Q: Is it malicious prosecution if investigator lacking probable cause changes how a PO was violated?
Investigator twice omitted exculpatory evidence in affidavit to claim defendant's sole purpose being at the court house was to follow victim so a misdemeanor vpo could turn into felony stalking. The state first alleged attempting to make contact with minor child that's apart of a no contact order. Complaining witness (the mother) report only states defendant called out child's name to come to him. The stalking charge accuses following the mother but fails to mention we were both there for family court hearing. Investigator also uses a past report made by mother being followed at courthouse and clerks confirming seeing defendant but it was ommitted the clerks also stating they see the defendant often filing court papers and pro se drawer. Plus the surveillance video of recent allegation shows defendant going opposite direction on an escalator. All the evidence investigator claimed to have never surfaced at discovery. A prosecutor finally dismissed charge for insufficient evidence.
A: Your question concerns the filing of a civil case under tort law seeking damages from the investigator. In order to be able to be successful in court when alleging malicious prosecution, you must prove four elements. these are as follows: (1) that the original case was terminated in favor of the plaintiff, (2) that the defendant played an active role in the original case, (3) that the defendant did not have probable cause or reasonable grounds to support the original case, and (4) that the defendant initiated or continued the initial case with an improper purpose. In order to be able to advise you properly, you would need to see an attorney in person as there are a lot of facts that need to be obtained in order for that attorney to properly advise you if you have a case. There are time limitations involved after a criminal case has been dismissed against you in order to file malicious prosecution actions so please consult one immediately.
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