The Difference between Malicious Prosecution and Abuse of Process


A plaintiff can sue for malicious prosecution when a defendant “maliciously” prosecutes a criminal or uses a civil proceeding against the plaintiff when the defendant knows they don’t have a case.

Abuse of process occurs when a plaintiff sues a defendant for wrong accusation or a previous case where the defendant tried to use the legal system against the plaintiff in a manner for which legal system is not intended.

The Essential Elements of Malicious Prosecution

A successful malicious prosecution claim requires the following:

  • Beginning or continuing a criminal or civil legal proceeding
  • Believing in the allegations of the proceeding without any reasonable grounds
  • Getting to a judgment in the proceeding without a purpose
  • Termination of the proceeding in favor of the person being prosecuted or sued

An example of malicious prosecution is when the police brutalize an individual and then, in an effort to cover up their own criminality, charge that individual with resisting arrest or assaulting a police officer although no such activity ever took place.

The Essential Elements of Abuse of Process

In the case of abuse of process, a plaintiff can sue for abuse of process when a defendant starts the legal process. The most important element of abuse of process is that:

  • A plaintiff shows an improper and unnecessary purpose
  • The defendant uses the legal system to extort, force or create an illegal effect through the use of an otherwise legal process.

For example, when a defendant’s lawsuit is legitimate but a certain aspect of the lawsuit is not, the plaintiff can still sue for abuse of process.
If you believe that you or a loved one has been maliciously prosecuted, please call the Law Offices of Joel Silberman for a free consultation. We have the knowledge, skills and experience to help you. Call 201-420-1913 or email

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