By Datuk Syed Azimal Amir Syed Abu Bakar
Another frequent criticism of civil forfeiture is that owners of seized property are presumed “guilty” and thus have the burden of proving their “innocence” to regain their property. This, it is said, turns the bedrock legal principle of “innocent until proven guilty” on its head.
As previously noted, in all forfeiture proceedings, including civil forfeiture, the burden of proof is on the government. If the government fails to meet its burden of linking the property to criminal activity, it loses the case without the property owner having to make any showing of innocence. In other words, the property’s connection to crime must be proved by the government, not disproved by the owner.
And while the Supreme Court has held that the innocent owner defense is not constitutionally required, the law nonetheless provides a claimant the opportunity to demonstrate that despite the government having met its burden, the asset should nonetheless not be forfeited. As Justice Kennedy has observed, in civil forfeiture, “only the culpable stand to lose their property; no interest of any owner is forfeited if he can show he did not know of or consent to the crime.” United States v. Ursery, 518 U.S. at 294 (concurring opinion; internal citation omitted).
Standard of Proof:
As noted above, the government always has the burden to prove the link between the property and criminality. The government must show this by a preponderance of the evidence, the conventional standard of proof in a civil case.
Some have suggested that the government be held to a higher standard, such as “clear and convincing evidence.”
Deviating from the usual civil standard in this way would benefit sophisticated criminals who are able to manipulate circumstances to distance their crimes from their proceeds.
For the first 200 years of United States’ history, civil in rem forfeitures were governed by the probable cause standard under which the government could sustain its burden of proof simply by establishing probable cause that the defendant property was “tainted” or subject to forfeiture under the statute in question.
Only fifteen years ago, Congress raised the standard of proof for nearly all civil in rem forfeitures to the preponderance of the evidence standard, the common and conventional standard governing civil litigation in the federal and state courts.
While drafting CAFRA, Congress considered but ultimately declined to adopt the clear and convincing standard.
Adopting the higher standard would have a perverse result in fraud cases, for example. When the weight of the evidence establishes by a preponderance that the funds in a bank account were derived from
Medicare reimbursements for services never performed, under the law the government will prevail in establishing liability.
But, if thatevidence does not meet the clear and convincing standard, the funds would be returned to the doctor committing the fraud rather than to the victim taxpayers.
To avoid this perverse outcome, civil forfeiture claims should be held to the same exact evidentiary standards as other civil claims in our courts of law.
Moreover, forfeiture cases like those involving sophisticated international money laundering, which frequently rely on circumstantial evidence linking the funds to illegal activity, would be virtually unwinnable under the higher standard of proof.
Consequently, the higher standard would result in the prosecution of fewer civil forfeitures, with a corresponding reduction in the disruption, deterrence and punishment of criminal organizations involved in illegal activity. In addition, making civil forfeiture more difficult will mean less money is recovered and returned to victims of crime.
Datuk Syed Azimal Amir Syed Abu Bakar is a prominent lawyer and have been practising since October 26, 1991.