Civil Forfeiture in Criminal Cases

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What is Civil Forfeiture?

Devised to combat organized crime and large scale drug trafficking, forfeiture laws allow the government to take the property of criminals. Criminal forfeiture laws allow the seizure of property only after a conviction beyond a reasonable doubt. Civil forfeiture laws allow the government to gain possession of a person's property without any determination of guilt.

Instead, these civil proceedings are guided by the lesser "clear and convincing" standard of proof, rather than using the "beyond a reasonable doubt" standard employed in criminal proceedings.  Although civil forfeiture is supposed to be an aspect of civil law, laws dealing with private wrongs between private parties, there is no law excluding the state from being a party in the civil law system. Since civil forfeiture lacks the constitutional protections of its criminal law counterpart, almost all police action for seizure of private property in criminal law is civil forfeiture.

Even if I am Not Implicated in a Crime, Can Civil Forfeiture Be Used against Me?

Under the idea that the property is itself guilty by association, police may take your property without convicting or arresting you, putting the burden on you to prove that property was not associated with a criminal enterprise. The property seized does not have to belong to the criminal to be seized. This can occur because civil forfeiture is a lawsuit against property, not the person, so legal action has less to do with a person's guilt, and more to do with property's use as an instrumentality in a crime. If the property has been used in association with or to aid criminal acts, the property is subject to civil forfeiture proceedings.

How Do These Proceedings Work?

Unlike other court proceedings, victims of asset seizure under forfeiture laws have to prove their own innocence, and have a very short time, usually 10 days, to initiate proceedings to prove their innocence.

What Kind of Property Can Be Seized Under Civil Forfeiture?

Unfortunately, almost any kind of property can be seized by the police under this property. The most common types of property seized are vehicles, cell phones, jewelry and cash.

For Which Crimes Is Civil Forfeiture Most Often Invoked?

Civil forfeiture is most common in drug cases. However, the use of civil forfeiture has expanded dramatically over the past few decades. Civil forfeiture is now being used against crimes ranging from prostitution to shoplifting.

What Happens To My Property If I Lose the Proceedings?

This is the most controversial aspect of civil forfeiture. In most cases, the property is sold and the funds generated from the sales are kept by the police department and/or the district attorney’s office.

Should I Consult a Defense Attorney if My Property Has Been Seized?

Because of the complicated nature of this area of law, the advice of a criminal defense attorney can be helpful in these cases. Additionally, this is a special area of law and it is advisable that one finds an attorney with specific experience in these proceedings for the most favorable outcome.

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Last Modified: 08-22-2012 02:39 PM PDT

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