Assignment 1

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University of Toronto, Mississauga *

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5049

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Law

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Feb 20, 2024

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docx

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Assignment 1 The Application of Malicious Prosecution and Negligent Investigation to Private Forensic Investigators Course Code : LAW5049 Course Name : Legal Components in a Forensic Investigation Instructor : Tony Jewells Date : February 12 th , 2024

Introduction In the context of private forensic investigations, the torts of malicious prosecution and negligent investigation can have far-reaching consequences due to the unique nature of the work performed by private investigators. These concepts pertain to the actions or omissions of private investigators during their work and can result in legal liabilities if not handled with care and diligence (Mazzuca, 2010). Private forensic investigators often operate within a more ambiguous legal landscape than public law enforcement agencies, which operate under specific regulatory frameworks and oversight mechanisms. More specifically, private forensic investigators may less clearly define the boundaries between investigative activities and legal responsibilities due to the absence of standardized procedures and oversight (Andrews, 2023). The principles of malicious prosecution and negligent investigation serve as a crucial safeguard against potential abuses of power, injustice, and professional misconduct within private forensic investigations ((Mazzuca, 2010). Private investigators must understand and uphold these principles to navigate the balance between thorough investigation and adherence to legal standards, ensuring that their actions do not infringe upon the rights of individuals or compromise the integrity of legal proceedings (Andrews, 2023). In the subsequent sections, the essay will explore how these legal concepts apply to private forensic investigators and strategies to mitigate risks associated with them, accompanied by an analysis of relevant case law to illustrate their real-world implications. Malicious Prosecution

Malicious prosecution refers to the institution of legal proceedings without probable cause, with malicious intent, and without a reasonable belief in the accused's guilt. While this tort is commonly associated with public prosecutors, private investigators can also face allegations of malicious prosecution if they initiate legal actions against individuals without proper justification. For a malicious prosecution, a plaintiff must prove that the prosecution was (1) initiated by the defendant, (2) terminated in favour of the plaintiff, (3) undertaken without reasonable and probable cause, and (4) motivated by malice or a primary purpose other than that of carrying the law into effect (Spiro, 2018). For private investigators, malicious prosecution can arise when they engage in legal actions against individuals without sufficient evidence or proper justification (Malicious Prosecution, n.d.). This can lead to severe legal and reputational consequences for the investigator and their employer. For instance, imagine a scenario where a private investigator hired by a company to investigate internal theft without sufficient evidence accuses an individual of embezzlement based on hasty conclusions drawn from incomplete forensic analysis. Suppose the accused is subsequently cleared of any wrongdoing and can demonstrate that the investigator acted with malice or without probable cause. In this case, they may have grounds to pursue a claim for malicious prosecution against the private investigator. This can result in significant legal and reputational consequences for the investigator and their employer, highlighting the importance of conducting thorough and ethical investigations to avoid such claims. To protect themselves from allegations of malicious prosecution, private investigators must adhere to strigent ethical standards and procedural guidelines (Confidentiality: The Cornerstone of Private Investigation, 2023). Private investigators should prioritize comprehensive and meticulous investigative practices, given the potential legal ramifications. This entails

conducting thorough investigations, gathering substantial evidence before making accusations, and ensuring transparency. Moreover, private investigators must exercise caution when drawing conclusions or making accusations, ensuring sufficient evidence to support their claims before proceeding with legal action (Criminal Defense Private Investigator Protecting Your Rights, 2023). Additionally, maintaining detailed records of the investigative process can serve as crucial evidence in defending against potential malicious prosecution claims. These records should include documentation of all evidence collected, interviews conducted, and any other pertinent information related to the investigation (The Importance of Ethics in Our Private Investigations, n.d.). By maintaining thorough and accurate records, private investigators can demonstrate the integrity and professionalism of their investigative practices, thereby mitigating the risk of malicious prosecution claims. Negligent Investigation Negligent investigation, on the other hand, arises when a private investigator fails to exercise reasonable care and diligence in conducting their inquiries, leading to harm or damages to the involved parties. Negligent investigation encompasses negligent acts, such as inadequate evidence collection, reliance on faulty methodologies, or overlooking critical information (Crown and Government Liability – Negligent Investigation, n.d.). This tort is particularly relevant to private investigators; as mentioned, they often operate without the same level of oversight as public law enforcement agencies, making it crucial to uphold high standards of professionalism and competence in their work (Andrews, 2023). For example, suppose a private investigator fails to properly document chain of custody procedures while handling forensic evidence, resulting in contamination or loss of crucial material. If this negligence compromises

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