Blog: Law

Malicious Prosecution (False Charges)

(Note: This page discusses the crimes and torts in general. Laws vary by location. These wordings are the terms in which the crime/tort is considered, though.)

Making a false accusation is actionable as "Malicious Prosecution," which is a tort, not a crime, for some reason. It cannot lead to arrest, merely to civil court where a complainant can try to get money for damages.

"Malicious Prosecution" (tort) is made against whoever "initiated" the original false charges. Usually this is police because they usually initiate charges. It is available for private prosecution, too, though.

To make this tort, the complainant has to show:

  1. There was manifestly no reason for the initial charge (they knew the charges were false or they knew there was no reason to believe the charges were true)

  2. There was malice / wrongful purpose in the decision to launch the initial false charge

(ie if a person is falsely charged but is found innocent, that is not enough to "prove" "malicious prosecution." You need more.)

Often, this charge is used when the initial false charge is made. This makes a court less likely to find guilt in the initial charge or could cause the initial complainant to drop their charges.

A weird thing is that apparently if the initial false charge succeeds you can't counter sue for making the false charge, it seems. You can't file the lawsuit in civil court until the initial charge is resolved in criminal court, it seems.

Also, "malicious prosecution" will likely fail against an official like the DA (county prosecutor in many cases) because you have to prove somehow they had malicious intent, and they are also often entitled to immunity even when its proved after a person has been convicted that they were actually innocent.

Another recourse is "Libel/Slander"

Many places, accusing someone of a crime falsely is considered "defamatory per se" or "actionable per se." That means that if someone accuses you falsely of a crime, the public authority considers that "harm is taken as a given" to you, and that your reputation is presumed to have been harmed.

How much liability a person has when they slander/libel another person varies by location. They might be liable for any damages that stemmed from their statements, including money lost as a result of problems/loss of work and inability to secure new work, harm to reputation, as well as less concrete damages such as embarrassment, mental anguish, humiliation.

Another recourse is "Blackmail" if the person made the false accusations after trying to blackmail someone else.

"Blackmail" is a crime and the charge leads to arrest. It's often a "Felony." In some places it is its own charge, in other places it is considered a form of "extortion or coercion."

In "Blackmail," the blackmailer has information (the information can be true or a lie, it makes no difference) that can damage the other party, and the blackmailer uses threats to cause the other party to do something they want them to do (something illegal or legal, it makes no difference). The central element of "Blackmail" is that the blackmailer's intent to get money or something else of value from the other party.

The threat made by the blackmailer to release information can include: to accuse someone falsely of a crime; to report someone's involvement in a crime; to reveal private or sensitive information about someone that will cause them embarrassment or financial harm.


Tenth Man Rule

A lot of people's ears perked up when they heard this idea spoken of in the lines of Max Brooks' "World War Z" and, struck with the sense of it, they wondered if this was actually something Israeli authorities did, or if it was an invention for the book.

Robert J. Joustra wrote on The Center for Public Justice website that it is true, sort of. He pointed out that more minds don't always make better decisions: "Following the recommendation of the Agranat Commission in 1973-1974, Military Intelligence established a Control Unit that was expected to play this role of the devil’s advocate. Its responsibility was to produce a range of explanations and assessments of events that avoided relying on a single concept, as happened in 1973." The idea and role exists, but Brooks modified it out of his own mind, it looks like, carving the idea into "The Tenth Man."

Joustra quotes Irving Janis as he writes about this valuable role in groups, which Joustra terms "loyal opposition."

Janis: “The more amiability and esprit de corps among the members of a policy-making in-group, the greater is the danger that independent critical thinking will be replaced by group think, which is likely to result in irrational and dehumanizing actions directed against out-groups.”

The Yom Kippur war was a surprise to Israel and therefore a striking failure of the authorities' intelligence forces (the section responsible for this was the Research Department called "Aman"). I don't have any source for this, but one commenter on a discussion on Stack specified that there's a unit within the IDF called "Ipha mistabra" whose purpose is to doubt everything and come out with alternative theories to every regular theory the intel section has.

There is precedent for this strain of thought in Jewish history. The Sanhedrin was opposed to killing even criminals as an act of "punishment," and it happened very rarely. Among other failsafe's against wrongful conviction, there was a rule that the if the assembled judges came to a unanimous guilty verdict, the accused would be freed. The reason was that if none of the judges could find anything exculpatory about the accused, there had to be something wrong with the court.

The Vatican also has something similar, but for a sort of opposite purpose. It is a failsafe against electing saints popularly instead of on merit. This was the "Devil's Advocate" role given to one of the panel during canonization of a new saint. Their job is to find flaws in the person's character and their required miracles during the process of review.

However, even when the stakes are high, a dissenting voice might not mean anything. In the Yom Kippur war itself, the Israeli's, comfortable and confident after repeated illustrations of their military superiority and their neighbours making threats of invasion and not following through on them, found themselves on October 6, 1973 facing 1400 Syrian tanks and 1000 artillery with a rushed-into-place reserve force bringing their number up to 177 tanks and 55 artillery, and the Syrians rapidly shot towards Israel's northern settlements before being stopped, and in the south Egypt crossed the Suez Cannal and destroyed tons of Israeli tanks and aircraft with their new Soviet weapons; All this happened despite 6 months of evidence of a war buildup, doubts among two of the 3 top Israeli army chiefs, and two serious warnings from one of Aman's (Israeli's intelligence service mentioned above) - but just one - researchers, which warnings were both ignored by his senior officer, and even when photos showed the unprecedented military buildup on both borders and Jordan's King Hussein called the Israeli PM to warn him, Israel did almost nothing to prepare. They didn't think it would happen; they already believed something else.


If the king violates a free man's dwelling, all will seek out the king to kill him.

From the ancient laws of Norway


First, do no harm.