Malicious Prosecution is both a civil and a criminal cause of action. Here, we discuss only the criminal action.
NRS 199.310 states:
A person who maliciously and without probable cause therefor, causes or attempts to cause another person to be arrested or proceeded against for any crime of which that person is innocent:
- If the crime is a felony, is guilty of a category D felony and shall be punished as provided in NRS 193.130; and
- If the crime is a gross misdemeanor or misdemeanor, is guilty of a misdemeanor.
The simple explanation is that if you were to intentionally and wrongfully causes another person to be arrested or charged with a crime, then you could be charged with malicious prosecution.
What does it mean by “maliciously”?
“Malicious,” in this context, means that your conduct is done out spiteful or cruel intentions.
The second phrase in the statute, “without probable cause therefor,” adds support to the concept of “maliciously.” If your conduct has probable cause, then it is not “malicious.”
What is the conduct that is being referred to?
NRS 193.310 relates to “causing or attempting to cause another person to be arrested or proceeded against for any crime of which that person is innocent.”
Taken in conjunction with the first part of the statute, this creates the 4 elements of “malicious prosecution.”
- Arrest or Filing of a Criminal Action;
- Lack of probable cause to support the arrest or commence the action; and
- Dismissal of charges because the person was innocent.
What are the penalties for “Malicious Prosecution”?
The penalty for Malicious Prosecution depends on the crime that you have maliciously caused another person to be arrested for, or charged with.
- If the underlying crime is any category of felony, then you will be charged with a category D felony, which carries with it:
- Between 1 and 4 years in a Nevada State Prison; and
- The possibility of fines up to $5,000.00.
- If the underlying crime is either a gross misdemeanor or misdemeanor, then you will be charged with a misdemeanor, which carries with it:
- Up to 6 months in jail; and/or
- Up to $1,000.00 in fines.
What defenses do I have to a Malicious Prosecution charge?
The particular defenses that will apply to your case will depend on the specific facts of your case. Since a prosecutor has to prove every element of a crime beyond a reasonable doubt in order to convict you, the best defenses to a crime are to attack each of the crime’s elements. In this case, attacking the crime’s elements would be done by showing:
- No Malice – As should be pretty clear from the name of the crime, “Malicious Prosecution” requires malice. If you had no intention of getting an innocent person arrested or charged with a crime, then you were not acting with malice. Without being able to prove that you acted with malice, the prosecutor should either drop or dismiss the charges against you;
- Probable Cause – Since a charge of Malicious Prosecution requires that a person be arrested or charged with a crime, “without probable cause therefor,” proving that probable cause existed would defeat the charges against you;
Please Note: As with any crime, if you can show that there is not enough evidence for the prosecutor to prove you guilty, beyond a reasonable doubt, then the charges against you should be dropped or dismissed.
What should I do if I’ve been charged with Malicious Prosecution?
If you have been charged with any crimes, you should speak to an experienced attorney as soon as possible to discuss the circumstances and facts of your case and all possible defenses.