N.J. Model Civil Jury Charge 3.12

3.12 MALICIOUS PROSECUTION ACTION BASED UPON A

PRIOR CRIMINAL PROCEEDING (Approved before 1984)

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 subj ect 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 ar e (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 favor able to the person who initiated

the proceedings is generally conc lusive 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 proba ble cause may be established by

proof circumstantial in nature sin ce usually direct evidence is not

obtainable. Mayflower, supra.

MALICE

Malice in this connection means th e 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 ordi nary 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 ther e was reasonable or probable cause for

instituting the criminal action against the plaintiff.

In cases of criminal prosecution reas onable 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 th at the accused committed it. However,

conjecture or unfounded suspicions do not constitute reasonable or probable cause.

Whether probable cause existed doe s 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 defenda nt 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 plai ntiff 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 w ith the conflicting contentions as

to reasonable or probable cause.]

Fifth. The plaintiff must establish th at 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 te rm, 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 agai nst the plaintiff, the plaintiff cannot

recover even if you find that he/she ha s 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 Adjudica tory 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 na ture 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 te rminated 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.

1See Toft, supra.

2See Toft, supra. and cases cited therein, which involve d 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.

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 abandonm ent 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 preponde rance of the credible evidence. 4 If the jury

3See Mayflower, supra.

4See Cabakov v. Thatcher, 37 N.J. Super. 249 (App. Div. 1955).

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]:

5Galafaro v. Kuenstler, supra., Dombrowski v. Metropolitan Life Ins. Co ., 126 N.J.L . 535

(E.&A. 1941).

6Cabakov, supra.; Mayflower, supra; Dombrowski, supra.

7Earl v. Winne, 14 N.J. 119 (1953).

8Patrick v. Esso Standard Oil Co., 156 F.Supp. 336 (D.C.N.J. 1957).

Any person who falsely and maliciously and without

probable cause makes a compla int, 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 suffe red 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 equitabl e with the kind of malice necessary to

establish punitive damages and is differe nt 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 ta king 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 probabl e cause for believing has

committed the offense of shoplifting as defined in this

section.

A merchant who causes th e 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.