28 Feb Virginia: Special Cases – a Lawyer’s Prosecution
By unpublished Order entered February 2, 2017, the Virginia Supreme Court reversed and remanded for new trial the Southampton County Circuit Court’s dismissal of a malicious prosecution action in the special case of Robinson v. Copeland, Record No. 151806, * 1, 8. Despite acknowledging “reasonable conflicts” in the parties’ respective factual testimony, the trial judge nonetheless erroneously resolved the reasonable doubt in favor of the Defendant instead of Plantiff, misconstruing Massie v. Firmstone,134 Va. 450, 462 (1922). Id. at 7.
“An action for malicious prosecution requires proof of four elements: the prosecution was (1) malicious, (2) instituted by or with the cooperation of the defendant, (3) without probable cause, and (4) terminated in a manner not unfavorable to the plaintiff.” Id. at 5 (internal quotations omitted). “[I]n the context of a malicious prosecution action, probable cause is defined as ‘knowledge of such facts and circumstances to raise the belief in a reasonable mind, acting on those facts and circumstances, that the plaintiff is guilty of the crime of which he is suspected’.” Id. (italics original)
“The existence of probable cause is determined at the time the defendant took the action initiating the criminal charges. Additionally, the issuance of a criminal warrant does not establish the existence of probable cause as a matter of law.” Id. at 6. “[W]hether probable cause is proven will depend upon whether the circumstances disclosed by the evidence were such as to justify an ordinarily prudent person in acting as [defendant] acted here.” Id.