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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Personal Injury Law
Satisfied Customers: 118798
Experience:  Licensed Attorney. Over 20 years experience in personal injury and law enforcement.
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A malicious prosecution claim, does probable cause criminal

Customer Question

For purpose a malicious prosecution claim , does probable cause for a criminal offense exist when the defendant (in the criminal charge) is known to simultaneously satisfy the requirement of the statute, but also the requirements of an affirmative defense when the affirmative defense is codified in the statute itself.
Example Statute:
XX:YY Hats
1. No person shall wear a tall hat over 6 inches tall.
2. It is an affirmative defense to prosecution under this section that the hat being worn was red in color.
A guy sees a man wearing a tall he knows both that it is tall, and also knows that it is red, but chooses to sign a criminal charge against the person anyways for wearing the tall red hat.
Could a claim for malicious prosecution stand if it is required that the criminal complaint lack probable cause.
Submitted: 2 years ago.
Category: Personal Injury Law
Expert:  Law Educator, Esq. replied 2 years ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

In NJ, an action for malicious prosecution cannot not be maintained for prosecuting a civil suit unless the defendant in that suit was ‘arrested without cause and deprived of his/her liberty or made to suffer other special grievance different from and superadded to the ordinary expense of a defense.’” This rule has never been changed or criticized and it still represents the law of NJ, despite the case law being old. See: Bitz v. Meyer, 40 N.J.L. 252 (Sup. Ct. 1878); Schneider v. Mueller, 132 N.J.L. 163 (E. & A. 1944).

So, if you are pursued without probable cause and you are charged without such probable cause and the party bringing the charge knew that there was no probable cause when making the charges, the claim for malicious prosecution can be brought.

Customer: replied 2 years ago.

The core of this question revolves around weather or not probable cause exists when the person signing the criminal complaint knows that the affirmative defense is satisfied (which would prevent any finding of guilt)

Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your reply.

If the person knows there was no probable cause when they made the complaint, as I said above, that would be the basis for malicious prosecution. That is what I said above and what the case law says as well.