The Court of Appeals has published its minutes for January 18th, 2008, here.

One interesting published case involving a malicious prosecution case. In Craycroft v. Pippin, the Court of Appeals ruled that a prior finding of probable cause by a criminal court is not determinative of that issue in a case of malicious prosecution. Instead the court found this finding to create a “rebuttable presumption” that probable cause existed. The court overturned the summary judgment and remanded the case back to the circuit court to determine whether “other” evidence existed that would rebut the finding of probable cause.

In reaching its decision, the court relied on a law review article and a case from 1902. It tried to compare an indictment by the grand jury, which creates a rebuttable presumption, to the current one, which involved a court ruling AFTER evidence was presented at a preliminary hearing. Perhaps the worst part of this opinion is the fact that at the probable cause hearing the facts were undisputed, which made this a question of law for the court to decide. The court of appeals remanded the case back to the circuit court to determine if other evidence existed that would show the lack of probable cause.

Of course, the plaintiff had the option of showing this evidence to the district court in the original probable cause hearing, which he failed to do. He now gets two bites of the same apple. Worse yet, you have one court essentially reviewing a decision of another court and reviewing additional evidence that should have been presented at the first hearing (if it existed). There is something called issue preclusion (Res Judicata), which is specifically created to prohibit exactly the type of gerrymandering sought by the court of appeals.