4 ms·

But shouldn't the burden of proof rest on the government?

rayiner 11y ago
It should be, and it is (at least under federal law): https://www.law.cornell.edu/uscode/text/18/983 https://www.law.cornell.edu/uscode/text/18/983 ("the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture"). What I think causes confusion is the "innocent owner defense" where the burden is on the owner to prove that, notwithstanding that the property may be subject to forfeiture because it is illegal proceeds, the owner came by the property legitimately.
- Spooky23 11y ago
  That's a low standard for the government to meet. "Preponderance of the evidence" means that the government doesn't need to prove the property is subject to forfeiture, just show that 50% of the evidence indicates that it could be. (guy in car from out of state at night, guy fits the profile of something, road is a "drug corridor", guy had alot of cash, guy was speeding) It's hard to convict you of a crime for driving around with a envelope stuffed with a lot of cash. But's it's easy to demonstrate reasons why the cash may be used for nefarious purposes.
  - rayiner 11y ago
    It's the standard civil burden of proof. If I say I own Blackacre and you say you own it, I just have to present enough evidence to get over the 50% mark.
    - jbooth 11y ago
      I think the point here is that a civil burden of proof is completely inappropriate when the plaintiff is the state and there's an allegation of criminality.
      - dragonwriter 11y ago
        That's not necessarily a bad argument, but the theoretical basis of the criminal burden of proof is that the kind of consequences resulting from criminal conviction are different than mere property (which is routinely at issue in civil cases). So, the principle on which the existing distinction is based really doesn't support it being applied to forfeiture actions. And, while there might be a good argument for changing the principle underlying the distinction, I don't see a clear reason for applying specifically the beyond a reasonable doubt standard to forfeiture (or even a higher standard that would apply in any other civil claim.)
    - Spooky23 11y ago
      If you're being sued to turn over The property I would say no problem... but you're not, it's being confiscated
  - dragonwriter 11y ago
    > That's a low standard for the government to meet. "Preponderance of the evidence" means that the government doesn't need to prove the property is subject to forfeiture, just show that 50% of the evidence indicates that it could be. Preponderance of the evidence is the standard burden of proof for civil cases, whatever actors are involved -- the side the wins is the side that proves that its position is most likely to be correct. The higher (beyond a reasonable doubt) burden of proof in criminal cases exists as a safeguard because of the greater consequences to liberty of a criminal conviction. Its the same standard used when pretty much anyone wants to use the legal system to take your money or other property via a lawsuit, so I don't think its that outrageous that it is used for civil forfeiture cases.
    - jbooth 11y ago
      If we were talking about a contract dispute where one of the parties is a city, state or the federal government, you're totally right. If we're talking about the police alleging that you have money because of criminal acts, we should switch to the criminal standard.

It should be, and it is (at least under federal law): https://www.law.cornell.edu/uscode/text/18/983 https://www.law.cornell.edu/uscode/text/18/983 ("the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture"). What I think causes confusion is the "innocent owner defense" where the burden is on the owner to prove that, notwithstanding that the property may be subject to forfeiture because it is illegal proceeds, the owner came by the property legitimately.

Spooky23 11y ago
That's a low standard for the government to meet. "Preponderance of the evidence" means that the government doesn't need to prove the property is subject to forfeiture, just show that 50% of the evidence indicates that it could be. (guy in car from out of state at night, guy fits the profile of something, road is a "drug corridor", guy had alot of cash, guy was speeding) It's hard to convict you of a crime for driving around with a envelope stuffed with a lot of cash. But's it's easy to demonstrate reasons why the cash may be used for nefarious purposes.
- rayiner 11y ago
  It's the standard civil burden of proof. If I say I own Blackacre and you say you own it, I just have to present enough evidence to get over the 50% mark.
  - jbooth 11y ago
    I think the point here is that a civil burden of proof is completely inappropriate when the plaintiff is the state and there's an allegation of criminality.
    - dragonwriter 11y ago
      That's not necessarily a bad argument, but the theoretical basis of the criminal burden of proof is that the kind of consequences resulting from criminal conviction are different than mere property (which is routinely at issue in civil cases). So, the principle on which the existing distinction is based really doesn't support it being applied to forfeiture actions. And, while there might be a good argument for changing the principle underlying the distinction, I don't see a clear reason for applying specifically the beyond a reasonable doubt standard to forfeiture (or even a higher standard that would apply in any other civil claim.)
  - Spooky23 11y ago
    If you're being sued to turn over The property I would say no problem... but you're not, it's being confiscated
- dragonwriter 11y ago
  > That's a low standard for the government to meet. "Preponderance of the evidence" means that the government doesn't need to prove the property is subject to forfeiture, just show that 50% of the evidence indicates that it could be. Preponderance of the evidence is the standard burden of proof for civil cases, whatever actors are involved -- the side the wins is the side that proves that its position is most likely to be correct. The higher (beyond a reasonable doubt) burden of proof in criminal cases exists as a safeguard because of the greater consequences to liberty of a criminal conviction. Its the same standard used when pretty much anyone wants to use the legal system to take your money or other property via a lawsuit, so I don't think its that outrageous that it is used for civil forfeiture cases.
  - jbooth 11y ago
    If we were talking about a contract dispute where one of the parties is a city, state or the federal government, you're totally right. If we're talking about the police alleging that you have money because of criminal acts, we should switch to the criminal standard.