One of the aspects of criminal investigation that can be particularly frustrating for defendants is asset forfeiture. There are two different types of forfeiture, civil and criminal, but the form that bears the brunt of criticism is the civil variety.
The reason for this is that law enforcement officials may use the civil asset forfeiture process to seize property they believe to have been used in a crime, without the defendant even having to be charged or found guilty of a crime. The same is not true of criminal asset forfeiture. Much of the criticism is related to abuses of the process. The abuses that can occur in civil asset forfeiture can be downright scandalous, particularly in states where law enforcement agencies are allowed to directly benefit from the property they seize.
When property is seized, property owners do have the ability to regain possession of it, but they are required to go through the legal process of proving that the property was not involved in criminal activity. State law requires that this be proven by a preponderance of the evidence, meaning it is more likely than not that the property was not involved in a crime.
Under current state law, the state is not required to return seized property to an owner when there is an acquittal. This point is a significant source of contention, and prompted Rep. David Simpson to introduce legislation that would do away with the civil asset forfeiture process and require a criminal conviction before officers may seize property.
In our next post, we’ll continue discussing this proposal, as well as how an experienced attorney can help in the asset forfeiture process.
