Malicious prosecution

“ Of course if there is no justification for it a suit for malicious prosecution and false arrest may arise; but most persons who resort to such tactics are "judgment proof" and the civil law has no terrors for them at all. At least fifty persons out of every hundred would gladly pay an unrighteous claim rather than be subjected to the humiliation of arrest, even if their confinement were of the most temporary character. ”

“ Though the principal is liable to make compensation for a libel published or a malicious prosecution instituted by his agent, he is not liable to be punished by exemplary damages for an intent in which he did not participate. ”

“ The general grounds of this action are, that the commission was falsely and maliciously sued out, that the plaintiff has been greatly damaged thereby, scandalized upon record, and put to great charges in obtaining a supersedeas to the commission; here is falsehood and malice in the defendant, and great wrong and damage done to the plaintiff thereby. Now, wherever there is an injury done to a man’s property by a false and malicious prosecution, it is most reasonable he should have an action to repair himself. ”

“ Notwithstanding what has been said in some decisions of a distinction between actions for criminal prosecutions and civil suits, both classes at the present day require substantially the same essentials. Certainly an action for instituting a civil suit requires not less for its maintenance than an action for a malicious prosecution of a criminal proceeding. ”

“ Therefore, it follows that a person who has most grievously injured another by falsely making a serious criminal accusation against him whereon a warrant has been actually issued, may escape all liability by procuring the warrant at that point to be withheld unless an action for malicious prosecution will lie. It seems to me that under such circumstances we should hold that such action will lie, if for no other reason than to satisfy that principle of law which demands an adequate remedy for every legal wrong. ”

“ But, my lords, every man before his trial is to be supposed innocent, and, therefore, no man ought to be exposed to the hazards of a trial, by which virtue and wickedness are reduced to a level. A bill like this ought to be marked out as the utmost effort of malice, as a species of cruelty never known before, and as a method of prosecution which this house has censured. ”

“ Out of malice a man prosecutes you for a crime of which he believes you to be guilty, but of which in fact you are not guilty. Here the consequences of his conduct are mischievous: for they are mischievous to you at any rate, in virtue of the shame and anxiety which you are made to suffer while the prosecution is depending: to which is to be added, in case of your being convicted, the evil of the punishment. ”

“ Civil society has deprived us of the natural right of avenging ourselves, but it has preserved to us, all the more jealously, the right of bringing the offender to justice. By the common law of England the injured party was the actual prosecutor of criminal offences, although the proceeding was in the king's name; but in felonies, which involved a forfeiture to the crown of the criminal's property, it was also the duty of the crown officers to superintend the prosecution. ”

“ Simply to charge, for example, the prosecution with the knowing use of perjured testimony in a case is not to imply in the slightest any complicity by the judge in such actions. To charge that the Government makes overmuch use of the conspiracy form of criminal prosecution, and this to bolster weak cases, is not to suggest any unseemly complicity by the judiciary in the practice. ”

“ But, my lords, we have in the present case no provocations from crimes either openly avowed, or evidently proved; and certainly no incitement from necessity to exert the power of the house in any extraordinary method of prosecution. We may punish whenever we can convict, and convict whenever we can obtain evidence; let us not, therefore, condemn any man unheard, nor punish any man uncondemned. ”

“ Considering therefore, how easily frivolous and unjust Prosecutions are set on foot, and Evidences fit for any Turn may be procur'd, nothing can be a greater Security than this noble Law ; for after all the Arts and Management betwixt a bad Governor, Judge, and Attorney-General, to carry on an illegal Prosecution, the whole Contrivance is at last spoiled by the Impossibility of Packing a Jury for the Purpose. ”

“ It is well established that a [n] [obstruction-of-justice] offense is complete when one corruptly endeavors to obstruct or impede the due administration of justice; the prosecution need not prove that the due administration of justice was actually obstructed or impeded. ”

“ A criminal prosecution may fail by the absence of a witness, or by reason of a flaw in the indictment, or some irregularity in the proceedings; and, in such cases, even in England, the proceeding to strike from the roll may be had. But other causes may operate to shield a gross offender from a conviction of crime, however clear and notorious his guilt may be,-a prevailing popular excitement; powerful influences brought to bear on the public mind, or on the mind of the jury ”

“ Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. ”

“ To entitle a private party to prosecute, he must have an interest, not remote or feeble, but immediate and powerful in the cause; the wrongs alleged must be wrongs done to the person, and “of a high and aggravated kind, such as may naturally excite strong feelings of anguish and resentment in the minds of the kindred of the sufferer;” an oath of calumny must be taken by the prosecutor, if required by the party accused; caution must be found to insist in the prosecution ”

“ In many cases the accused persons, in order to avoid the indignity of a public trial, bought off their accusers, who found in this a fruitful source of revenue. Certain legal remedies, intended to prevent the abuses of the system, undoubtedly existed. Persons found guilty of bringing false charges, of blackmail, or of suborning false witnesses, were liable to criminal prosecution by the state and a fine on conviction. Penalties were also inflicted if an accuser failed to carry the prosecution through or to obtain a fifth part of the votes. ”

“ Guilt by association is a danger in any conspiracy prosecution. Its consequences are more serious when a substantive crime is also charged. But when the magic words 'counseling' or 'inducing' are injected to 'define' the substantive crimes, the danger and its consequences reach a new high. It is hard to assess the effect of a trial judge's charge upon a jury's unsophisticated belief in defendants' bad conduct. ”

“ Your pamphlet merely attacks the technical authority of one of the attorneys for the prosecution, incidentally abusing two judges. This is not the course of an innocent man. It is the course of a guilty man who desires to divert the attention of the tribunal of public opinion. The tradition is here fulfilled of the attorney’s instructions to the barrister acting for his guilty client, ‘No case; abuse the opposing counsel.’ I am compelled now to assume that you have no case, because all that your expensive pamphlet does is to abuse one of the counsel for the prosecution. ”

“ Despite the impact upon the inviolability of the human personality, and upon our belief in an adversary system of criminal justice in which the Government must produce the evidence against an accused through its own independent labors, the prosecution is allowed to obtain and use evidence offered by the accused 'in the unfettered exercise of his own will,' Malloy v. ”

“ Malice in fact, is that kind of malice which is to be proved. When malice may be, and is inferred, from the want of probable cause, it is actual malice which is thus proved.
There is no theoretical malice which can satisfy this rule, and which can coexist with the established fact, that the prosecution was instituted in an honest belief of the plaintiff’s guilt, and with no other motives than to bring a supposed offender to justice. ”

“ On prosecutions for treason or felony the court may order the accused person, if convicted, to pay the costs of his prosecution (Forfeiture Act 1870) ; and the like power exists as to persons convicted of offences indictable under the Criminal Law Amendment Act 1885 (see § 18) , and as to persons convicted on indictment of assault, corrupt practices at elections, offences against the Merchandise Marks Acts, or of defamatory libel, if they have unsuccessfully pleaded jurisdiction. ”

“ Thugs were to invade court-rooms while trials were going on, to intimidate “System”-threatening prosecutors and witnesses; men were to be trapped as they offered bribes to trial jurors; agents of the Prosecution were to be bribed to turn over to the defending element the Prosecution’s papers and reports. ”

“ First, one might just as well argue that the Constitution requires absolute immunity from prosecution wherever the Government has obtained an inadmissible confession or other evidence through an illegal search and seizure, an illegal wiretap, illegal detention, and coercion. A coerced confession is as revealing of leads as testimony given in exchange for immunity and indeed is excluded in part because it is compelled incrimination in violation of the privilege. ”

“ To-day, the grand jury, initiating a proceeding against a citizen who may be ignorant that he is even under suspicion, may be led to accuse him of some foul crime upon the mere ex parte statement of malicious witnesses, without giving him an opportunity to explain or contradict the evidence. The mere charge of crime is often enough to ruin a man forever. The argument that a suspected person may escape before arrest unless the charge is considered secretly, has in these days of telegraphs, railroads and extradition treaties little of the force which it may have carried with it in cruder times. ”

“ That punishments disproportioned in their severity to the magnitude of the offence often defeated their object was certain. Not only had jurymen been known to confess that they had preferred violating their oaths to doing still greater violence to their consciences, by sending a man to the gallows for a deed which, in their opinion, did not deserve it, but the very persons who had been injured by thefts or forgeries were often deterred from prosecution of the guilty by the knowledge that the forfeiture of their lives must follow their conviction. ”

“ The burden of proof for establishing the guilt of suspects and accused persons is on the prosecution, and any doubt should benefit the suspect or accused person. The presumption of innocence would be infringed if the burden of proof were shifted from the prosecution to the defence, without prejudice to any ex officio fact-finding powers of the court, to the independence of the judiciary when assessing the guilt of the suspect or accused person, and to the use of presumptions of fact or law concerning the criminal liability of a suspect or accused person. ”

“ Just as, in today's case, proof of drunken driving or of crossing the median strip invalidates the second prosecution even though they are not elements of the homicide and assault offenses of which respondent is charged; so also, in the hypotheticals given, proof of the substantive offense will invalidate the conspiracy prosecution and proof of the burglary the murder prosecution. ”

“ Such prosecutions are appropriate to reach a combination united to accomplish defined criminal purposes; the concept of conspiracy is not an invitation to circumvent the safeguards in the prosecution of crime which are the special boast of our democratic society by making it a device to establish guilt, not on the basis of personal responsibility, but by association, and we should be at pains to forestall the implication that we have so extended it. My brother JACKSON has impressively shown the grave dangers of abuse to which conspiracy charges so readily lend themselves. ”

“ Against the consequences of their erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies they must, in such cases, resort. But for malice or corruption in their action whilst exercising their judicial functions within the general scope of their jurisdiction, the judges of these courts can only be reached by public prosecution in the form of impeachment, or in such other form as may be specially prescribed. ”

“ The court would, therefore, hesitate to take any summary action against the offender which might remove the inducements the injured party would otherwise have for proceeding criminally against him, and thus interfere with the course of justice. In this country, the prosecution of criminal offences is generally committed to the charge of a public officer, and sufficient emolument is attached to the duty of prosecution to secure its faithful performance. The same reason, therefore, does not exist here, as in England, for leaving it to the injured party to prosecute for the criminal offence. ”

“ Justice Best says, "malice is the gist of this prosecution. Malice in law relative to libel means legal malice." Whatever your opinion may be as regards the contents of the books; however much you may condemn the filthy and immoral allusions in different parts of this pamphlet, still you would not be justified in finding a verdict of guilty, unless you are clearly of opinion that the manner of the publication and circulation does not rebut the inference of malice. ”

“ Prosecution under R.S. § 102 is thus limited to a range far narrower than is a proceeding for contempt, either in court or at the bar of Congress. And even under the notoriously broad contempt power, punishment is justifiable only when a person has failed to comply with an order specifying precisely what he must do, and when he has power himself to do what is ordered. [1] Certainly no less precise standard should be established in prosecutions for violation of a criminal statute. ”