Request for Question Clarification by
weisstho-ga
on
20 Jan 2006 13:27 PST
The cause of action that you should consider is "malicious
prosecution." The elements may vary state by state, but in a nutshell
and as a general rule, are:
(1) that the defendant has initiated a criminal prosecution,
(2) that the criminal proceedings terminated in his favor,
(3) that the private person who instituted or maintained the
prosecution lacked probable cause for his actions, and
(4) that the action was undertaken with malice or a purpose in
instituting the criminal claim other than bringing the offender to
justice.
There is also a cause of action called "abuse of process" where you
would be required to demonstrate:
(1) an ulterior purpose, and
(2) an act in the use of process that is improper in the regular
prosecution of the proceeding.
Such a claim addresses whether the defendant used a proper procedure
for a purpose other than that intended. An abuse of process claim
cannot be established by bad motive alone; it requires proof of an
"ulterior purpose" through "some corroborating act.
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Nevertheless, the criminal act is separate and apart from paying the
value of the property. That would happen either:
(1) as an action for restitution after the criminal case had been
decided - and subject to a separate hearing at which your son can
present evidence, or
(2) as a separate civil action, and still, your son can present evidence.
Keep good records of names, dates and places of who said what to whom.
