]

Originally, the term malicious prosecution encompassed actions arising out of prior civil as well as criminal actions. Even then, however, an action for malicious prosecution was distinct from an action for abuse of process. "The action of malicious prosecution lies where a civil or criminal action has been instituted with malice and without probable cause and has terminated successfully. Abuse of process is the misuse of process regularly issued to accomplish an unlawful ulterior purpose. The distinction between malicious prosecution or vexatious suit and abuse of process as tort actions is that in the former, the wrongful act is the commencement of an action without legal justification, and in the latter it is in the subsequent proceeding, not in the issue of process, but in its abuse.[3]

Since 1930, the courts have differentiated between malicious prosecution arising out of prior criminal actions and vexatious suits arising out of prior civil actions. A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implied a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor.[4]

An action for malicious prosecution arises when a person is prosecuted for a crime by someone who acts under due form of law but with an improper or malicious intent.[5] The essential elements of an action for malicious prosecution are the discharge of the plaintiff, want of probable cause, and malice.[6] It is not necessary that the plaintiff is an action for malicious prosecution was acquitted in the previous trial. Rather, it is sufficient that he was discharged without a trial under circumstances amounting to an abandonment of the prosecution.[7] However, the mere fact that the prosecution terminated in the plaintiff's favor does not in itself establish want of probable cause or malice, which must be determined at trial upon all the facts.[8]

For a malicious prosecution suit, the plaintiff must prove lack of probable cause in the underlying action. The Court has defined probable cause as knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action.[9] Although malice may be inferred from lack of probable cause, the lack of probable cause may not be inferred from malice.[10]

The existence of probable cause in the underlying suit is an absolute protection against an action for malicious prosecution.[11] Whether the facts of the underlying case suffice to support a finding of probable cause is a question of law for the court's determination. However, if the facts are in dispute, the court may submit the issue of probable cause to the jury as a mixed question of law and fact.[12]

If the state brought only one charge in the underlying earlier criminal action, a valid judgment of conviction upon the charge is a conclusive defense to an action for malicious prosecution.[13] Even if the conviction is later overturned on appeal, the conviction at the trial level after a full and fair trial serves as strong presumptive evidence of probable cause. Such a conviction ordinarily will be deemed conclusive evidence of probable cause. However, this rule does not apply if the plaintiff in the action for malicious prosecution pleads and proves that the prior conviction was obtained by fraud, perjury or other corrupt means; and the evidence is admissible for this purpose.[14]

In an action for malicious prosecution, the plaintiff must prove that the underlying action terminated in his favor. The first approach requires that the underlying action went to judgment and resulted in a verdict of acquittal in the criminal context or a finding of no liability in the civil context. The second approach permits a malicious prosecution action whenever the underlying action was abandoned or withdrawn without consideration - that is, withdrawn without either a plea bargain or a settlement favoring the parties originating the action.[15]


[1] Vandersluis v. Weil, 176 Conn. 353 (1978).

[2] Schaefer v. O.K. Tool Co., 110 Conn. 528, 532 (1930).

[3] Schaefer v. O.K. Tool Co., 110 Conn. 528, 532 (1930).

[4] DeLaurentis v. New Haven, 220 Conn. 225 (1991); Vandersluis v. Weil, 176 Conn. 353 (1978); Calvo v. Bartolotta, 112 Conn. 396, 397 (1930).

[5] 13 Am. Jur. Proof of Facts, 3 rd 126-127 (1991).

[6] See v. Gosselin, 133 Conn. 158, 159 (1946); Lo Sacco v. Young, 20 Conn. App. 6, 19 (1989)

[7] See v. Gosselin, 133 Conn. 158, 160 (1946).

[8] See v. Gosselin, 133 Conn. 158, 160 (1946).

[9] Vandersluis v. Weil, 176 Conn. 353, 356 (1978); Paranto v. Ball, 132 Conn. 568 (1946); McGann v. Allen, 105 Conn. 177 (1926).

[10] Vandersluis v. Weil, 176 Conn. 353, 356 (1978).

[11] Vandersluis v. Weil, 176 Conn. 353, 356 (1978).

[12] DeLaurentis v. New Haven, 220 Conn. 225, 252 (1991); Vandersluis v. Weil, 176 Conn. 353, 356 (1978); Brodrib v. Doberstein, 107 Conn. 177 (1927).

[13] McMahon v. Florio, 147 Conn. 704, 706 (1960).

[14] McMahon v. Florio, 147 Conn. 704, 707 (1960).

[15] DeLaurentis v. New Haven, 220 Conn. 225, 251 (1991) (we have never required a plaintiff in a vexatious suit action to prove a favorable termination either by pointing to an adjudication on the merits or by showing affirmatively that the circumstances of the termination indicated his innocence or non-liability, so long as the proceeding has terminated without consideration.