Removing the Malice from Federal 'Malicious Prosecution': What Cognitive Science Can Teach Lawyers About Reform

44 Pages Posted: 23 Oct 2014 Last revised: 14 Aug 2015


Section 1983 (“§ 1983”), Title 42 of the U.S. Code empowers individuals suffering civil rights abuses at the hands of state actors to seek recourse in federal court. The statute was enacted in response to southern states’ failure to control the Ku Klux Klan. Since 1961, it has increasingly become a vehicle for federal reform of unconstitutional state and local government practices. Nationwide, state criminal justice systems cry out for such ex post reform, as they continue to generate wrongful convictions at unacceptable rates with no notable preventative measures in place.

“Malicious prosecution” claims brought under § 1983 are a common mechanism for redressing state-driven wrongful convictions, but this Article asserts that they are not meeting their full reform potential. A plurality of federal courts erroneously requires plaintiffs to prove malice in support of such claims. While superficially the requirement comports with the “malicious” prosecution nomenclature, the nomenclature itself is misleading. Federal malicious prosecution claims are based on the Fourth Amendment, the purpose of which is to hold state defendants accountable for objectively unreasonable acts — not intentional, or malicious, ones.

In abandoning the Fourth Amendment’s purpose, the offending courts have also ignored the real causes of wrongful convictions, and therefore have failed to further true reform. Research shows that the vast majority of wrongful convictions are driven not by malice but by cognitive biases — mental processes that filter information subjectively, causing inaccurate perceptions and objectively unreasonable decisionmaking. Although unintentional and often unconscious, cognitive biases may be ameliorated through education, exposure to divergent views, and reform of systemic factors that trigger and exacerbate bias. Reframing § 1983 relief for wrongful conviction as a question of objective unreasonableness rather than malice would tie liability more closely to: (1) nonmalicious cognitive errors that frequently taint state actors’ decisions during criminal proceedings; and (2) states’ failure to implement cognitive error-neutralizing practices. This change to the legal standard, accompanied by close consideration of cognitive science, has the potential to enhance plaintiffs’ access to compensation and to require state reform of the true systemic causes of many wrongful convictions.

Suggested Citation

Yakren, Sofia, Removing the Malice from Federal 'Malicious Prosecution': What Cognitive Science Can Teach Lawyers About Reform. 50 Harv. C.R.-C.L. L. Rev. 359 (2015), Available at SSRN:

Sofia Yakren (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

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