Malicious Prosecution by Instituting a False Criminal Charge

North Carolina State Civil Tort

A tort is a civil wrong at law that gives an injured person a “cause of action” (a right to file a lawsuit in court) to seek recovery for the damages received as a result of the tort. A person has a right to be free from wrongful and false criminal prosecution in North Carolina. This right to individual liberty is protected by the law. When a person violates this right, there are a variety of causes of actions (claims which may be brought by lawsuit) against the person who instituted the false criminal charge. One of these claims, and the one discussed in this article, is the claim of Malicious Prosecution by Instituting a False Criminal Charge.

In such a case, the question for the jury to decide is, “Did the defendant maliciously prosecute the plaintiff?”

On this issue the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, three things:

(1) First, that the defendant instituted a criminal proceeding against the plaintiff without probable cause. “Probable cause” would exist if there are facts and circumstances that would cause a reasonable person to believe that prosecution is justified. The jury will be instructed by the court to consider only the facts and circumstances that the defendant knew or should have known at the time the proceeding was instituted.

(2) Second, that the defendant instituted the proceeding against the plaintiff with malice. “Malice” exists when a person acts out of a motive of ill will, spite, grudge, revenge, or oppression. “Malice” exists when a person commits a wrongful act intentionally and without excuse or just cause, or proceeds recklessly in disregard of the rights of others without probable cause. “Malice” also exists when a person’s primary goal in commencing the prosecution is to accomplish some collateral purpose or to advance some private interest. The jury is permitted, but not required, to infer the existence of malice from a lack of probable cause.

(3) Third, that the proceeding ended in the plaintiff’s favor. The plaintiff need not have won on the merits. It is sufficient that the proceeding is dismissed because of the defendant’s failure to appear and prosecute the action. It is also sufficient that the proceeding was dismissed by the judge or the district attorney.

At trial, the presiding judge will instruct the jury that if the jury finds by the greater weight of the evidence that the defendant maliciously prosecuted the plaintiff, then it would be the duty of the jury to answer this issue “yes” in favor of the plaintiff. If, on the other hand, the jury does not so find, then it would be the jury’s duty to answer the issue “no” in favor of the defendant.

Note that, where a private individual gives information he reasonably believes to be true to a public official of another’s supposed criminal misconduct, if the public official then independently exercises his discretion whether to institute a criminal proceeding based upon that information, then the private individual is protected from liability, even if the information provided ultimately proves to be false. The tort of malicious prosecution comes into play when the person gives information to the public official that he does not reasonably believe to be true or where he simply lies to the public official about an incident in order to obtain criminal charges against the plaintiff.

It is important to remember that time is always important in legal matters and that the failure to take action within the time allowed may forever bar your claim. For this reason, seek the advice of counsel right away. These time limits are called “statutes of limitation” and they function to limit the amount of time that a claim can be brought for a particular type of claim. Certain things can “toll” these statutes, meaning that they can temporarily stop the running of the statute of limitation to bar the claim, while other things can have no effect on the running of the statute.

These are very complex issues that are best determined by skilled legal counsel. What is important is that, if you have a situation that you believe may be “actionable” (may give rise to a lawsuit), then you should seek the advice of an attorney without delay.

Call the Byers Law Office today.

Rev. 10/11/23