A claim for malicious prosecution of a civil claim (lawsuit) is a lawsuit filed by a person or entity who was previously wrongfully sued in a civil lawsuit. The elements of a claim for malicious prosecution vary from state to state, but the plaintiff generally must prove: (1) the institution or continuation of civil proceedings (a lawsuit) against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceeding in plaintiff's favor; and (6) special damages.

A claim for malicious prosecution of a criminal prosecution or case is similarly a tort claim or cause of action that requires the plaintiff to prove: (1) the initiation or continuation of a criminal prosecution; (2) lack of probable cause for the criminal prosecution; (3) the criminal prosecution was motivated by malice; and (4) the criminal prosecution was terminated by dismissal of the case or charges or a finding of not guilty by the jury or judge.

In Oregon, a claim for malicious prosecution, whether for a civil or criminal case, is recognized as a tort action. For a civil claim, the plaintiff must establish that a prior civil lawsuit was initiated or continued against them without probable cause and with malice, and that the lawsuit ended in their favor, typically through a dismissal or judgment. Additionally, the plaintiff must demonstrate that they suffered special damages as a result of the wrongful lawsuit. For a criminal malicious prosecution claim, the plaintiff must prove that a criminal prosecution was initiated or continued without probable cause, with malice, and that the prosecution ended in a manner indicative of their innocence, such as a dismissal or acquittal. In both civil and criminal malicious prosecution claims, the burden is on the plaintiff to prove all elements of the tort, and failure to establish any one element can result in the dismissal of the claim.