This is the Cato Daily Podcast for Monday, February 26, 2024. I'm Caleb Brown.

We know that malicious prosecutions happen and the people wrongfully

charged ought to have some recourse. So what are the circumstances under which

you might challenge a malicious prosecution? The case now pending before the

US Supreme Court takes up that question.

Cato's Tommy Berry explains why it matters.

The right to challenge malicious prosecutions fundamentally comes from the Fourth Amendment,

which says no warrant shall issue except for a probable

cause.

And that probable cause standard doesn't mean that if they win, that they need to eventually

prosecute and convict you for it to have been a valid arrest warrant, but it means

that they have to have had some good reason. They can't just make things up. And going back to

early days of the United States and even before the United States in England,

if a police officer just completely made something up or a prosecutor completely made something

up and use that lie to arrest you, you could essentially sue them just like you could sue any private

citizen for kidnapping you because the notion was they were acting outside of legal justification

when they made that arrest.

In challenging a malicious prosecution,

is it the same as asserting a malicious prosecution

or is it, we know it's a malicious prosecution and now I'm going to get my day in court over it.

It hasn't been proven yet like any lawsuit you you assert a malicious prosecution and then it goes to the courts and the court has to decide it has to look at okay

what did the police officer and the prosecutor know at the time were they bringing this in good

...