Various stories have arisen as of late detailing circumstances in which property was seized by the government for forfeiture from individuals who had not been charged with a crime themselves. In a not-so-subtle attempt to derail the civil asset forfeiture statutes as we know them, few of these articles have properly outlined the correct standard of proof associated with such cases.
To clarify, prior to the passage of the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), a forfeiture trial began once the Government established probable cause to believe that the property was subject to forfeiture. After this threshold showing was made, both sides attempted to establish forfeitability or non-forfeitability based on a preponderance of the evidence standard, which in effect, shifted the burden of proof to the claimant.
After the passage of CAFRA, however, the burdens of proof became more readily distinguishable and the civil forfeiture trial was essentially broken down into two phases:
As the detractors currently appear to be the only ones shaping the discussion about civil asset forfeiture, readers should take heed that the burden of proof in a forfeiture case is not limited to probable cause on behalf of the government, then shifting the burden to the claimant to establish innocent ownership - this is incomplete.
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