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Malicious prosecution is a common law intentional tort.Like the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution.
Thus technically, the service of process itself—in the form of a summons—could be considered abuse of process under the right circumstances, e.g. fraudulent or malicious manipulation of the process itself, but in malicious prosecution, the wrongful act is the actual filing of the suit itself for improper and malicious reasons.
Thompson v. Clark, 596 U.S. ___ (2022), was a United States Supreme Court case concerning whether a plaintiff suing for malicious prosecution must show that they were affirmatively exonerated of committing the alleged crime.
The court upheld its prior decisions that there are four required elements for the tort of malicious prosecution: The prosecution must be initiated by the defendant. The prosecution must be terminated in the plaintiff's favour. There was a lack of reasonable and probable grounds to commence or continue the prosecution.
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Malicious prosecution – Similar to abuse of process, but includes intent, pursuing without probable cause, and dismissal in favor of the victim. In some jurisdictions, malicious prosecution is reserved for the wrongful initiation of criminal proceedings, while malicious use of process refers to the wrongful initiation of civil proceedings.
In jurisprudence, prosecutorial misconduct or prosecutorial overreach is "an illegal act or failing to act, on the part of a prosecutor, especially an attempt to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment."
In 2003, the defendants sued for wrongful prosecution, [5] with Ron and Linda Sterling receiving C$924,000 in 2004. [6] John Popowich, one of the five police officers falsely accused, received a settlement of $1.3 million for malicious prosecution. [7]