An unjustified criminal charge can be devastating to an innocent person. Even when criminal
proceedings absolve a guiltless person, the stigma attached with detention and accusations of
criminal activity can lead to significant economic and non economic losses. Job opportunities
are foreclosed. Anxiety, depression and humiliation often follow. This blog
explores two of the tort remedies available to the falsely accused in the civil justice
The elements of malicious prosecution are: (1) a criminal case was brought against the
plaintiff; (2) the criminal case was brought as a result of oral or written statements made by the
defendant; (3) the criminal case ended in the favor of the plaintiff; (4) the defendant’s
statements against the plaintiff were made without probable cause; and (5) the defendant’s
statements were motivated by malice toward the plaintiff. CJI 4th, Civil, 17:1.
of malicious prosecution pose a significant burden to the Plaintiff. As the elements note, the
criminal case must be resolved in the favor of the Plaintiff. This means that the case must be
dismissed or the plaintiff must be acquitted. Even if the plaintiff is actually innocent, the
claim will not succeed if the plaintiff is found guilty at trial. Additionally, the claim must
be made without probable cause. Probable cause means that the reporter of the crime must have
a good faith and reasonable belief that the Plaintiff was guilty of the offense. It is not
enough that the plaintiff is innocent. It must be apparent to a reasonable person that the
plaintiff is not guilty of the offense. Finally, it should be noted that prosecuting attorneys
generally cannot be held liable for malicious prosecution. See, e.g., McDonald v. Lakewood
Country Club, 461 P.2d 437 (Colo. 1969).
False imprisonment is a tort separate from
malicious prosecution. The elements of false imprisonment are: (1) the defendant intended to
restrict the plaintiff’s freedom of movement; (2) the defendant, directly or indirectly,
restricted the plaintiff’s freedom of movement; and (3) the plaintiff was aware that his or
her movement was restricted. False imprisonment is viable tort in a number of
circumstances. One such circumstance is when an individual levels a false allegation against
another leading to an arrest and detention. The defendant must directly or indirectly restrict
the plaintiff’s freedom of movement. Accordingly, even if the falsely accused has been
detained by the police, the reporting party can be held liable for indirectly restricting the
plaintiff’s freedom of movement.
There are several notable affirmative defenses to false
imprisonment. Most of the affirmative defenses revolve around the rights of police officers
and business owners to arrest or detain individuals suspected of committing a crime. Generally,
police officers and shopkeepers have the right to detain individuals that they reasonably believe
have committed a crime. Note that a plaintiff can sue the police for false imprisonment.
However, the police have a privilege to arrest individuals without a warrant. If the police
officer believed and had probable cause to believe that the accused had committed a criminal
offense, that officer cannot be held liable for false arrest.
False and unjust criminal
charges can result in devastating losses. Seeking compensation for these losses in the civil justice
arena is complicated and requires competent legal representation. If you or somebody you know
have been falsely accused of a criminal act, contact the attorneys at Bell & Pollock today.
If you or a loved one has been injured, call the law firm of Bell &
Pollock, P.C., 303-795-5900 or www.bellpollock.com and
Denver Injury Attorneys, Champions of the People. You can access all
of our free podcasts on our website, just click on "Bell & Pollock
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