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.

The fourth element, “Malice” refers to a prosecution initiated primarily for a purpose other than bringing the accused to justice.  It refers to a criminal complainant’s objective in instituting the criminal proceedings, not his or her mindset.  This element may be be proven by circumstantial evidence rather than direct evidence.  The jury may infer malice from the facts of the case.  Malice may also be inferred from the fact that a criminal complainant/defendant in the civil lawsuit may have acted with reckless disregard for the Plaintiff’s rights.