In Mississippi, the elements of malicious prosecution are: (1) the institution of a criminal proceeding; (2) by, or at the insistence of the defendant; (3) the termination of such proceedings in the plaintiff’s favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceedings; and (6) the suffering of injury or damage as a result of the prosecution. McClinton v. Delta Pride Catfish, Inc., 792 So. 2d 968, 973 (Miss. 2001). The plaintiff bears the burden of proving each ofthese elements by a preponderance of the evidence.

Of particular importance is the probable cause determination.  The court will analyze the facts reasonably available to the defendant at the time they initiated the malicious prosecution.  Probable cause requires both a subjective element– an honest belief in the guilt of the person accused, and an objective element–reasonable grounds for that belief.  The ultimate consideration by the court is whether the criminal complainant had probable cause to file the criminal complaint. Probable cause analysis is explained in The Law of Torts:  “The existence of probable cause , which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court.  That is to say, the court will determine whether upon the appearances presented to the defendant, a reasonable person would have instituted the proceeding”.  W. Prosser & Keeton.  The Law of Torts § 119 (5th Ed. 1984)