MALICIOUS
PROSECUTION ACTION BASED UPON A PRIOR CRIMINAL PROCEEDING model jury charge 3.12
A. Elements
of a Malicious Prosecution
An action at law for
malicious prosecution based upon a prior criminal judicial proceeding consists
of several elements.
First. The plaintiff must establish the existence of
a criminal judicial proceeding against him/her.
On this subject the (undisputed) facts are (state the nature of the
criminal charge instituted against the plaintiff, the name of the judicial
tribunal in which it was instituted, etc.)
Second. The plaintiff must establish that the
defendant was responsible for or caused that proceeding to be instituted
against him/her.
On this subject the
(undisputed) facts are (state what the defendant did to initiate the criminal
judicial proceeding against the plaintiff such as signing a complaint, etc.)
Third. The plaintiff must establish that the
criminal proceeding terminated favorably to him/her or in a manner not adverse
to him/her.
On this subject the
(undisputed) facts are (state facts relating to the nature of the termination,
such as a termination in his/her favor, a failure of the grand jury to indict,
a failure of the magistrate to find a prima facie case, a voluntary withdrawal
or abandonment, etc.).
Fourth. The plaintiff must establish a lack of
reasonable or probable cause for the criminal prosecution.
On this subject there is
sharp conflict in the proofs.
NOTE
TO JUDGE
REASONABLE
OR PROBABLE CAUSE
Probable cause has
been defined as a reasonable ground of suspicion supported by circumstances
sufficient to warrant an ordinarily prudent person in believing the party is
guilty of the offense. It must be more
than mere conjecture or unfounded suspicion.
Galafaro v. Kuenstler, 53 N.J. Super.
379 (App. Div. 1958); Dombrowski v.
Metropolitan Life Ins. Co., 18 N.J.
Misc. 240, aff’d 126 N.J.L. 545 (E.&A. 1941). See Earl
v. Winne, 14 N.J. 119 (1953); Shoemaker v. Shoemaker, supra; Little v. Little, 4 N.J. Super. 352 (App. Div. 1949); Lane v. Pennsylvania R.R. Co., 78 N.J.L. 672 (E.&A. 1910).
Where the facts
involving probable cause are not in dispute, the question of probable cause is
one of law to be determined by the court.
Shoemaker v. Shoemaker, supra.
Vladar v. Klopman, 89 N.J.L. 575 (E.&A. 1916).
Even an actual
determination on the merits against the defendant in the prior proceedings of
itself, has no probative force as evidence of want of probable cause. There must be some independent proof of the
other elements. Mayflower, supra; Shoemaker, supra.
On the other hand,
a judgment favorable to the person who initiated the proceedings is generally
conclusive of probable cause even though subsequently reversed on appeal. Toft v.
Ketchum, 18 N.J. 280 (1955), aff’d, 18 N.J. 611 (1955) citing Restatement
of Torts, § 675, comment (b), § 680, comment (b) (1938).
The holding over by
a magistrate is strong evidence or probable cause, though it is not in itself
dispositive of the question. Where the
accused is committed or held to bail by a magistrate or indicted by the Grand
Jury that constitutes prima facie evidence of probable or reasonable
cause. Galafaro v. Kuenstler, supra.
The failure of the
Grand Jury to indict is not, however, considered conclusive on the question of
probable cause. Galafaro v. Kuenstler, supra.
Proof of malice and
want of probable cause may be established by proof circumstantial in nature
since usually direct evidence is not obtainable. Mayflower,
supra.
MALICE
Malice in this connection means the
intentional commission of a wrongful act without just cause or excuse. Brennan
v. United Hatters, 73 N.J.L. 72
(E.& A. 1906); Kamm v. Flink, 113
N.J.L. 583 (E.& A. 1934); Rainier’s Dairies v. Raritan Valley Farms,
Inc., 19 N.J. 552 (1955).
In Brennan
v. United Hatters, supra, the court
said:
. . . But malice in
the law means nothing more than the intentional doing of a wrongful act without
justification or excuse. . . And what is a wrongful act without the meaning of
this definition? We answer, any act which
in the ordinary course will infringe upon the rights of another to his/her
damage is wrongful, except it be done in exercise of an equal or superior
right. In Mogul Steamship Co. v. McGregor, 23 Q.B. Div. pp. 598-613, Lord
Justice Bowen said: ‘Now intentionally
to do which is calculated in the ordinary course of events to damage, and which
does, in fact, damage another in that other person’s property or trade, is
actionable if done without just cause or excuse, is what the law calls a
malicious wrong.
Malice may be inferred from a lack of
probable cause. Galafaro v. Kuenstler, supra;
Hammill v. Mack International Truck Corp.,
104 N.J.L. 551 (E. & A. 1928).
(ELEMENTS
OF A MALICIOUS PROSECUTION ACTION BASED UPON A PRIOR CRIMINAL PROCEEDING —
Fourth Element cont.)
The plaintiff contends
that there was a lack of reasonable or probable cause and the defendant
contends that there was reasonable or probable cause for instituting the
criminal action against the plaintiff.
In cases of criminal
prosecution reasonable or probable cause exists where there are reasonable
grounds for suspicion or belief that an offense was committed, and there are
circumstances, sufficiently strong in themselves, to warrant an ordinarily
cautious person to believe that the accused committed it. However, conjecture or unfounded suspicions
do not constitute reasonable or probable cause.
Whether probable
cause existed does not depend upon a consideration of what the facts actually
were, but rather upon a consideration of what the facts were as they appeared
to or were known by or were believed to be by the defendant when he/she
instituted the criminal proceeding against the plaintiff.
It was not necessary that
the defendant have actual cause to prosecute the plaintiff; it was necessary
only that he/she has reasonable or probable cause for so doing.
If you find that the
defendant had reasonable or probable cause to believe that plaintiff was guilty
of the charge it is immaterial that the plaintiff was in fact innocent. Even if you believe that plaintiff was
innocent of the crime, he/she cannot recover if you find that the defendant had
reasonable or probable cause to believe that he/she was guilty. Nor can you draw an inference of lack of
reasonable or probable cause just because the criminal prosecution ended by
(here state how prosecution ended).
On the other hand, if you
find that the defendant did not have an honest belief that the plaintiff was
guilty and the charges were thereby falsely brought, you must conclude that
there was no reasonable or probable cause.
[Here,
review the facts dealing with the conflicting contentions as to reasonable or
probable cause.]
Fifth.
The plaintiff must establish that the defendant was activated by a
malicious motive in prosecuting the criminal complaint against him/her.
The malice contemplated
by this element is not malice in the sense that the word is sometimes
used. The kind of malice I speak of
means the intentional doing of a wrongful or unlawful act without just cause or
excuse. Such malice is an intentional
act which an ordinarily cautious man would realize that under ordinary
circumstances damage would result to one’s person or property, and which does
in fact damage another’s person or property.
The element of malice may be inferred from a lack of reasonable or
probable cause.
Sixth. The last element that must be proved is that
the plaintiff suffered damage, as I shall later define that term, as a
proximate result of a malicious prosecution.
[If the defense of advice of counsel is within the
issues of the case, the following should be added:]
In this case the
defendant has raised the defense of advice of counsel. This is an affirmative defense and the burden
of establishing it by a preponderance of the credible evidence is upon the
defendant.
If you find that the
defendant truthfully communicated to his/her attorney all of the material facts
of the case and then relied upon the advice of his/her attorney to institute
the criminal prosecution against the plaintiff, the plaintiff cannot recover even
if you find that he/she has proved all the necessary elements to establish
malicious prosecution.
On
the other hand, the advice of an attorney will not protect a party who consults
an attorney unless all the material facts within his/her knowledge are fully
and truthfully stated to the attorney.
If you find from the evidence that in seeking the advice of counsel the
defendant did not make a full, fair and complete disclosure of all material
facts within his/her knowledge to his/her counsel, the advice of counsel is no
defense to this action.
NOTE
TO JUDGE
The law does not
look with favor upon actions for malicious prosecution; it does not encourage
them. The reason is embedded deeply in
our jurisprudence. Extreme care must be
exercised to avoid the creation of a reluctance to seek redress for civil or
criminal wrongs for fear of being subjected to a damage suit if the action
results adversely. ayflower v. Thor, 15 N.J.
Super. 139 (1951), aff’d 9 N.J. 605 (1952); Toft v. Ketchum, 18 N.J.
280 (1955).
B. Plaintiff
Must Establish Institution of a Criminal Judicial Proceeding or other
Adjudicatory Proceedings Against Him/Her by the Defendant
The general rule is that
a malicious prosecution action must be predicated upon the institution of a
proceeding before a judicial tribunal.[1]
Under certain
circumstances, however, a malicious prosecution action may be founded upon the
institution of other than a judicial proceeding, at least where such
proceedings are adjudicatory in nature and may adversely affect legally
protected interests.[2]
C.
Plaintiff Must
Establish that the Criminal Proceeding Terminated Favorably to Him/Her or in a
Manner Not Adverse
The weight of authority in
this country, including New Jersey, is to the effect that the original
proceeding must have terminated before an action for malicious prosecution can
be instituted. This is a condition
precedent to the existence of the cause of action and must be pleaded.
Although the rule is
generally stated that the action must have terminated favorably to the
plaintiff in the malicious prosecution action, all that is necessary is that
there be a termination not adverse to the plaintiff coupled with additional
proof of malice and lack of probable cause.[3]
Cases:
Voluntary
withdrawal or abandonment supports cause of action. Shoemaker
v. Shoemaker, 11 N.J. Super. 471 (App. Div. 1951); Hammill v. Mack International Truck Corp.,
104 N.J.L. 551 (E.& A. 1911).
Failure of Grand
Jury to indict is sufficient. Weisner v. Hansen, 81 N.J.L. 601 (E. & A. 1911).
Failure of
magistrate to find prima facie case is sufficient. Shoemaker
v. Shoemaker, 11 N.J. Super. 471 (App. Div. 1951).
Nolle Prosequi is
sufficient. MacLaughlin v. Lehigh Valley R.R. Co., 93 N.J.L. 263 (Sup. Ct. 1919).
D. Defense of Advice of Counsel
It would appear that the
defense of advice of counsel is an affirmative defense and the burden should be
upon the defendant in the malicious prosecution action to establish it by a
preponderance of the credible evidence.[4] If the jury
determines that the defense has been established it is a complete defense and a bar to the action.[5]
determines that the defense has been established it is a complete defense and a bar to the action.[5]
The rule requires that a
party who requests the advice of counsel must communicate fully all the
material facts within his/her knowledge and must not state matters that he/she
knows are false.[6]
E. Statute
of Limitations
An action for malicious
prosecution must be instituted within six years from the date the cause of
action arose.[7] Since the action is personal in nature, a
wrong against a person’s feelings and reputation, it abates on death.[8]
F.
Malicious Prosecution Actions by Professional Persons
In Toft v. Ketuchum,
[supra], our Supreme Court held that
the filing of a groundless complaint with an ethics and grievance committee
does not allow an attorney to predicate a malicious prosecution or similar
action upon it. To overcome the Toft holding the Legislature enacted the
following statute [N.J.S.A.
2A:47A-1]:
Any person who falsely and maliciously and without probable cause makes a complaint, orally or in writing of unprofessional conduct against a member of any profession requiring a license or other authority to practice such profession, to any court or to any ethics and grievance committee, or to any board or other public body authorized to and having the right to hear such complaint and to act thereon or to recommend action thereon and to take or recommend the taking of disciplinary action against the person complained of, such as disbarment or suspension in the case of an attorney-at-law, or the revocation or suspension of a license of other professional persons, shall be liable for any and all damages suffered and sustained by the member of a profession so complained of, to be recovered in a civil action in the nature of an action at law for malicious prosecution. In any such action, exemplary or punitive damages may be awarded.
Any person who falsely and maliciously and without probable cause makes a complaint, orally or in writing of unprofessional conduct against a member of any profession requiring a license or other authority to practice such profession, to any court or to any ethics and grievance committee, or to any board or other public body authorized to and having the right to hear such complaint and to act thereon or to recommend action thereon and to take or recommend the taking of disciplinary action against the person complained of, such as disbarment or suspension in the case of an attorney-at-law, or the revocation or suspension of a license of other professional persons, shall be liable for any and all damages suffered and sustained by the member of a profession so complained of, to be recovered in a civil action in the nature of an action at law for malicious prosecution. In any such action, exemplary or punitive damages may be awarded.
In the only case interpreting
this statute, the Court, in a very brief opinion in Black v. Koener, 44 N.J.
140 (1965), said that the malice required by this statute to support a malicious
prosecution action is “malice in fact.”
“Malice in fact” seems to
be equitable with the kind of malice necessary to establish punitive damages
and is different from the common law ingredient of malice necessary to
establish the malicious prosecution action.
See Brennan v. United Hatters,
supra.
G. Statute on
Shoplifting
In malicious prosecution
cases arising out of shoplifting situations the Legislature provided statutory
immunity to merchants who feel the need to reasonably detain individuals whom
they have cause to believe are concealing or stealing unpurchased
merchandise. This law provides further
protection if a merchant causes the arrest of a shoplifter.
The statute [N.J.S.A. 2C:20-11(e)] is as follows:
A
law enforcement officer, or a special officer, or a merchant, who has probable
cause for believing that a person has willfully concealed unpurchased
merchandise and that he can recover such merchandise by taking the person into
custody, may for the purpose of attempting to effect such recovery, take the
person into custody and detain him in a reasonable manner for not more than a
reasonable time. Such taking into
custody by a law enforcement officer or special officer or merchant shall not
render such law enforcement officer, special officer or merchant criminally or
civilly liable in any manner or to any extent whatsoever.
Any law enforcement officer
may arrest without warrant any person he has probable cause for believing has
committed the offense of shoplifting as defined in this section.
A
merchant who causes the arrest of a person for shoplifting, as provided for in
this section, shall not be criminally or civilly liable in any manner or to any
extent whatsoever where the merchant has probable cause for believing that the
person arrested committed the offense of shoplifting.
[2]See Toft, supra. and cases cited therein, which
involved a proceeding against an attorney before a county ethics and grievance
committee. See also, Rainier’s Dairies
v. Raritan Valley Farms Inc., 19 N.J.
552 (1952) which involved a complaint before the director of milk industry for
revocation of license.
