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 South Dakota, a claim for malicious prosecution of a civil claim requires the plaintiff to establish several elements to succeed. These elements include the initiation or continuation of a civil lawsuit against the plaintiff, instigated by the defendant, with malice, and without probable cause. Additionally, the plaintiff must show that the prior proceeding ended in their favor and that they suffered special damages as a result. For a claim of malicious prosecution of a criminal case, the plaintiff must prove the initiation or continuation of a criminal prosecution against them, the absence of probable cause for such prosecution, that it was driven by malice, and that it ended in a dismissal or a not guilty verdict. These claims are designed to provide a remedy for individuals who have been wrongfully subjected to legal action, whether civil or criminal, due to another's malicious intent and without a legitimate basis.