Everett Animal Abuse

Letter from a friend...
This goes a lot deeper & further than you can even know. Your case is not just about dogs. There are civil, procedural & constitutional rights violations in spades here. Here is what you want to do first

1) File an Affidavit of prejudice against the judge in your case, he has already been reprimanded by the state's Judicial Commission for violating defendants rights & due process. Also since as you pointed out he is the one who issued the warrant he has already "convicted" you in essence, he has not made a ruling in your case so you still have the right to have him removed. (I've included his reprimand)

2) File a complaint with the Judicial Commission against Commissioner Waggoner, since she let you present your case, in front of the prosecutor & said she wouldn't rule on your case because you didn't file a motion which you clearly did, she compromised your criminal case & seems to be incompetent in matters regarding the law, due process, & she should've informed you of your 5th Amendment rights not to incriminate yourself in the criminal matter. The fact that she didn't cite the procedural error she believed why she shouldn't rule on your case until AFTER you presented your case speaks volumes about her intentions. You need to get the court minutes ASAP because the prosecutor can not over ride the Washington state constitution nor can any municipality rule over Washington state RCW's (I've included the complaint form)
3) File a motion requesting your current attorney be removed from your case & ask for an attorney with expertise in the areas of Animal & Civil rights. Since this case is unique & requires expertise in specific laws & procedure. Make sure you ask the SAME questions of any attorney they appoint for you. What is your level of expertise in this area of law? How long have you been practicing? How many cases have you won, ie: What is your win/loss ratio? Do you have liability insurance & what is your insurance limit? If a lawyer gets defensive, over these questions like the last one did, then you need to just go pro se, you stand a better chance of having a fool for a client than an idiot for a lawyer. (I've included the motion for a new attorney as well as instructions forms)
4) File a motion to have them throw out the pictures since they did not photograph all 4 sides of the car & clearly not the area where you had the dogs food supplies. Even if they don't allow for that remember to point out this fact to the jury, as any logical minded person will still wonder why they were so thorough in photographing the other 3 sides but not the 1. Since the photo's clearly show your water bottle on the car & food dishes almost full inside, the pictures really can't hurt you.
5) File a motion to get Officer Trask's statement thrown out as it contains, hearsay, get an affidavit from your vet that says they did not make those statements attributed to them & that they are prepared to come to court to say so. Even if they don't throw out her statements then they still work in your favor, they are full of lies & her reference over the course of all 3 statements of you being a "thin Native American Woman" is enough to make any person wonder what her true motivation is. It also makes your case for you. As for the vet records, keep those, even if they "lose" them you still have them. You will need them also for your civil torts claim & civil case, as they represent so many things, 1 they establish that the dogs were not malnourished, not dehydrated, & appeared to be healthy. Since you have Soffie's vet records you have proof you have tried to get vet care for her.  As for their claim the dogs were treated for Giardia & 1 for tapeworms 2 months after they were brought in, that is also refutable as to when they got them & since there is no treatment date, it can be assumed they got it from the shelter, since no mention of fleas was ever made in the initial vet exams, & you have your treatment record.
6) File a motion for the return of your dogs in the municipal court while simultaneously filing a Motion for Reconsideration & Affidavit of prejudice against commissioner Waggoner, Affidavit first, Motion 2nd in Superior court.
7) Remember no matter what you do, do NOT waive your rights to a speedy trial.
8) Compile your witness list by this weekend. Make sure to include the landlord, the neighbor & the lady you were staying with as hostile witnesses. Also call the staff from the Everett Shelter that you have dealt with when you were pulling dogs, & anyone who examined your dogs. Include the Animal Control Agents from King & Kitsap counties as well. also get sworn Affidavits from all the shelter workers & Managers you have dealt with, all of the rescues you have dealt with, & most importantly try to get a statement from ALL of the people who have adopted from you, & people who have signed over animals to you. Get sworn Affidavits from your vet techs, all of your volunteers & your donors as well. Get as many of them to come in as you can & remember the prosecutor will try to say that those witnesses are not pertinent to this case but don't fall for it, they have attacked your character & your credibility, saying that you kept your dog alive for donations. Another thing you need to bring up is the fact that this crazy woman is saying they told her your dogs had Giardia & worms, but at the initial exams they showed no signs, but all of a sudden 2 months later they do? So either they are trying to cover their butts, for her or for themselves.
9) Jury selection, try to get as many Native Americans on your jury panel as possible, since it seems to be such a big deal, you have a right to be heard by a jury of your "Peers" , make sure to ask them what they feel would be a credible reason for getting rid of a pet, how they feel about euthanasia, & see if they have ever been homeless, they don't have to be rocket scientists but make sure they have some level of education.
10) Remember that the city has the burden of proof, you have the right to defend yourself, make sure to take as much time as you need to present your case, the judge will try to hurry you along, but do NOT be rushed, you need to present every single little item of relevance in your case big or small so that if you lose you will have lots of points to bring up in appeals court, many cases have been lost because relevant info wasn't presented in court leaving the defendant with no basis for appeal, but REMEMBER if you lose you need to file an Emergency Injunction for the dogs & cat or they can immediately
euthanise all of them if they want to.

Notes:
You should not file the Tort Claims til after your court hearing but you also have only 6months to file it so file it anyway if this case is not resolved by then anyway. (I've included the tort form & filled out some of the relevant parts for you)

You need to contact your local FBI office about the Animal Control officer's statements, they have to investigate because it is a City Agency. Start this process IMMEDIATELY & once you get the PDR you can add additional info to the case file. There is also a link where you can file on the internet, make sure to print or copy the form after you have completed it. Make the complaint against the City of Everett & Everett Animal Control as the city is the controlling agency responsible for the oversight of all of it's agencies & officers thereof.
http://www.justice.gov/crt/complaint/ Criminal 

Color of Law Abuses

U.S. law enforcement officers and other officials like judges, prosecutors, and security guards have been given tremendous power by local, state, and federal government agencies—authority they must have to enforce the law and ensure justice in our country. These powers include the authority to detain and arrest suspects, to search and seize property, to bring criminal charges, to make rulings in court, and to use deadly force in certain situations.
Preventing abuse of this authority, however, is equally necessary to the health of our nation’s democracy. That’s why it’s a federal crime for anyone acting under “color of law” willfully to deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law. “Color of law” simply means that the person is using authority given to him or her by a local, state, or federal government agency.
The FBI is the lead federal agency for investigating color of law abuses, which include acts carried out by government officials operating both within and beyond the limits of their lawful authority. Off-duty conduct may be covered if the perpetrator asserted his or her official status in some way.
During 2009, the FBI investigated 385 color of law cases. Most of these crimes fall into five broad areas:

• Excessive force;
• Sexual assaults;
• False arrest and fabrication of evidence;
• Deprivation of property; and
• Failure to keep from harm.

Excessive force: In making arrests, maintaining order, and defending life, law enforcement officers are allowed to use whatever force is "reasonably" necessary. The breadth and scope of the use of force is vast—from just the physical presence of the officer…to the use of deadly force. Violations of federal law occur when it can be shown that the force used was willfully "unreasonable" or "excessive."
Sexual assaults by officials acting under color of law can happen in jails, during traffic stops, or in other settings where officials might use their position of authority to coerce an individual into sexual compliance. The compliance is generally gained because of a threat of an official action against the person if he or she doesn’t comply.
False arrest and fabrication of evidence: The Fourth Amendment of the U.S. Constitution guarantees the right against unreasonable searches or seizures. A law enforcement official using authority provided under the color of law is allowed to stop individuals and, under certain circumstances, to search them and retain their property. It is in the abuse of that discretionary power—such as an unlawful detention or illegal confiscation of property—that a violation of a person's civil rights may occur.
Fabricating evidence against or falsely arresting an individual also violates the color of law statute, taking away the person’s rights of due process and unreasonable seizure. In the case of deprivation of property, the color of law statute would be violated by unlawfully obtaining or maintaining a person’s property, which oversteps or misapplies the official’s authority.
The Fourteenth Amendment secures the right to due process; the Eighth Amendment prohibits the use of cruel and unusual punishment. During an arrest or detention, these rights can be violated by the use of force amounting to punishment (summary judgment). The person accused of a crime must be allowed the opportunity to have a trial and should not be subjected to punishment without having been afforded the opportunity of the legal process.
Failure to keep from harm: The public counts on its law enforcement officials to protect local communities. If it’s shown that an official willfully failed to keep an individual from harm, that official could be in violation of the color of law statute.
Filing a Complaint
To file a color of law complaint, contact your local FBI office by telephone, in writing, or in person. The following information should be provided:

• All identifying information for the victim(s);
• As much identifying information as possible for the subject(s), including position, rank, and agency employed;
• Date and time of incident;
• Location of incident;
• Names, addresses, and telephone numbers of any witness(es);
• A complete chronology of events; and
• Any report numbers and charges with respect to the incident.

You may also contact the United States Attorney's Office in your district or send a written complaint to:

Assistant Attorney General
Civil Rights Division
Criminal Section
950 Pennsylvania Avenue, NorthwestWashington, DC 20530

FBI investigations vary in length. Once our investigation is complete, we forward the findings to the U.S. Attorney’s Office within the local jurisdiction and to the U.S. Department of Justice in Washington, D.C., which decide whether or not to proceed toward prosecution and handle any prosecutions that follow.

Civil Applications

Title 42, U.S.C., Section 14141 makes it unlawful for state or local law enforcement agencies to allow officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or U.S. laws. This law, commonly referred to as the Police Misconduct Statute, gives the Department of Justice authority to seek civil remedies in cases where law enforcement agencies have policies or practices that foster a pattern of misconduct by employees. This action is directed against an agency, not against individual officers. The types of issues which may initiate a pattern and practice investigation include:

• Lack of supervision/monitoring of officers' actions;
• Lack of justification or reporting by officers on incidents involving the use of force;
• Lack of, or improper training of, officers; and
• Citizen complaint processes that treat complainants as adversaries.

Under Title 42, U.S.C., Section 1997, the Department of Justice has the ability to initiate civil actions against mental hospitals, retardation facilities, jails, prisons, nursing homes, and juvenile detention facilities when there are allegations of systemic derivations of the constitutional rights of institutionalized persons.

Report Civil Rights Violations

• File a Report with Your Local FBI Office
• File a Report over Our Internet Tip Line
• Visit Our Victim Assistance Site

Resources

• Deprivation of Rights Under Color of Law Statute
• Principles for Promoting Police Integrity (pdf)
• Addressing Police Misconduct Brochure
• Law Enforcement Misconduct FAQs

The Civil Rights Division enforces civil rights laws in a wide variety of

contexts. You may use the information on this page to find the appropriate

way to submit a complaint or report of a potential civil rights violation.

If you are not sure which Section is the appropriate one to receive your

complaint, you may contact the Civil Rights Division at (888) 736-5551 or

(202) 514-3847.

ASSET FORFEITURE: RULES AND PROCEDURES
by Brenda Grantland

Brenda Grantland, Esq., is an attorney in Washington, D.C. She has handled forfeiture cases since 1984 and has helped form a new organization, Forfeiture Endangers American Rights (FEAR). FEAR is forming a forfeiture lawyers directory. If you would like to join the organization (membership $20) or be listed in the directory, contact FEAR at: P.O. Box 513, Franklin, NJ 07416.

Introduction to asset forfeiture

Asset forfeiture-the process by which the government permanently takes property away from the owner, without paying just compensation, as a penalty for offenses committed by the property or the owner-is one of the most controversial law enforcement weapons in the - "War Against Drugs." Although it has come into vogue in the past few years, asset forfeiture has existed since Biblical times.

Forfeitures have existed for thousands of years and are traceable to biblical and pre-Judeo Christian times. At early English law, there were three basic kinds of forfeiture. The first, "forfeiture consequent to attainder," was applied to felons and traitors in order to divest the convicted person of all real and personal property. The second, "statutory forfeiture," tailored the forfeiture to the severity of the crime. Finally, the English law recognized a kind of forfeiture known as "deodand," which required forfeiture of the instrument of a person's death. The principle was based on the legal fiction that the instrument causing death was deemed "guilty property" capable of doing further harm. For example, if a domesticated animal killed a person, it would be forfeited, usually to the King, regardless of the guilt of its owner. The original purpose for creating this legal fiction was to satisfy the superstition that a dead person would not lie in tranquility unless the "evil property" was confiscated and viewed by the deceased's kin as the object of their retribution. Eventually, the King used forfeiture to enhance revenue, and this corrupt practice lead to the statutory abolishment of deodand in England in 1846.

Irving A. Pianin, Criminal Forfeiture: Attacking the Economic Dimension of Organized Narcotics Trafficking, 32 American U.L. Rev. 227, 232 (1982

Many of the anachronisms in forfeiture procedure and doctrine-such as the fiction that the property itself is the defendant are remnants of this ancient history. Others-such as the lowering of the burden of proof to probable cause in the federal statute, and the requirement that the claimant post a bond in order to litigate his/her right to the property-were created by the legislature to make it easier for law enforcement to prevail. Because no liberty interest was implicated, proponents of the new forfeiture laws believed the government had virtually unlimited power to punish under the guise of "remedial" civil statutes without having to deal with the stringent proof requirements of the criminal courts.

A number of commentators believe the legislatures have gone too far in easing the government's burden of proof and relaxing the normal civil due process safeguards. Several of the controversial departures in proce dure have been struck down as unconstitutional.

The law is rapidly changing in this area. Because the War on Drugs has resulted in new tactics by law enforcement which go far beyond previous practices and test the limits of the Constitution, virtually every forfeiture case is a case of first impression on some issue. Attorneys who undertake forfeiture cases should be alert for these issues.

Even with the standards and procedures strongly slanted in the government's favor, often the government fails to measure up to them. Numerous problems have been cited in the federal government's management of property seizure and forfeiture programs in studies by the United States General Accounting Office. Among the specific problems cited are failures to preserve the condition of the property and to protect the interests of innocent third parties. See, e.g., "Real Property Seizure and Disposal Program Improvements Needed," Statement of Gene L. Dodaro, Associate Director, General Government Division, before the Subcommittee on Federal Spending, Budget and Accounting, U.S. Senate, GAO/T- GGD 87-28 (September 25, 1987) (a copy of this document may be obtained free of charge from the General Accounting Office publications office).

Civil vs. criminal forfeitures

There are two types of forfeiture--civil, or in rem forfeitures, and criminal, or in personam forfeitures. A number of courts have grappled with the distinction.

The classical distinction between civil and criminal forfeiture was founded upon whether the penalty assessed was against the person or against the thing. Forfeiture against the person operated in personam and required a conviction before the property could be wrested from the defendant. See Calero-Toledo v Pearson Yacht Gearing Co., 416 U.S. 663, 682, (1973); One 1958 Plymouth Sedan v Pennsylvania, 380 U,S. 693, 700, 85 S Ct. 1246, 1250; 14 L.Ed.2d 170 (1965). Such forfeitures were regarded as criminal in nature because they were penal; they primarily sought to punish.

United States v Seifuddin, 820 F.2d 1074, 1076 (9th Cir. 1987).

"Criminal" forfeitures are subject to all the constitutional and statutory procedural safeguards available under criminal law. The forfeiture case and the criminal case are tried together. The forfeiture counts must be included in the indictment of the defendant which means the grand jury must find a basis for the forfeiture. At trial, the burden of proof is beyond a reasonable doubt. Examples of criminal forfeiture statutes in current use are RICO (18 U.S.C. § 1963), the Continuing Criminal Enterprise statute (21 U.S.C. § 848) and the criminal forfeiture provision of the drug laws, (21 U.S.C. § 853).

"Civil" forfeitures, on the other hand, are in rem actions, "based upon the unlawful use of the res, irrespective of its owner's culpability." Id. Traditionally, civil forfeiture has operated on the fiction that the res itself is the guilty party, and the fact that the forfeiture of the property effects someone's property rights was at first not considered.

Civil forfeiture follows the rules of civil procedure, with the exceptions discussed in the following section entitled "Nature of Forfeitures." The most drastic difference is the burden of proof. In criminal forfeitures, the burden of proof is on the government to prove its case beyond a reasonable doubt. Under the District of Columbia and federal forfeiture statutes (as well as the statutes of many states) the government has only to show probable cause, then the burden shifts to the claimant. Most civil forfeiture statutes also relax the normal requirements for service of process in civil cases, and allow the government to send notice by fast class mail coupled with publication. This has traditionally been permitted because civil forfeiture is "in rem" instead of "in personam."

Often courts have drawn a distinction between civil and criminal forfeitures in determining whether a particular constitutional right applies to forfeiture. Analysis along these lines is problematic because the distinction is so arbitrary, and constitutional rights are not so neatly categorized. Whether a forfeiture statute is civil or criminal turns on whether it is "punitive or remedial" under the standard of United States v Ward, 448 U.S. 242, 248-49 (1980), which depends on the intent of the legislature in enacting the statute:

[T]he question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction.... Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other... Second where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.... In regard to this latter inquiry, we have noted that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground."

United States u Ward, 448 U.S. 242, 248-49 (1980), quoting Flemming v Nestor, 363 U.S. 603 (1960). In determining whether the sanctions are so punitive as to override a legislative intent to enact a civil penalty, the Court applied the seven considerations listed in Kennedy v Mendoza-Martinez, 372 U.S. 144, 168-69 (1963):

[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a fording of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.

Constitutional implications of the quasi-criminal nature of forfeitures

All forfeiture actions, whether they are denominated "civil" or "criminal" forfeitures, are "quasi-criminal" in nature, and therefore require many of the constitutional procedural safeguards guaranteed to defendants in criminal cases.

[P]roceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal. In this very case the ground of forfeiture ... consists of certain acts of fraud committed against the public revenue ... ; and it is declared, that the offender shall be fined ... or be imprisoned ... ; and in addition to such fine such merchandise shall be forfeited. These are the penalties affixed to the criminal acts, the forfeiture sought by this suit being one of them.... The [case], though technically a civil proceeding, is in substance and effect a criminal one.... As, therefore, suits for penalties and forfeitures incurred by the commission of offenses against the law, are of this quasi criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the fourth amendment of the constitution.

One 1958 Plymouth Sedan v Commonwealth of Pennsylvania, 380 U.S. 693, 697-98 (1965), quoting Boyd v United States, 116 U.S. 616, 633-34 (1886).

In addition to the Fourth Amendment's search and seizure clause, the United States Supreme Court has extended several other constitutional rights recognized in criminal cases to all forfeiture actions-civil or criminal.

These include: the Fifth Amendment's privilege against self-incrimination, United States v United States Coin & Currency, 401 U.S. 715 (1971); and the Sixth Amendment's speedy trial guarantee, which has been read in through the Fifth Amendment's due process clause. United States u $8,850, 461 U.S. 555 (1983).

The ex post facto clause of Article II Section 9 has been held to be applicable to forfeitures. United States v MacDonald, 607 F. Supp. 1183 (E.D.N.C. 1985); United States v Lot Number 50 on Map of Kingsbury, 557 F Supp. 72 (D. Nev. 1972). In several courts, the Eighth Amendment cruel and unusual punishment clause has been found to apply to bar disproportionality between the offense and penalty in criminal forfeiture cases. United States v Busher, 817 F2d 1049 (9th Cir. 1987) (RICO statute, 18 U.S.C. § 1963(a), is subject to Eighth Amendment); United States v Huber, 603 F2d 387 (2nd Cir. 1979), cert. denied, 445 U.S. 927 (1980) (same); United States v Littlefteld, 821 F.2d 1365 (9th Cir. 1987) (drug "criminal forfeiture" statute, 21 U.S.C. § 853, is subject to Eighth Amendment).

The double jeopardy clause has been found not to prevent forfeiture after a criminal acquittal for the same offense, nor does an acquittal bar forfeiture under the doctrine of collateral estoppel (because of the higher burden of proof in criminal cases). United States v One Assortment of 89 Firearms, 465 U.S. 354 (1984). The confrontation clause was held not to apply, in United States v Zucker, 161 U.S. 475 (1896); however, most of the forfeiture cases of that era have not stood the test of time.

Claimants in forfeiture cases are not entitled to representation by counsel at the government's expense. The Supreme Court has held that a person has a right to a court appointed attorney at the government's expense only if the judgment could result in the loss of liberty, Arg ersinger v Hamlin, 407 U.S. 25 (1972), and convictions can be reversed on denial of counsel grounds only if the judgment results in a sentence of imprisonment, Scott u Illinois, 440 U.S. 374-75 (1979).

There is a vast no-man's land of other constitutional guarantees from the criminal law context that have never been tested in the forfeiture arena.

Government's authority to take

The Fifth Amendment to the United States Constitution provides, among other things, "nor shall private property be taken for public use without just compensation." That would seem to bar forfeitures entirely, but it doesn't. In Calero-Toledo v Pearson Yacht Leasing Co., 416 U.S. 663 (1973), the Supreme Court rejected the contention that the Puerto Rican forfeiture statute, which had no innocent owner defense, "unconstitutionally authorized a taking for government use of innocent parties' property without just compensation." The Court cited a long line of Supreme Court precedents establishing that innocence of the owner was not a defense to forfeiture. "Judicial inquiry into the guilt or innocence of the owner could be dispensed with, the Court held, because state lawmakers, in the exercise of the police power, were free to determine that certain uses of property were undesirable and then establish `a secondary defense against a forbidden use.' " Calero-Toledo, 416 U.S. at 686. But, the Court pointed out, this doctrine too has its limitations:

This is not to say, however, that the "broad sweep" of forfeiture statutes remarked in Coin & Currency could not, in other circumstances, give rise to serious constitutional problems. Mr. Chief Justice Marshall intimated as much over a century and a half ago in observing that "a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed." Peisch u Ware, 4 Cranch 347, 363 (1808). It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent.... Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property.

Calero-Toledo, 416 U.S. at 688-89.

The power of the government to "take" private property without implicating the just compensation clause is limited to takings that are authorized by the police power. The police power is a function, delegated to each state and local government, to establish and enforce laws to preserve public order and tranquility, promote the public health, safety, and morals and prevent, detect and punish crime. See State v Hine, 59 Conn. 50,21 A.1024 (1890).

This is an area of overlapping and sometimes competing constitutional concerns--the rights of the individual vs. the protection of the public. It is also an area of the law that is in great flux. In 1987 the U.S. Supreme Court decided three takings cases: Keystone Bituminous Coal u DeBenedictis, 480 U.S. 470 (1987); First English Evangelical Lutheran Church a Los Angeles County, 482 U.S. 304 (1987), and Nollan u California Coastal Com mission, 483 U.S. 825 (1987). It is unclear at this point how the development of the "takings" doctrine will affect forfeiture cases. For an analysis of these cases, see Si emon and Lasen, The Taking Issue Trilogy: The Begin ning of the End? 33 J. Urban & Contemp. Law 169 (1988). See also Epstein, Takings: Private Property and the Power of Eminent Domain (Harvard University Press, 1985).

The police power permits the taking of life, liberty and property, but only with due process of law. At a minimum, like statutes imposing criminal penalties, forfeiture statutes must be strictly construed in favor of the claimant. Forfeiture statutes should be construed "in a manner favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation." District of Columbia u One 1981 Datsun 200SX, 115 D. Wash. L. Rptr. 645 (April 2, 1987) (D.C. Super. Ct., Burgess, J.), quoting State u 1979 Pontiac Trans Am, 98 N.J. 474, 487 A.2d 722, 726 (1985).

Statutory grounds for forfeiture

The following terms are commonly used in both federal and state statutes, and are defined, interpreted or distinguished in the cases cited:

"Used or intended for use to facilitate"-United States u Fleming, 677 F2d 602 (7th Cir. 1982) (car used to transport defendant to place where drug transaction was to take place was subject to forfeiture); United States u Ader, 520 F Supp. 313 (E.D.N.C. 1980) (interpreting term in connection with 21 U.S.C. § 881.)

"Proceeds traceable to a drug transaction "-This language has sometimes been interpreted to include a requirement that the property have a substantial connec tion to illegal drug trafficking." United States v A Single Family Residence, 503 F .2d 625 (11th Cir.1986), quoting United States v $4,255,625.39, 762 F. 2d 895 (11th Cir. 1985), cert. denied, 474 U.S. 1056 (1986).

"Proximity to drugs" D.C. Code 33-552(a)(7)(B) creates a presumption that money found in close proxim ity to drugs was used or intended for use in violation of the drug laws. This provision was found to be unconsti tional by Superior Court Judge Curtis Von Kann, in District of Columbia v $987 (Purvis Williams), 115 D. Wash. L. Rptr.1393 (July 8, 1987).

"Quantity of drugs necessary to effect a forfeiture" The amount of drugs involved in a drug forfeiture case is immaterial to the forfeiture case. United States v One 1976 Porsche, 670 F2d 810, 811 (9th Cir. 1979); United States v One Clipper Bow Ketch Nisku, 548 F.2d 8 (1stCir. 1977); United States v One 1975 Chevrolet K-5 Blazer, 495 F. Supp. 737 (W.D. Mich. 1980); United States v One Chevrolet Pickup, 503 F Supp.1027, 1030 (D. Colo. 1980); United States v One 1975 Mercury Monarch, 423 F. Supp. 1026 (S.D.N.Y 1976). These cases merely construed the statutes-none of the cases dealt with the issue of whether the proportionality requirement of the Eighth Amendment's cruel and unusual punishment clause was implicated by disproportionate penalties.

"Substantial connection requirement"-United States v One 1972 Datsun, 378 F. Supp. 1200 (D.N.H. 1974).

"To facilitate "-United States v One 1972 Chevrolet Corvette, 625 F.2d 1026 (1st Cir. 1980); Platt v United States, 163 F.2d 165 (10th Cir. 1947); United States v One Dodge Coupe, 43 F. Supp. 60 (S.D.N.Y 1942).

"Used in a gambling operation "-Vasille v District of Columbia, 296 A.2d 443 (D.C. 1972).

Federal statutes

The federal government has a large number of forfeiture statutes, but the most widely used are: 21 U.S.C. §§ 853, 881 (relating to drug offenses), 18 U.S.C. § 1963 (racketeer influenced and corrupt organizations), 8 U.S.C. § 1324 (immigration), 18 U.S.C. § 545,19 U.S.C. § 1497, 31 U.S.C. § 5317 (customs violations), 49 U.S.C. § 781 (transportation of drugs, illegal weapons, counterfeit money).

Below is a discussion of the federal forfeiture statutes which commonly relate to drug law enforcement. Drug forfeitures under federal statutes

The most commonly used civil forfeiture statute governing forfeiture for drug offenses is 21 U.S.C. § 881(a). It subjects to forfeiture:

(1) all controlled substances;

(2) raw materials, products and equipment used or intended for use to manufacture, process, deliver or import/export controlled substances;

(3) property used or intended for use as containers for controlled substances;

(4) conveyances, including aircraft, vehicles or vessels (except common carriers whose owner was not a consenting party or privy to the offense) used or intended for use to transport or facilitate the transportation of controlled substances. This section has two innocent owner defenses other than the common carrier exception, § 881(a)(4)(B) and § 881 (a)(4)(C);

(5) books, records, research, formulas and data used in violation of the drug laws;

(6) money and negotiable instruments or any other thing of value "furnished or intended to be furnished" in exchange for controlled substances, including all proceeds traceable to such a transaction, and money and negotiable instruments used or intended to be used to facilitate a violation of the drug laws. This section has an innocent owner defense which protects the interest of any owner from forfeiture of money "by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner";

(7) all right, title and interest to real property which was used or intended for use to commit, or to facilitate the commission of a felony drug offense. An innocent owner is protected from forfeiture of his/her interest in real estate "by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner";

(8) controlled substances possessed in violation of the drug laws;

(9) chemicals and equipment used in manufacture, distribution;

(10) drug paraphernalia

(11) firearms used or intended to be used to faciliate a drug offense.

A counterpart to the civil forfeiture statute 21 U.S.C. § 881 is the criminal forfeiture statute, 21 U.S.C. § 853, which allows forfeiture of property involved in felony drug offenses proscribed in title 21 of U.S. Code. Before forfeiture can occur under § 853, the owner must have been convicted of the underlying felony drug offense. Procedurally trials of § 853 criminal forfeitures vary substantially from civil forfeiture trials under § 881, for in § 853 cases, the forfeiture count is tried as separate counts, but along with the criminal case.

Upon conviction of a felony drug offense under title 21 U.S. Code Subchapter II, or of engaging in a continuing criminal enterprise, under 21 U.S.C. § 848(c)(2), the following property owned by the criminal defendant is subject to forfeiture:

(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;

(2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and

(3) in the case of a person convicted of engaging in a continuing criminal enterprise in violation of section 848 of this title, the person shall forfeit, in addition to any property described in paragraph (1) or (2), any of his interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise. 21 U.S.C. § 853(a).

A conviction under 21 U.S.C. § 848(c), the "continuing criminal enterprise" statute, requires: (1) commission of a felony drug offense, and (2) the offense must have been "part of a continuing series of violations" of the felony drug laws

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources. 21 U.S.C. § 848(c)(2).

Vessels, vehicles and aircraft used to transport contraband drugs are forfeitable under 49 U.S.C. § 781(b)(1). Racketeer influenced and corrupt organizations

Anyone convicted under 18 U.S. Code § 1962, Racketeer Influenced and Corrupt Organizations, forfeits: (1) any interest the person has acquired or maintained in violation of section 1962; (2) any-{A) interest in; (B) security in; (C) claim against; or (D) property or contractual right of any kind affording a source of influence over; any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of in violation of section 1962; and (3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in violation of section 1962.

In R.I.C.O. cases, the forfeiture counts are tried along with the criminal trial, and the court imposing sentence in the criminal case orders forfeiture of the property described above. 18 U.S.C. § 1963(a).

Customs forfeitures

19 U.S.C. § 1497 authorizes forfeiture of any article required to be declared upon entering customs if the article was not properly declared.

31 U.S. Code § 5316(a) requires persons carrying more than $10,000 at one time across the border (going into the U.S. as well as out of the U.S.), or receiving more than $5,000 at one time that has been transported across the border, to file a written report. When money has been transported across the border in violation of § 5316(a), or when a material omission or misstatement is contained in the report, is subject to forfeiture under 31 U.S.C. § 5317(b).

Smuggling goods across the border also subjects them to forfeiture under 18 U.S.C. § 545. This applies to anyone who knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document paper, or [w]hoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law.

Id.

Firearms forfeitures under federal law

Under 49 U.S.C. § 781(b)(2), "any firearm, with respect to which there has been committed any violation of any provision of the National Firearms Act or any regulation issued pursuant thereto" is subject to forfeiture.

Firearms used or intended for use to facilitate a drug offense are forfeitable under 21 U.S.C. § 881(a)(11).

Defenses to forfeiture

Affirmative defenses must be raised in the answer, Fed. R. Civ. P and Sup. Ct. R. Civil Rule 8(c), but the answer may be amended even at the time of trial to conform with the evidence. Fed. R. Civ. P and Sup. Ct. R.-Civil Rule 15(b). However, it is a good practice to amend the answer as soon as there appears to be evidence to support an affirmative defense. The most common affirmative defenses to forfeiture are: Innocent Owner, Personal Use, Statute of Limitations, and the constitutional defenses of Denial of Speedy Trial, and Illegal Search and Seizure.

Innocent owner defense

Section 881(a)(7) of title 21 U.S.C., dealing with the forfeiture of real estate for violations of the drug laws, has an innocent owner defense identical in all significant respects to that used in the D.C. statute governing forfeiture of conveyances for drug violations:

[N]o property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reasons of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.

Id. Most of the other federal statutes provide little or no protection of the interests of innocent owners and third parties.

Where the forfeiture statute does not contain a better innocent owner defense, the Constitution guarantees at a minimum that a person not be deprived of his/her property if he/she did not know of or consent to the illegal use of the property and did everything he/she reasonably could be expected to do to prevent the illegal use. Calero Toledo v Pearson Yacht Leasing Co., 416 U.S. 663 (1974). This defense is read into the federal statute.

Personal use defense

That the drugs seized were intended for personal use and not for sale is a defense to forfeiture of a car under some state statutes. For example, the D.C. drug forfeiture statute, 33 D.C. Code § 552(a)(4)(C), or real estate under 33 D.C. Code § 552(a)(8)(B). See also United States v Zarbough, 115 D. Wash. L. Rptr. 273 (February 11, 1987).

Simple possession for personal use is not a defense to forfeiture under the federal counterpart, 21 U.S.C. § 881. Often when the D.C. police seize a car and do not have enough evidence of intent to distribute, they will turn the car over to the federal government (DEA or FBI) for prosecution under the federal statute. This is called federal adoption of a state seizure. If the federal government prevails, they share the proceeds with the District government.

Statute of limitations

Under the federal law, the statute of limitations is 5 years from the seizure. 19 U.S. Code § 1621. Even if the action is brought within the applicable statute of limitations, it may be time-barred by the Due Process Clause. $8850 supra.

Constitutional defenses: suppression of evidence

Although not technically a defense, winning a suppression motion often makes it difficult to impossible for the government to prevail at trial. In forfeiture cases the Fourth Amendment may be used to suppress evidence in the same manner as it is used in criminal cases. One 1958 Plymouth Sedan u Commonwealth of Pennsylvania, 380 U.S. 693 (1965). The entire body of search and seizure law is applicable.

Without question, contraband, incriminating documentary evidence, and money seized as a result of an illegal seizure of the res must be suppressed as evidence in the forfeiture trial. But the illegal seizure of the res does not itself bar forfeiture, so long as the government presents other, untainted evidence to prove the illegal use.

An innocent owner often does not have standing to challenge the stop and search of a car because he/she was not present at the time of the seizure. United States u One 1977 Mercedes Benz, 450 SEL, 708 R2d 444, 448 (9th Cir.1983) (owner relinquished reasonable expectation of privacy when she lent her automobile to a third party.)

Where there are parallel criminal and civil forfeiture proceedings involving the same parties and issues, resolution of a suppression issue in one case should be collateral estoppel in the other. The doctrine of collateral estoppel prohibits parties who have litigated one cause of action from relitigating in a second and different cause of action matters of fact which were, or necessarily must have been, determined in the first litigation. Tutt u Doby, 148 U.S. App. D.C. 171, 459 R2d 1195, 1197 (1972).

Denial of speedy trial

In United States u $8,850, 461 U.S. 555 (1983), the United States Supreme Court held that the four factor balancing test of Barker u Wingo, 407 U.S. 514 (1972), used to determine when delay of the trial in criminal cases violates the accused's rights to a speedy trial, is the test to be used in determining when delay in forfeiture cases violates the Due Process clause. The four factors set out by Barker u Wingo and $8850 are: "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." $8850 at 565.

Although the delay challenged in $8850 was the delay between the seizure and the filing of a forfeiture complaint, it has been held that the Barker u Wingo factors also apply to delay between the filing of the action and the trial.

To require prompt filing of a forfeiture action but allow indefinite postponement of the trial would reduce the filing requirement to a nullity. Under the Barker test, which we think applies to the holding of the forfeiture trial as well as to the filing of the action, there is a due process violation at some point.

United States u Banco Cafetero Panama, 797 R2d 1154 (2d Cir. 1986).

[T1here has been no uniformity in deciding what constitutes a reasonable length of time. Delays of five months, United States v One 1973 Buick Riviera, 560 F. 2d 897 (8th Cir. 1977), nine months, United States v One 1972 Wood, 19 Foot Custom Boat, 501 R2d 1327, 1329 (5th Cir. 1974), and fourteen months, United States v One 1973 Ford LTD, 409 F. Supp. 741 (D. Nev. 1976), have been deemed reasonable. Generally a majority of the circuits have held that a delay of more than one year is unreasonable in the absence of a compelling reason, such as a lengthy criminal investigation or substantial problems with collecting evidence. States Marine Lines, Inc. v Schultz, 498 F .2d 1146 (4th Cir. 1974)

Darmstadter & Mackoff, Some Constitutional and Practical Considerations of Civil Forfeitures Under 21 U.S.C. Sec. 881, 9 Whittier L. Rev. 27, 40 (1987).

Forfeiture procedure, seizure warrants, restraining orders and warrantless seizures

In federal law, warrantless forfeitures are governed by 21 U.S.C. § 881(b), which provides:

Any property subject to civil or criminal forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court of the United States having jurisdiction over the property, except that seizure without such process may be made when

(1) the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;

(2) the property subject to forfeiture has been the subject of a prior judgment in favor of the United States in a

criminal injunction or forfeiture proceeding under this subchapter;

(3) the Attorney General has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

(4) the Attorney General has probable cause to believe that the property is subject to civil or criminal forfeiture under this subchapter.

In the event of seizure pursuant to paragraph (3) or (4) of this subsection, proceedings under subsection (d) of this section shall be instituted promptly.

Warrantless seizures

Federal law, 21 U.S.C. § 881(b)(4), provides exceptions to the warrant requirement in the seizure of assets for forfeiture. Generally it is thought that the power to seize without a warrant is coextensive with the power to search without a warrant, provided the search leads to probable cause to seize. The same exceptions to the warrant requirement apply to both searches for evidence and seizures for forfeiture. Thus, if under the facts of the case there exists probable cause for an automobile or container or other thing to be searched, under any exception to the warrant requirement, and the search turns up evidence which makes out probable cause to support a forfeiture of the automobile, container, etc., it may be seized without a warrant. There are, however, a few qualifications to that general rule.

It has been held by some courts that the seizure of the res must occur contemporaneously with the event giving rise to probable cause for seizure, and there must be a showing of exigent circumstances. In United States v Pappas, 613 F2d 324, 327 (5th Cir. 1979) the Fifth Circuit stated:

Since Sec. 881(b)(4) creates an exception that threatens to swallow Section 881(b)'s warrant requirement, we would be reluctant to give it an absolutely literal reading. Id. at 327, quoting United States v One 1972 Chevrolet Nova, 560 F2d 464, 469 (1st Cir. 1977). The court held: we think it reasonable to read the "probable cause" exception as justifying the warrantless seizure of an automobile only when the seizure immediately follows the occurrence that gives the federal agents probable cause to believe that the automobile is subject to forfeiture under section 881(a) and the exigencies of the surrounding circumstances make the requirement of obtaining process unreasonable or unnecessary.

But see United States v One 1977 Lincoln Mark V Coupe, 643 F2d 154 (3d Cir.1981) (en banc) (holding that a short delay between the incident giving rise to probable cause and the seizure does not invalidate a warrantless seizure; however, this ruling is undermined by the court's reliance upon language from an older case indicating that the body of search and seizure law applicable to criminal cases does not apply to civil forfeiture, a contention which was clearly rejected by the Supreme Court in One 1958 Ply mouth Sedan v Commonwealth of Pennsylvania, 380 U.S. 693 (1965).)

Because real estate does not fit within the automobile exception, or any of the other exceptions relating to portable property, (and thus there is no exigency) a warrant is generally required for the seizure of real estate for forfeiture. United States v $128,035, 628 F Supp. 668 (S.D. Ohio 1986) ("requiring the Attorney General to secure a warrant prior to seizing a home or business represents a minimal burden, particularly in light of the substantial privacy interests infringed by the warrantless seizure of a home or business.") See also Sinoway, Sei zures of Houses and Real Property Under Marijuana Forfeiture Laws, 14 Search & Seizure L. Rpt. 113 (May 1987).

Warrants are also generally obtained when the forfeitable property-such as a bank account is held by another. This is probably because the government needs the force of authority of a warrant in order to get the third party to turn over the property.

Seizure warrants

In federal cases, property subject to forfeiture may be seized with a seizure warrant obtained pursuant to the procedures outlined in Supplemental Rule C, by merely filing a verified complaint meeting the specificity requirements of rule E. Under Rule C, the clerk then has no choice but to issue the warrant. There is no provision in the rule for a probable cause determination by a disinterested magistrate. This rule has been criticized by numerous commentators and has been found unconstitutional by numerous courts. See, e.g., United States v Certain Real Estate Property Located at 4880 S.E. Dixie High way, 612 F Supp. 1492 (S.D. Fla. 1985), 838 F2d 1558 (11th Cir. 1988); Application of Kingsley, 614 F. Supp. 219 (D. Mass. 1985), 802 F .2d 571 (1st Cir.1986); United States v Device, Labelled Theramatic, 641 F2d 1289 (9th Cir. 1981).

The rule was amended in 1985, admittedly to cure questions as to its constitutionality, and now requires a determination of probable cause by a disinterested magistrate before an admiralty warrant will issue. However, the amendment carved out an exception for all forfeiture cases, allowing seizure warrants in those cases to continue to be issued by the clerk without a probable cause determination. The questions regarding the constitutionality of this procedure continue to occur in forfeiture cases. Many federal courts have solved this problem by local rule. In some federal jurisdictions, local rules also provide post-seizure probable cause hearings at which the claimant can put on evidence. Strafer, Civil Forfeitures. Protecting the Innocent Owner, 37 U. Fla. L. Rev. 841, 852 (1985).

Restraining orders

Under the RICO (18 U.S.C. §§ 1962 et seq.) and CCE (21 U.S.C. § 848) criminal forfeiture statutes, once an indictment has been filed, the criminal court has jurisdiction to enter restraining orders, injunctions or prohibitions, to require posting of satisfactory performance bonds, or to take any other action it deems proper to prevent the dissipation of forfeitable assets prior to the conclusion of the case. See 18 U.S.C. § 1963(e), 21 U.S.C. § 848(d).

Under RICO, a restraining order maybe obtained prior to indictment if: (1) persons holding interests in the property are given notice and an opportunity for a hearing, (2) court determines there is substantial probability the government will prevail, and that failure to enter a restraining order will result in the dissipation of the property, and (3) the need to preserve the availability of the property outweighs the hardship on any party against whom the order is to be entered. 18 U.S.C. § 1963(e)(1)(B).

These restraining order provisions have been the source of a great deal of controversy as to their constitutionality because, at least in post-indictment restraining order cases, they fail to provide the defendant with a prompt post-seizure probable cause hearing. See Note, RICO Post-Indictment Restraining Orders: The Process Due Defendants, 60 N.Y.U. L. Rev. 1162, 1166 (Dec. 1985).

A number of federal circuits have imposed a requirement of a post-restraining order probable cause hearing in order to preserve the constitutionality of the statute. In United States v Crozier, 674 F2d 1293 (9th Cir. 1982) the Ninth Circuit vacated an ex pane restraining order, holding that

Even when exigent circumstances permit an ex pane restraining order, the government may not wait until trial to produce adequate grounds for forfeiture.

Section 848(d) authorizes the district court to enter such restraining orders as it deems proper. The section does not specify requirements for determining when a restraining order should issue. In the absence of specific language to the contrary, the district court must apply the standards of Rule 65 of the Federal Rules of Civil Procedure, which requires an immediate hearing whenever a temporary restraining order has been granted ex parte.

Id., at 1297. Accord United States v Spilotro, 680 F.2d 612 (9th Cir. 1982) (where government made an inadequate evidentiary showing at post-restraining order probable cause hearing, case is remanded for a further evidentiary hearing, with directions to vacate the restraining order if government fails to show it is likely to convince a jury beyond a reasonable doubt that defendant is guilty of crimes charged.) United States v Long, 654 F.2d 911, 915 (3rd Cir. 1981); United States v Beckham, 562 F. Supp. 488,489-90 (E.D. Mich. 1983).

The period between seizure and the commencement of proceedings

The forfeiture statutes specifically prohibit a property owner from bringing a replevin action (a civil suit seeking return of the property) when the property is seized under a forfeiture statute. See 21 U.S. Code Sec. 881(c). As a trade-off, the statutes require the government to file the forfeiture "promptly," although that requirement has no teeth in it. The length of time the government can delay before filing the forfeiture complaint is limited only by the Due Process clause and $8850. (See the Speedy Trial defense above). The problem is, $8850 motions can't be filed until the government files the complaint or libel of information, as the case may be. Claimants are often rendered destitute by seizure and indefinite detention of their automobiles.

Post-seizure probable cause determinations

The problem with allowing warrantless seizures of properly for forfeiture is that, in most courts, there is no probable cause determination at any time prior to trial. Because trials usually occur years after the seizure, the res is detained for an extended period of time without any determination of probably cause by a disinterested magistrate. When the res is the claimant's only automobile, or even virtually all of the claimant's assets-as RICO and CCE authorize this deprivation is extremely severe. The amount of process "due" under the Due Process Clause increases with the severity of the deprivation. Numerous law review articles in recent years have argued that the denial of a right to a post-seizure probable cause hearing is unconstitutional. See Strafer, End-Running the Fourth Amendment: Forfeiture Seizures of Real Property Under Admiralty Process, 25 Amer. Crim. L. Rev. 59 (1987); Note, Criminal Forfeiture and the Necessity for a Post-Seizure Hearing: Are CCE and RICO Rackets for the Government?, 57 St. Johns L. Rev. 776-804 (Summer 1983); Kandaras, Due Process and Federal Property Forfeiture Statutes: The Need for Immediate Post-Sei zure Hearing, 34 Southwestern L.J. 925 (1981).

In Patterson v District of Columbia, D.C. Superior Court # CA 5726-87, Judge Rufus King III ruled that the Fourth Amendment prohibition against unreasonable sei zures requires that a forfeiture claimant receive a prompt probable cause determination on demand. (Order dock eted January 6,1989), 117 W.L.R. 741, (April 13, 1989). This probable cause determination appears to be some thing in the nature of a Gerstein proffer. As of this writing, however, the remedy has not been implemented in Superior Court. Judge King's ruling was certified as a final appealable order, but as of this writing the D.C. government has not filed notice of appeal, although they have stated their intention to do so.

There is no corresponding remedy available yet in the federal courts, except where local court rules provide such a remedy. In both Federal and D.C. courts, motions for return of property, filed in the criminal case under Criminal Rule 41, sometimes provide a probable cause determination, although they are often ineffectual.

Notice

In federal cases, the DEA and FBI send out a one page notice telling the property owner to file a claim in writing with their office and to include with the claim a sum of money-the "cost bond"-which is $2500 or 10 percent of the value of the property seized, whichever is less (but at least $250)-if they want a judicial determination in the forfeiture case. They also advise claimants that they can opt for administrative determination of the forfeiture, through a petition for remission or mitigation, in which case they need not pay the cost bond.

Property owners should be advised to beware of this cheaper solution. Petitions for remission and/or mitigation are denied in the vast majority of cases, without a hearing or even written reasons for the denial, and the agency's discretion is unreviewable. See Administrative Remedies, below.

The notice of seizure may be sent at any time. In most cases it arrives six months or more after seizure. Claimants have to be on the lookout for its arrival, because they have only a short period of time to react. The claimant must respond by filing a claim and cost bond within 20 days after the first publication date of the published notice of seizure. 19 U.S.C. Sec. 1608. The notice is mailed out to the claimant just before the first publication date. The mailed notice specifies the publication in which the published notice will appear.

Forfeiture statutes and rules generally require published notice, although that is of negligible value to property owners. The Supreme Court has held that published notice alone is not sufficient notice under the due process clause when the names and addresses of owners of interests in property are readily ascertainable. In Mullane v Central Hanover Bank, 339 U.S. 306, (1950), the Supreme Court set the standard for notice:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections ... The notice must be of such a nature as reasonably to convey the required information ... and it must afford a reasonable time for those interested to make their appearance....

But when notice is a person's due, process which is a mere gesture is not due process.

Id. at 314-15.

The Supreme Court has found the names and addresses of claimants to be "readily ascertainable" by the government when they are available in the government's deed records and tax rolls. Schroeder v. City of New York, 371 U.S. 211 (1962). See also Vance u United States, 676 F.2d 183, 186 (5th Cir. 1982) (where police officers and DEA agents knew claimant's name and address, published notice alone was insufficient); Jaekel v United States, 304 F. Supp. 993 (S.D.N.Y 1969) (same).

When a claimant is a prisoner incarcerated by the same state that is attempting to forfeit his/her property, the government has knowledge of the person's whereabouts and must send notice to the person at his jail/prison address. Robinson v Hanrahan, 409 U.S. 38 (1972).

The federal government plays loose games with notice, and in a large percentage of cases, defects in notice can be found which can be grounds for collaterally attacking (in court) an administrative forfeiture. However, that adds exponentially to the trouble and expense of litigation. To be on the safe side every claimant should be warned to look out for certified mail, and to pick it up at the earliest opportunity. A prisoner should have someone watching his/her mail at his/her last residence. It is also a good idea to notify the government in writing, that a claimant is represented by counsel, and of any change of address, including any place of incarceration.

Claim and cost bond

Under federal law, in order to have the right to a judicial proceeding, a claimant must, along with his/her written claim, post a cost bond ($2500 or 10 percent of the value of the property, whichever is lower, but not less than $250). 19 U.S.C. 1608. The written claim does not have to fit any particular requirements as to format or contents, but should specify the seizure numbers and file numbers listed on the notice of the seizure, identify the person making the claim, state their interest in the property (i.e., owner, lienholder, etc.), an demand a judicial proceeding. The cost bond may be in cash, certified check, or "satisfactory sureties." 21 C.F.R. 1316.76(b).

Indigent claimants may file a Declaration In Support of Motion To Proceed In Forma Pauperis (use form 4 in the appendix to the Federal Rules of Appellate Procedure if the DEA is handling the case; the FBI uses its own forms which you can order from them over the phone).

Posting a cost bond does not result in the return of the property pending trial-instead, the bond is literally the cost the property owner has to pay for the judicial forfeiture proceedings. The cost bond is used as a security for the payment of storage fees, court fees, marshal's costs, etc. 21 C.F.R. 1316.76(b). If the claimant loses, he/she also loses the portion of the bond the court determines is necessary to offset court costs of the proceeding. If he/she wins, the bond is returned. Under 28 U.S.C. 2465, the successful claimant in a forfeiture case is not entitled to costs against the government if the court issues a certificate of probable cause for the forfeiture. United States u One 1969 Plymouth Two-DoorHardtop, 3608 Supp. 488 (M.D. Ala. 1973).

If the claimant does not file and post the bond or file an IFP declaration within the short period of time after receipt of notice, he/she forever loses the right to judicial proceedings in the forfeiture case. The agencies have been hardnosed about this time deadline, even though it so arbitrary. Because the agency's discretion is generally considered unreviewable, absent some reason that made it impossible to file a claim and cost bond on time (such as lack of notice) it would probably be very difficult to challenge an agency's refusal to allow extra time to respond. If constitutional grounds can be found for affording relief, the claimant can file a collateral attack on the forfeiture under 42 U.S.C. 1983. A claimant who fails to file a timely claim and cost bond can still file a petition for remission or mitigation with the agency, however. See Menkarell u Bureau of Narcotics, 463 F.2d 88 (3rd Cir. 1972).

Cost bonds have been held unconstitutional by a number of courts, although the current trend has been to uphold them.

Administrative forfeiture procedure

The notices sent out by the agency (DEA, FBI or customs) only sketchily describe the remedies claimants may pursue. They explain that one can avoid paying the cost bond by pursuing administrative remedies and waiving the judicial remedies. What it doesn't make clear is that if the claimant files only a petition for remission there will be no hearing, and the decision of the agency is unreviewable. The only evidence that will be considered is what they submit with their petition for remission. There is no discovery of the government's case. The administrative agencies deny petitions for remission or mitigation in a large number of cases, without giving detailed reasons. Claimants may pursue this administrative route along with the judicial route if they post the cost bond or qualify for in forma pauperis treatment.

Petitions for remission and/or mitigation must comply with the requirements of 21 C.F.R. 1316.79 through 1316.81, in DEA and FBI cases, or 19 C.F.R. 171-12 through 171.14 for customs seizures.

Judicial forefeiture procedure

The complaint or libel of information

In federal cases, judicial forfeiture proceedings are commenced with the filing of a complaint. The contents of the complaint are governed by Rules C and E of the Federal Supplemental Rules for Certain Admiralty and Maritime Claims (hereinafter cited as the Supplemental Rules). Rule C(2) provides:

In actions in rem the complaint shall be verified on oath or solemn affirmation. It shall describe with reasonable particularity the property that is the subject of the action and state that it is within the district or will be during the pendency of the action. In actions for the enforcement of forfeitures for violation of any statute of the United States the complaint shall state the place of seizure and whether it was on land or on navigable waters, and shall contain such allegations as may be required by the statute pursuant to which the action is brought.

The drafters of the rule did not, however, take the logical step farther and require a judicial determination of probable cause, based upon the allegations in the verified complaint, before the warrant of seizure would issue. When Rule C was amended in 1985, the drafters imposed a requirement of a probable cause determination but specifically exempted forfeiture cases from that provision. See Supplemental Rule C(3).

Supplemental Rule E(2) provides:

The complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.

If the complaint does not comply with the Supplemental Rule C(2) and E(2) requirements of verification and specificity it is subject to dismissal. One 1980 Ford Mustang, 648 F. Supp. 1305, 1308 (N.D. Ind. 1986). United States u $39,000 in Canadian Currency, 801 R2d 1210, 1222 (10th Cir. 1986). The court may dismiss the complaint on these grounds sua sponte if it notifies the government of the intent to dismiss and gives the government an opportunity to amend the complaint. One 1980 Ford Mustang, supra, at 1308.

Claim and answer to the complaint or libel of information

Under federal law, the claimant must file:

A claim within 10 days after process has been executed, or within such additional time as may be allowed by the court, and shall serve an answer within 20 days after the filing of the claim. The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action. If the claim is made on behalf of the person entitled to possession by an agent, bailee, or attorney, it shall state that the agent, bailee or attorney is duly authorized to make the claim.

Supplemental Rule C(6).

Failure to file a claim under Rule C(6) deprives the claimant of standing to defend against the forfeiture. United States u Fourteen Handguns, 524 F. Supp. 395, 397 (S.D. Texas 1981); United States v. One 1980 Ford Mustang, 648 F. Supp. 1305, 1307 (N.D. Indiana 1986).

The claim required here should not be confused with the claim which is filed with the administrative agency along with the cost bond. It has been held that the claim submitted to the administrative agency is insufficient to satisfy the Rule C(6) requirement, because it was not submitted to the court. One 1980 Ford Mustang, supra. In that case, however, the court permitted the late filing of the claim under the Rule C(6) provision that allows a filing "within such additional time as shall be allowed by the court" because the government had alleged no facts to show probable cause.

Under District of Columbia law, there is no requirement that the claimant file a separate claim. Although Rule 71 A-I(c) states that "if no answer or claim" is filed before the return date a default may be entered, the word "claim" does not appear elsewhere in the rule. In accepted practice in Superior Court, one document, commonly entitled "Claim and Answer to Libel" or merely "Answer," is filed in response to a Libel of Information.

Under federal law, the form and contents of the answer are governed by the ordinary rules of civil procedure. See Federal and Superior Court rules 8, 9, 10, 12 and 13, and Superior Court rule 3-I.

Counterclaims

There is conflicting authority as to whether claimants may counterclaim against the government for loss of use and depreciation of the res during the period of detention. Where the forfeiture is later determined to be void, it is clear that the government is liable for depreciation. United States u One 1965 Chevroletlmpala Convertible, 475 R2d 882 (6th Cir. 1973). However, a federal statute immunizes the federal government and officials from liability if the court finds there was reasonable cause for the seizure and issues a certificate of probable cause. 28 U.S.C. § 2465. If there was no probable cause for the seizure, then the detention would be a temporary taking for which just compensation must be paid. Depreciation is an item of damages in takings cases. See also 28 U.S.C. § 2680(c), exempting from Federal Tort Claims Act's waiver of sovereign immunity claims arising out of the detention of goods or merchandise by any officer of customs or excise or other law enforcement officers. See Kosak u United States, 465 U.S. 850 (1984).

Jury demand

Claimants in forfeiture cases have a right to a jury trial. United States u One 1976 Mercedes Benz, 618 F.2d 453 (7th Cir. 1980); One Plymouth Automobile v United States, 165 R2d 186 (5th Cir. 1948); Pernell u Southall Realty, 416 U.S. 363 (1974). However, when the government has impounded an automobile, or another asset which depreciates rapidly or is vital to the claimant's livelihood, most claimants want a trial as soon as possible. Demanding a jury trial puts the case on a slower track-the first trial date in Superior Court Civil II jury calendar cases is often three years or more after the answer is filed, compared to one and a half to two years on the nonjury calendar.

A jury trial is waived unless demanded in the answer or within ten days after filing the answer. The jury demand must specify a jury of twelve, or else a jury of six will be provided. A jury demand fee of $75 must be paid at the time of filing of the demand, unless the court has granted permission to proceed in forma pauperis. If the case does not go to trial, the $75 may be refunded.

Vacating default judgments

 

Motions to vacate a default judgment are governed by Civil Rule 55(c). The motion must be accompanied by

 

A verified answer setting up a defense sufficient if proved to bar the claim in whole or in part...... NNo answer need be filed if the movant accompanies the motion with a settlement agreement or a proposed consent judgment signed by both parties.... [nor] when the movant asserts a lack of subject-matter or personal jurisdiction or when the default was entered after the movant had filed an answer."

SCR-Civil Rule 55(c). The Supreme Court has held that it is unconstitutional to require a litigant who has not received notice to file a verified answer in order to vacate a default judgment:

[A] judgment entered without notice or service is constitutionally infirm....

Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, "it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits." Coe v Armour Fertilizer Works, 237 U.S. 413 (1915).

Peralta v Heights Medical Center, Inc., 485 U.S. 80 (1988).

Discovery

Discovery in civil forfeiture cases is governed by the civil rules, which are much broader than criminal discovery rules. Often the government cites this ability of the criminal defendant to obtain discovery, through the forfeiture case, of information which he/she would not be entitled to in the criminal case, in arguing for a stay of forfeiture proceedings pending the disposition of related criminal charges.

The government's discovery from the defendant is also broader under the civil rules; however, the privilege against self-incrimination applies to forfeitures. In United States v. United States Coin & Currency, 401 U.S. 715, 719, 723 (1971) the Supreme Court so held, quoting Boyd u United States, 116 U.S. 616, 634 (1886):

"proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal" for Fifth Amendment purposes... [T]he Fifth Amendment's privilege may properly be invoked in these proceedings.

The Sixth Circuit, in United States v United States Currency, 626 R2d 11 (6th Cir. 1980), held that the Fifth Amendment privilege against self-incrimination could be asserted in forfeiture cases, but that the privilege does not require dismissal of the forfeiture action merely because Fifth Amendment privileges may be asserted in answering interrogatories.

The Supreme Court has declared that: ". . . government cannot penalize assertion of the constitutional privilege against self-incrimination by imposing sanctions to compel testimony which has not been immunized . . . the touchstone of the Fifth Amendment is compulsion, and direct economic sanctions and imprisonment are not the only penalties capable of forcing the self-incrimination which the Amendment forbids." Lelkowitz v Cunning ham, 431 U.S. 801, 806,97 S. Ct. 2132, 2136, 53 L. Ed. 2d 1 (1977)...... The Supreme Court has disapproved of procedures which require a party to surrender one constitutional right in order to assert another." Wehling v Columbia Broadcasting System, 608 R2d 1084, 1088, (5th Cir. 1979).

Id. at 14.

Failure to cooperate in discovery

A large number of pro se forfeiture claimants fail to answer interrogatories, perhaps because they do not understand how to answer them or they are afraid to incriminate themselves. In such cases, the government generally files a motion to compel discovery under SCR-Civil Rule 37(a), requesting sanctions.

A party who prevails on a motion to compel discovery is entitled to attorneys fees and costs for filing the motion, under Superior Court Civil Rule 37(a)(4). However, the rule exempts the government (D.C. or federal) from having to pay attorneys fees or costs for abuse of discovery. SCR-Civil Rule 37(f). The equivalent Federal Rule has been repealed.

Motions

In civil forfeiture cases, motions practice is governed by the civil rules. However, quasi-criminal issues, such as denial of speedy trial or the suppression of evidence, do not fit tidily into any of the civil motions rules. Because there are issues of fact which must be resolved by an evidentiary hearing, a motion for summary judgment is not appropriate for these issues. The motions authorized by Civil Rule 12 are also inappropriate. The Supreme Court cases applying these criminal procedural requirements to forfeiture cases do not discuss what kind of motions to raise them in.

Burden of proof

In criminal forfeiture cases, such as those brought under RICO (18 U.S.C. § 1963), the Continuing Criminal Enterprise statute (21 U.S.C. § 848), and the criminal forfeiture provision of the federal drug laws (21 U.S.C. § 853), the burden of proof is on the government to prove beyond a reasonable doubt that the property is subject to forfeiture.

Under both federal and District of Columbia civil forfeiture statutes the burden of proof is on the government to show "probable cause," as it is defined in the criminal courts to support a suppression motion or a search warrant. Brynegar u United States, 338 U.S. 160, 175-76 (1949). Once the government establishes probable cause the burden shifts to the claimant to show by the preponderance of the evidence that the property is not subject to forfeiture. 33 D.C. Code 552(d)(3)(G).

The constitutionality of applying the civil burden of proof to forfeiture cases has been considered in: United States v. $2500,689 F.2d 10 (2nd Cir.1982), and Bramble u Richardson, 498 F.2d 968 (10th Cir.), cert. denied, 419 U.S. 1069 (1974). However, both cases held only that proof beyond a reasonable doubt was not constitutionally required in civil forfeiture cases. Neither specifically addressed the issue of whether probable cause was too low a burden of proof for the deprivation of such valuable property rights.

Stays during pendency of criminal case

Because the broad civil discovery rules applicable in civil forfeiture cases can be used to obtain evidence which is not discoverable under the criminal rules, the government often requests a stay of the civil forfeiture proceeding pending the disposition of the criminal case. Such stays should not be granted automatically, for undue delay in holding the forfeiture trial implicates the due process clause. United States u Banco Cafetero Panama, 797 F2d 1154 (2d Cir. 1986).

In Landis v. North American Co., 299 U.S. 248 (1936), the Supreme Court stated:

[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.... True, the suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both. Considerations such as these, however, are counsels of moderation rather than limitations upon power. There are indeed opinions, though none of them in this court, that give color to a stricter rule. Impressed with the likelihood or danger of abuse, some courts have stated broadly that, irrespective of particular conditions, there is no power by a stay to compel an unwilling litigant to wait upon the outcome of a controversy to which he is a stranger. . . .

Such a formula, as we view it, is too mechanical and narrow. All the cases advancing it could have been adequately disposed of on the ground that discretion was abused by a stay of indefinite duration in the absence of a pressing need.

299 U.S. at 254-55.

When the forfeiture case involves a third party not involved in the criminal action the calculus is different. When other means could be employed to protect the criminal prosecution from the risk of revealing undiscoverable information through civil discovery, such as protective orders, in camera discovery, sealed files, and other restrictions on dissemination of discovery materials, the government's need for the stay is easily outweighed by the claimant's due process rights under United States u $8,850, 461 U.S. 555 (1983).

Expediting the trial

There is currently no procedure available to expedite the trial date, in either the federal or local system. Even though the quasi-criminal nature of forfeiture actions requires speedy trial the federal courts make a practice of advancing trial dates in forfeiture cases in front of nonquasi criminal cases.

Still there are things that can be done to speed up the process. The squeaky wheel doctrine often helps. Filing a motion for return of property or a motion to dismiss for denial of speedy trial may bring immediate results. Even if the motion is denied, at least it makes a record that the claimant is asserting his/her rights to a speedy resolution of the case.

Stays pending appeal

Stays of orders of forfeiture, or orders denying forfeiture, pending appeal are governed by Civil Rule 62.

It has been held by some courts that when a claimant loses a forfeiture trial and fails to obtain a stay of the court order, the resulting sale or disposal of the vehicle deprives the court of jurisdiction over the appeal. United States u $57,480.05,722 F.2d 1457 (9th Cir.1984); Alyeska Pipe line Service Co. u Vessel Bay Ridge, 703 F.2d 381(1983); Canal Steel Works v One Drag Line Dredge, 48 F.2d 212 (5th Cir.), cert. denied, 284 U.S. 647 (1931). However, the improper destruction or release of the res despite a valid stay does not deprive the court of jurisdiction over the appeal. The Rio Grande, 90 U.S. 458 (1874).

This rule is particularly harsh in a situation where the res is a depreciating asset such as a car and there exists no mechanism by which a substitute res (such as a surety bond) can be posted to preserve the jurisdiction of the court. An extension of this rule to situations where the claimant prevails at trial and the government appeals produces absurd results. This is another area in which the court should tailor a remedy-such as a stipulation of jurisdiction, or a substitute res, so that the value of the property is not disipated during the pendency of the appeal.

Motions for return of property and other collateral remedies

At present, a claimant can still file a motion for return of property, under criminal rule 41 in the pending criminal case-at least if he/she is a defendant in that case. In Re Seizure Warrant (Appeal of Cyril Onwuasoanya), 830 F.2d 372 (D.C. Cir. 1987). Some judges have been denying such motions without a hearing, requiring instead that the government file a forfeiture action within a specified time period. However, a few favorable rulings have been obtained at the trial level giving claimants some remedy for the prolonged detention of property seized without a warrant, and without any determination of probable cause to believe it is forfeitable. In two recent cases in Washington, D.C. the claimants filed motions for the return of property in the criminal case, pursuant to Criminal Rule 41, and succeeded in getting a hearing on the motion before the criminal judge.

In United States u Zarbough, 115 D. Wash. L. Rptr. 273 (February 11, 1987), Judge Taylor granted a motion for return of property with regard to a seized car, but denied return of the money seized, when the facts supported only the offense of simple possession. The court pointed out that Section 33-552(C) "specifically exempts from forfeiture conveyances used solely in connection with the unlawful possession of any controlled substances, . . . " Id. at 275.

In United States v Golden, Judge Von Kann, who had taken the guilty plea of the criminal defendant to a misdemeanor, held that the automobile, which was owned by the defendant's father, would be returned to him pending trial in the forfeiture case, upon the posting of a bond by the owner sufficient to cover the losses to the District in the event the government prevailed at trial. In so ruling, the court stated:

In short, the evidence presented at the hearing overwhelmingly established that the use of this automobile to facilitate the transportation of controlled substances was carried on wholly without the owner's knowledge or consent. Accordingly, absent additional evidence which might change this conclusion, the subject vehicle is indeed exempt from [forfeiture] under D.C. Code Sec. 33-552.

[I]n view of the strong showing made by defendant at the hearing on this motion, it seems unfair to require that the vehicle remain parked on the District's impoundment lot for the months or years that may pass before the civil forfeiture proceeding is concluded. Doing so would deprive defendant and his family of the use of the vehicle for a long time while its value gradually declines. Even if they ultimately recover the vehicle after successfully prevailing in the libel action, there is no provision in Section 33-552 to compensate them for the loss of the use of the vehicle during this time or its diminished value. United States u Golden, 115 D. Wash. L. Rptr. 733, 738, 739 (April 13, 1987).

The fact that other judges have summarily denied relief should not deter attorneys from pursuing relief through a motion for return of property. Even when the court denies a hearing on the motion, usually the court will require the government to file a forfeiture action by a certain time, which expedites the case to some extent. Furthermore, filing a motion for return of property was recognized by the Supreme Court, in $8850, as a way to assert a demand for a speedy trial for purposes of a later filed $8850 motion.

Because the forfeiture statutes themselves bar claimants from filing replevin actions (civil suits for the return of property), the claimant generally has only two options to secure relief-through a motion for return of property in the criminal case or through the forfeiture action itself. A number of courts have held that claimants who receive notice of the forfeiture process cannot ignore those procedures and file a collateral suit; in many of those cases the court states that it lacks jurisdiction to entertain a collateral suit.

However, in some situations courts do allow collateral suits.

Lack of notice

Where the property was forfeited without constitutionally adequate notice to the claimant, the courts must provide relief, either by vacating the default judgment, or by allowing a collateral suit. See Seguin v Eide, 720 F2d 1046 (9th Cir. 1983), on remand after judgment vacated, 462 U.S.1101,103 S. Ct. 2446 (1983); Wiren v Eide, 542 F2d 757 (9th Cir. 1976). Menkarell v. Bureau of Narcotics, 463 F2d 88 (3rd Cir. 1972); Jaekel v United States, 304 F Supp. 993 (S.D.N.Y 1969); Glup v United States, 523 F2d 557, 560 (8th Cir. 1975).

In the past there was some authority for the proposition that, even when claimants are deprived of due process by forfeiture of their property without notice, they have to show that they have a meritorious defense in order to get relief. See, e.g., Cepulonis v United States, 543 F. Supp. 451 (E.D.N.Y 1982) (where claimant was deprived of due process for failure to receive notice of forfeiture, he was only entitled to nominal damages where he could not show he had a meritorious defense.) However, that case was overruled by the Supreme Court in Peralta v Heights Medical Center, Inc., 485 U.S. 80, (1988). Peralta held that:

[I]t is not denied by appellee that under our cases, a judgment entered without notice or service is constitutionally infirm.

The Texas courts nevertheless held, as appellee urged them to do, that to have the judgment set aside, appellant was required to show that he had a meritorious defense, apparently on the ground that without a defense, the same judgment would again be entered on retrial and hence appellant had suffered no harm from the judgement entered without notice. But this reasoning is untenable. As appellant asserts, had he been given notice of the suit, he might have impleaded the employee whose debt had been guaranteed, worked out a settlement, or paid the debt. He would also have preferred to sell his property himself in order to raise funds rather than suffer it being sold at a constable's auction.

Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, "it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits." Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S. Ct. 625, 629, 59 L. Ed. 1027 (1915). As we observed in Armstrong v. Manzo, 380 U.S. 545, 552 (1965), only "wip[ing] the slate clean ... would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place." The Due Process Clause demands no less in this case.

Peralta, supra, 108 U.S. at 898-99, 900.

Void forfeitures

When a forfeiture is void, there is no question but that the claimant may collaterally attack it and obtain return of the property or compensation for its value. The Supreme Court declared a gambling forfeiture statute to be void in United States u United States Coin & Currency, 401 U.S. 715 (1971). The statute in that case required gamblers to register and pay a gambling tax, and provided for forfeiture of proceeds as an additional sanction. The Court relied on the criminal cases of Marchetti v. United States, 390 U.S. 39 (1968) and Grosso u United States, 390 U.S. 62 (1968) in holding that penalizing the failure to register as a gambler "unconstitutionally burdened the privilege against self-incrimination," and therefore the statute violated the Fifth Amendment. Because the forfeiture statute was itself unconstitutional, the forfeiture was void.

Other cases finding a forfeiture statute to be constitutionally deficient have read into the statute the requirements of the constitution, and thus avoided vacating the forfeitures obtained under the statute. However, individual forfeitures may nevertheless be vacated if the statute as applied to that case violated the Constitution. Whether those would be void or voidable is another question.

 RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR


  The prosecutor in a criminal case shall:

  (a) refrain from prosecuting a charge that the prosecutor knows is not
supported by probable cause;

  (b) make reasonable efforts to assure that the accused has been advised of
the right to, and the procedure for obtaining, counsel and has been given
reasonable opportunity to obtain counsel;

  (c) not seek to obtain from an unrepresented accused a waiver of important
pretrial rights, such as the right to a preliminary hearing;

  (d) make timely disclosure to the defense of all evidence or information
known to the prosecutor that tends to negate the guilt of the accused or
mitigates the offense and, in connection with sentencing, disclose to the
defense and to the tribunal all mitigating information known to the
prosecutor, except when the prosecutor is relieved of this responsibility by
a protective order of the tribunal;

  (e) not subpoena a lawyer in a grand jury or other criminal proceeding to
present evidence about a past or present client unless the prosecutor believes:

     (1) the information sought is not protected from disclosure by an applicable privilege;

     (2) the evidence sought is essential to the successful completion of an
ongoing investigation or prosecution; and

     (3) there is no other feasible alternative to obtain the information;

  (f) except for statements that are necessary to inform the public of the
nature and extent of the prosecutor's action and that serve a legitimate law
enforcement purpose, refrain from making extrajudicial comments that have a
substantial likelihood of heightening public condemnation of the accused and
exercise reasonable care to prevent investigators, law enforcement
personnel, employees or other persons assisting or associated with the
prosecutor in a criminal case from making an extrajudicial statement that
the prosecutor would be prohibited from making under Rule 3.6 or this Rule.


Comment

  [1] A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate. This responsibility carries with it specific
obligations to see that the defendant is accorded procedural justice and
that guilt is decided upon the basis of sufficient evidence. Precisely how
far the prosecutor is required to go in this direction is a matter of debate
and varies in different jurisdictions. Many jurisdictions have adopted the
ABA Standards of Criminal Justice Relating to the Prosecution Function,
which in turn are the product of prolonged and careful deliberation by
lawyers experienced in both criminal prosecution and defense. Applicable law
may require other measures by the prosecutor and knowing disregard of those
obligations or a systematic abuse of prosecutorial discretion could
constitute a violation of Rule 8.4.

  [2] In some jurisdictions, a defendant may waive a preliminary hearing and
thereby lose a valuable opportunity to challenge probable cause.
Accordingly, prosecutors should not seek to obtain waivers of preliminary
hearings or other important pretrial rights from unrepresented accused
persons. Paragraph (c) does not apply, however, to an accused appearing pro
se with the approval of the tribunal. Nor does it forbid the lawful
questioning of an uncharged suspect who has knowingly waived the rights to
counsel and silence.

  [3] The exception in paragraph (d) recognizes that a prosecutor may seek
an appropriate protective order from the tribunal if disclosure of
information to the defense could result in substantial harm to an individual
or to the public interest.

  [4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in
grand jury and other criminal proceedings to those situations in which there
is a genuine need to intrude into the client-lawyer relationship.

  [5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial
statements that have a substantial likelihood of prejudicing an adjudicatory
proceeding. In the context of a criminal prosecution, a prosecutor's
extrajudicial statement can create the additional problem of increasing
public condemnation of the accused. Although the announcement of an
indictment, for example, will necessarily have severe consequences for the
accused, a prosecutor can, and should, avoid comments which have no
legitimate law enforcement purpose and have a substantial likelihood of
increasing public opprobrium of the accused. Nothing in this Comment is
intended to restrict the statements which a prosecutor may make which comply
with Rule 3.6(b) or 3.6(c).

   [6]  Like  other lawyers, prosecutors are subject to Rules 5.1  and  5.3,
which  relate to responsibilities regarding lawyers and nonlawyers who  work
for  or  are associated with the lawyer's office. Paragraph (f) reminds  the
prosecutor  of  the importance of these obligations in connection  with  the
unique  dangers of improper extrajudicial statements in a criminal case.  In
addition, paragraph (f) requires a prosecutor to exercise reasonable care to
prevent  persons  assisting or associated with the  prosecutor  from  making
improper extrajudicial statements, even when such persons are not under  the
direct  supervision  of  the  prosecutor. Ordinarily,  the  reasonable  care
standard will be satisfied if the prosecutor issues the appropriate cautions
to law-enforcement personnel and other relevant individuals.


[Amended effective September 1, 2006.]

RPC RULE 1.1 COMPETENCE


    A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.

Comment

Legal Knowledge and Skill

  [1] In determining whether a lawyer employs the requisite knowledge and
skill in a particular matter, relevant factors include the relative
complexity and specialized nature of the matter, the lawyer's general
experience, the lawyer's training and experience in the field in question,
the preparation and study the lawyer is able to give the matter and whether
I it is feasible to refer the matter to, or associate or consult with, a
lawyer of established competence in the field in question. In many
instances, the required proficiency is that of a general practitioner.
Expertise in a particular field of law may be required in some circumstances.

  [2] A lawyer need not necessarily have special training or prior
experience to handle legal problems of a type with which the lawyer is
unfamiliar. A newly admitted lawyer can be as competent as a practitioner
with long experience. Some important legal skills, such as the analysis of
precedent, the evaluation of evidence and legal drafting, are required in
all legal problems. Perhaps the most fundamental legal skill consists of
determining what kind of legal problems a situation may involve, a skill
that necessarily transcends any particular specialized knowledge. A lawyer
can provide adequate representation in a wholly novel field through
necessary study. Competent representation can also be provided through the
association of a lawyer of established competence in the field in question.

  [3] In an emergency a lawyer may give advice or assistance in a matter
in which the lawyer does not have the skill ordinarily required where
referral to or consultation or association with another lawyer would be
impractical. Even in an emergency, however, assistance should be limited to
that reasonably necessary in the circumstances, for ill-considered action
under emergency conditions can jeopardize the client's interest.

  [4] A lawyer may accept representation where the requisite level of
competence can be achieved by reasonable preparation. This applies as well
to a lawyer who is appointed as counsel for an unrepresented person.
See also Rule 6.2.

Thoroughness and Preparation

  [5] Competent handling of a particular matter includes inquiry into and
analysis of the factual and legal elements of the problem, and use of
methods and procedures meeting the standards of competent practitioners. It
also includes adequate preparation. The required attention and preparation
are determined in part by what is at stake; major litigation and complex
transactions ordinarily require more extensive treatment than matters of
lesser complexity and consequence. An agreement between the lawyer and the
client regarding the scope of the representation may limit the matters for
which the lawyer is responsible. See Rule 1.2(c).

Maintaining Competence

  [6] To maintain the requisite knowledge and skill, a lawyer should keep
abreast of changes in the law and its practice, engage in continuing study
and education and comply with all continuing legal education requirements
to which the lawyer is subject.


[Amended effective September 1, 2006.]

This section is for all the odds & ends I find concerning laws in my case. It is also where I put things so that I can learn, it is a lot of information, it is sometimes confusing but ultimately it will help you as well if you know these things. That is most times the ONLY power any court has over you- Lack of Knowledge. It is your right, & your responsibility as a Citizen of The Untied State of America to know these things, these principals & laws are written  in blood, the blood of Americans who came before you, who laid down there lives so that you may live in a "Free" country. Unfortunately the people involved in the Judicial system have found ways to abuse the very laws that were intended to protect our rights, this is the ultimate evil of living in our society & until we fight back we are no more than cattle, being shuffled along to slaughter

Criminal procedures

Criminal procedures are safeguards against the indiscriminate application of criminal laws and the wanton treatment of suspected criminals. Specifically, they are designed to enforce the constitutional rights of criminal suspects and defendants, beginning with initial police contact and continuing through arrest, investigation, trial, sentencing, and appeals.

The main constitutional provisions regarding criminal procedure can be found in Amendments IV, V, VI, and VIII to the U.S. Constitution. The Fourth Amendment covers the right to be free from unreasonable searches and arrests:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. A warrant is a paper that shows judicial approval of a search or arrest. The U.S. Supreme Court has held that the Fourth Amendment does not require a warrant for all searches; rather, it prohibits unreasonable searches. All warrantless searches are unreasonable unless they are executed pursuant to one of several exceptions carved out by the Court.

The Fifth Amendment covers an array of procedural concerns, including the death penalty, multiple trials for the same criminal offense (Double Jeopardy), Self-Incrimination, and the general right to due process. It reads, in relevant part,

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.

The Sixth Amendment addresses the procedures required at trial. It provides,

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Finally, the Eighth Amendment states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

At first, these amendments were construed as applying only to federal prosecutions. The states were free to enact criminal procedures contrary to them until the passage of the Fourteenth Amendment in 1868. The Fourteenth Amendment forbids the states to "deprive any person of life, liberty, or property, without due process of law" (§ 1). Under the Fourteenth Amendment, states must provide most of the criminal safeguards found in the Fourth, Fifth, Sixth, and Eighth Amendments.

Federal courts must comply with all the criminal procedures listed in the amendments to the Constitution. For state courts, the U.S. Supreme Court has adopted a "selective incorporation" approach to determine precisely what process is due a criminal defendant. Under this approach, only fundamental rights are protected.

According to the Court, fundamental rights in criminal procedure include freedom from unreasonable searches and seizures; freedom from Cruel and Unusual Punishment; assistance of counsel; protection against self-incrimination; confrontation of opposing witnesses; a Speedy Trial; compulsory process for obtaining witnesses; a jury trial for prosecutions for cases in which the defendant could be incarcerated; and protection against double jeopardy. The only protections that are not specifically required of states are the Eighth Amendment prohibition against excessive bail and the Fifth Amendment requirement that infamous crimes be prosecuted by grand jury.

The judicial interpretation of fundamental rights has allowed states considerable leeway in shaping their own criminal procedures. Although their procedural rules and statutes are similar in many respects, federal and state legislatures are responsible for their own criminal procedures, and procedures vary from state to state. State and federal governments may not limit the protections guaranteed by the Constitution, but they may expand them.

Automobile Exception to the Warrant Requirement

An example of this principle may be seen with the so-called automobile exception to the Constitution's search-warrant requirement. Under the automobile exception, states may allow the warrantless search of an automobile, except for the trunk, if the police officer reasonably believes that the vehicle holds evidence of a crime. The U.S. Supreme Court has determined that this exception is not a violation of the Fourth Amendment because drivers have a "reduced expectation of privacy" and because a vehicle is inherently mobile. This reduced expectation of privacy also allows police officers with Probable Cause to search a car to inspect drivers' and passengers' belongings that are capable of concealing the object of the search, even if there is no proof that the driver and passenger were engaged in a common enterprise. Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999).

However, states are not required to adopt the automobile exception. The New Hampshire Supreme Court, for example, ruled that all warrantless searches are unreasonable except for a group of well-defined such searches, and this group does not include warrantless Automobile Searches (State v. Sterndale, 139 N.H. 445, 656 A.2d 409 [1995]). Thus, in New Hampshire, a police officer may not base the warrantless search of a vehicle on the mere fact that the place to be searched is a vehicle. New Hampshire, therefore, provides expanded protections under the Fourth Amendment.

Conversely, a state may not allow the search of any vehicle without reasonable suspicion. A vehicle search that is conducted in the absence of reasonable suspicion would be an infringement of guaranteed Fourth Amendment protection, and a court would strike down such an infringement as unconstitutional. A state law may not diminish the scope of the automobile exception by authorizing a warrantless search of an entire vehicle following a traffic stop in which the driver is issued a citation for speeding. Although law enforcement may conduct a full vehicle search if the defendant is formally arrested, the issuance of a traffic citation does not justify the considerably greater intrusion of a full-fledged search. Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998)

Investigation

Criminal prosecutions officially begin with an arrest. However, even before the arrest, the law protects the defendant against unconstitutional police tactics. The Fourth Amendment protects persons against unreasonable searches and seizures by law enforcement officers. Generally, a Search Warrant is required before an officer may search a person or place, although police officers may lawfully prevent a criminal suspect from entering his or her home while they obtain a search warrant. Illinois v. McArthur, U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001).

Police officers need no justification under the Fourth Amendment to stop persons on the street and ask questions, and persons who are stopped for questioning are completely free to refuse to answer any such questions and to go about their business. But the Fourth Amendment does prohibit police officers from detaining pedestrians and conducting any kind of search of their clothing without first having a reasonable and articulable suspicion that the pedestrians are engaged in criminal activity. The U.S. Supreme Court has held that reasonable suspicion is provided for a stop-and-frisk type of search when a pedestrian who, upon seeing police officers patrolling the streets in an area known for heavy narcotics trafficking, flees from the officers on foot. Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)

The warrant requirement is waived for many other searches and seizures as well, including a search incident to a lawful arrest; a seizure of items in plain view; a search to which the suspect consents; a search after a Hot Pursuit; and a search under exigent or emergency circumstances. Nor does the Fourth Amendment require the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that the vehicle is forfeitable contraband. Florida v. White, 526 U.S. 559, 119 S. Ct. 1555, 143 L. Ed. 2d 748 (1999).

However, the Fourth Amendment does prohibit police use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home. Such devices are typically employed to determine whether a suspect is using a high-intensity lamp to grow marijuana in his or her home. The U.S. Supreme Court has ruled that the use of thermal-imaging devices constitutes a "search" within the meaning of the Fourth Amendment, and thus their use is presumptively unreasonable without a warrant. Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).

The Supreme Court also ruled that a state hospital conducted an unreasonable search when it undertook warrantless and nonconsensual urine testing of pregnant women who had manifested symptoms of possible cocaine use. The governmental interest in using the threat of criminal sanctions to deter pregnant women from using cocaine did not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid search warrant. Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001).

The U.S. Supreme Court's Fourth Amendment Jurisprudence is splintered over the constitutionality of using fixed checkpoints or roadblocks to conduct warrantless and suspicionless vehicle seizures. The Court has held that the Fourth Amendment allows law enforcement to perform warrantless vehicle seizures at a fixed checkpoint along the nation's border to intercept illegal Aliens, so long as the search is reasonable in light of the "totality of the circumstances". United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). The Court also ruled that roadblocks may be used to intercept drunk drivers. However, the Court rejected on Fourth Amendment grounds the use of a roadblock to perform warrantless and suspicionless searches of automobiles for the purpose of drug interdiction. Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).

When an officer seeks a search warrant, he or she must present evidence to a judge or magistrate. The evidence must be sufficient to establish probable cause that evidence of a crime will be found at the place to be searched. Probable cause is a level of belief beyond mere suspicion but short of full certainty. Whether an officer can establish probable cause to obtain a search warrant depends on the facts of the case. For example, if an arrested person is discovered with a small amount of marijuana, this alone will not justify a search of the person's home. However, if the person is discovered with a large amount of marijuana, the quantity may support the suspicion that more marijuana may be found in the person's home, and the large amount may be used as the basis for obtaining a search warrant.

Police officers seeking a search warrant must state, under oath and with particularity, the facts supporting probable cause. If the search warrant is later found to be lacking in probable cause, or if important statements made by the officers are found to have been intentionally misleading, the evidence seized pursuant to the warrant might not be admissible at trial. Moreover, if the search goes beyond the scope granted in the warrant, the evidence seized as a result of that encroachment might not be admissible at trial. For example, if the warrant states that the officers may search only the suspect's apartment, they may not expand the search to a storage closet outside the apartment.

In executing a search warrant pursuant to the Fourth Amendment, law enforcement officers may enter private property without knocking or announcing their presence if the officers have reasonable suspicion that knocking and announcing would be dangerous, futile, or would inhibit an effective criminal investigation by allowing the destruction of evidence. While the lawfulness of a "no-knock" entry does not depend on whether property is subsequently damaged during the search, excessive or unnecessary destruction of property in the course of the search might violate Fourth Amendment rights, even though the entry itself is lawful and the fruits of search are not subject to suppression. United States v. Ramirez, 523 U.S. 65, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998).

The Exclusionary Rule

The Exclusionary Rule protects the right to be free from unreasonable searches. This rule holds that otherwise incriminating subject matter that police officers have obtained illegally must be excluded from evidence. Along with the right of appeal, the exclusionary rule is a defendant's chief remedy for a violation of his or her rights in a criminal procedure.

The Stages OF A Criminal Prosecution

A criminal prosecution usually begins with an arrest. In some cases, the arrest is the culmination of a police investigation; in other cases, it may occur with minimal police investigation. Either way, the manner in which the police investigate suspects and collect evidence is almost always an issue in a criminal case.

During an arrest, a criminal suspect is advised of his or her Miranda rights. These include the right to remain silent and the right to an attorney. After arrest, the defendant is subjected to a cursory search for weapons and contraband. The defendant is then driven to the nearest jail, police station, or detention center for booking. During booking, the defendant is photographed and fingerprinted, and the arrest is entered into the police log, or blotter. The defendant is informed of the charge or charges if she or he has not already been so informed. The defendant is also allowed to make one telephone call. After being stripped of all personal items, belts, and shoelaces, the defendant may be placed in a holding cell to await presentation before a magistrate. For misdemeanors, which are less serious than felonies, the defendant may be released with the posting of a cash bond and a promise to appear before a magistrate.

While the person waits for this first appearance before the court, a police officer prepares a complaint against the suspect. The complaint is a document that describes the alleged crime. It is screened by prosecutors and then submitted to the court. The court reviews the complaint to determine whether there is sufficient legal basis to hold the person in custody. If the magistrate finds that the facts alleged do not establish Probable Cause to believe that the suspect committed the crime, the magistrate must dismiss the complaint and order the release of the person from custody.

The first appearance must be held without unnecessary delay. Many jurisdictions impose a twenty-four-hour limit on initial detention before a hearing, but this limit may extend to seventy-two hours if the arrest is made on a Friday.

In the first appearance, the magistrate informs the defendant of the charge or charges as set forth in the complaint. The magistrate also informs the defendant of his or her rights, such as the right to remain silent and the right to an attorney. If the defendant in a felony case is not already represented by private counsel and is unable to afford private counsel, the court appoints an attorney. This is usually a public defender, but it may be a private defense attorney paid by the court or working free of charge. In most states, the attorney meets with and represents the defendant in the first appearance. The defendant in a misdemeanor case does not always qualify for a free attorney.

If the magistrate finds probable cause, the magistrate sets bail in the first appearance. Bail consists of the conditions the defendant will have to meet to gain release from custody pending trial. Acceptable bail is usually cash or other liquid assets. Bail is intended to guarantee the defendant's appearance at trial. In some jurisdictions, if the magistrate determines that the defendant presents a danger to the community or may attempt to flee, the magistrate may refuse to set bail. In such a case, the defendant is forced to remain in jail until the case is resolved.

If the charge is a misdemeanor, the first appearance serves as an Arraignment, where the defendant enters a plea of guilty or not guilty. The magistrate then allows the defendant to post bail or leave on her or his own recognizance, with the understanding that the defendant will reappear for trial.

Following the first appearance, a felony case proceeds to a Preliminary Hearing. Before this hearing is held, the prosecutor and the defense attorney communicate to see if there is any possibility of a plea bargain, or a mutually acceptable disposition of the case. If a deal can be reached, and it is acceptable to the defendant, it is presented to the court for approval at the preliminary hearing.

The preliminary hearing is conducted by the magistrate to determine whether the prosecution has sufficient evidence to continue the prosecution. Unlike the first appearance, the preliminary hearing is adversarial. The prosecutor relies on witnesses to present the prosecution's evidence, and the defendant may do the same. Both sides are allowed to question, or cross-examine, the opposing side's witnesses. After this hearing, the court may dismiss the charges if they are not supported by probable cause.

In some states, review by a Grand Jury is also required before a felony prosecution may continue; this review is not required for a misdemeanor prosecution. A grand jury is a group of private citizens summoned to review, in private, the prosecution's evidence. Generally, a grand jury consists of more jurors than a trial jury, which usually numbers twelve. In a grand jury proceeding, the prosecutor presents the evidence against the defendant to the grand jurors, and the grand jurors may ask questions of the prosecutor. The prosecutor then presents a proposed indictment, or a written accusation sworn to by the prosecutor. If a majority of the grand jury finds no probable cause for the prosecution, it returns a no bill, or a refusal of the indictment. If a majority finds probable cause, the grand jury returns a true bill, and prosecution continues.

Following a true-bill finding by a grand jury, the prosecution files the indictment with the trial court. Where no grand jury was required and only a preliminary hearing was held, the prosecution files an information, which is similar in form to an indictment but written and approved by the prosecutor alone.

After the indictment or information courts review criminal convictions for trial court errors. They rarely overturn verdicts on evidentiary bases. Even if an appeals court finds a trial court error, it will affirm the conviction if it feels the error did not affect the outcome of the case.

Generally, state court defendants appeal to a first court of appeals, then to the highest state court (usually the state supreme court), and then to the U.S. Supreme Court. In federal cases, defendants appeal to a U.S. court of appeals and then to the U.S. Supreme Court. The review of appeals after the first appeal is discretionary; that is, the court may decline to hear the case.

After exhausting all appeals, a defendant sentenced to incarceration may collaterally attack the conviction and sentence. This means the defendant attacks the conviction in an action other than an appeal. The most common method of collateral attack is submission of a petition for a writ of Habeas Corpus. This is a civil action against the warden of a prison, challenging the legality of the imprisonment. If the court approves the writ, the inmate must be set free.

A habeas corpus petition is not an appeal; courts will grant a writ of habeas corpus only if the defendant can prove that the court that sent the petitioner to prison was actually powerless to do so or that such detention violated the petitioner's constitutional rights. Generally, an inmate will ask for the writ in state court before filing in federal court.

All states also have a procedure in place to hear claims of newly discovered evidence. However, no relief is granted if the new evidence would not have made a difference in the verdict.

Some inmates are given early release from prison, or Parole. Parole is granted by the state or federal parole board or correctional board. It allows the inmate to finish the prison sentence in the community. The court requires a paroled defendant, or parolee, to meet certain conditions on release and to meet regularly with a parole officer for the duration of the sentence.

In some states, if the conviction was for first-degree murder, the defendant may be sentenced to death. Where the sentence is death and the defendant has lost all appeals and collateral attacks, the defendant may ask the governor of the state for clemency. For federal crimes, the president retains the power of clemency. Clemency is forgiveness and mercy, and it usually comes in the form of a pardon or of a commutation of a sentence. A pardon releases the inmate from custody and restores his or her legal rights and privileges, such as voting and gun ownership. A commutation decreases or suspends an inmate's sentence. A commutation is a lesser form of clemency because it does not restore the legal rights of the inmate.

Cross-references

Criminal Procedure; Double Jeopardy.

The exclusionary rule deters police misconduct in searches. Without the admission of the evidence at trial, the case against the alleged criminal may be dismissed, and the officer's actions in gathering that evidence will have been wasted effort. The exclusionary rule also prohibits the use of evidence obtained in violation of other constitutional rights, such as statements of the accused that are elicited in violation of the right against self-incrimination.

The most important exception to the exclusionary rule is the good-faith exception. Essentially, the good-faith exception allows the use of evidence obtained in violation of a person's constitutional rights if the officer who obtained the evidence acted in a reasonable manner. If evidence is illegally seized and does not fall under an exception but is erroneously admitted at trial by the judge, a guilty verdict will be reversed on appeal if the prosecution cannot show Beyond a Reasonable Doubt that the evidence did not contribute to the conviction.

When officers have collected evidence pursuant to a search warrant, the burden is on the defendant to show that the warrant lacked probable cause or that other problems tainted the collection process. For a warrantless search, the prosecution bears the burden of proving that the search was reasonable. However, before evidence seized during a warrantless search will be excluded from trial, the defendant must prove that he or she had a reasonable expectation of privacy in the place that was searched. Homeowners, for example, enjoy a reasonable expectation of privacy in items that they keep inside their homes. However, houseguests might not have a similar expectation of privacy in the homes they are visiting, especially when they do not stay overnight and their sole purpose for being inside the house is to participate in criminal activity such as a drug transaction. Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). Disputes over the application of the exclusionary rule are usually resolved at a pretrial proceeding called a "suppression hearing."

Arrest

The general rule is that to make an arrest, the police must obtain an arrest warrant. However, if an officer has probable cause to believe that a crime has been committed, and there is no time to obtain a warrant, the officer may make a warrantless arrest. An officer also may make a warrantless arrest of persons who commit a crime in the officer's presence.

An invalid arrest is not generally a defense to prosecution. However, if an arrest is unsupported by probable cause, evidence obtained pursuant to the invalid arrest can be excluded from trial.

When an arrest is made, the arresting officer must read the Miranda warnings to the arrestee. These warnings apprise an arrestee of the right to obtain counsel and the right to remain silent. If these warnings are not read to an arrestee as soon as he or she is taken into custody, any statements that the arrestee makes after the arrest may be excluded from trial.

After the arrest, the police must follow certain guidelines during their investigations. For example, if the arrestee requests an attorney or expresses a wish to remain silent, the officers must honor the request and refrain from questioning the arrestee. However, the police may attempt to confirm that they have arrested the right person. They may do so by showing a victim a photo array that includes a picture of the suspect; by arranging a lineup of live persons at the police station, with the suspect included in the lineup; or by organizing a show-up, which is a personal showing of the arrestee to the victim shortly after commission of the crime.

Where photo arrays or lineups are used, the police must refrain from highlighting the arrestee. For example, if an arrestee is white, an officer may not show a witness a series of photographs in which all of the other subjects are black. If an identification procedure is too suggestive, any identification by the victim may be excluded from trial.

Trial

At trial, a criminal defendant has a number of constitutional rights, including the Right to Counsel, the right to a public trial, the right to a trial by jury, the right to a fair and impartial trial, the right to confront witnesses in court, the right to compulsory process to obtain witnesses, and the Privilege against Self-Incrimination. Violation of any of these rights may result in the reversal or vacation of a conviction on appeal.

There are exceptions and nuances to most of the procedural trial rights. Under the Sixth Amendment, if a defendant is indigent, or unable to afford an attorney, the court will appoint an attorney. This right applies only for felony charges and cases in which actual imprisonment may be imposed. Accordingly, an indigent who is not represented by counsel at trial may not be sentenced to incarceration, regardless of whether conviction of the offense warrants incarceration (Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 [1979]). However, a defendant will not be appointed an attorney if the he or she is able to pay for a private one.

A criminal defendant has the right to an attorney from the first critical stage of the criminal process through the end. An attorney must be present at the request of the defendant during such events as interrogation, lineup identifications after charges have been filed, preliminary hearings before the court, trial, and sentencing.

The Sixth Amendment right to counsel includes the mandate that a defendant's counsel must be effective and not incompetent. Attorneys must generally consult with their clients about trial strategy and tactics, in order to be effective and competent. However, a criminal defense attorney's failure to consult with a client before deciding against filing a post-conviction appeal does not necessarily render his or her assistance ineffective or incompetent. While the better practice would be for attorneys to always consult with their clients regarding the possibility of appeal, the Sixth Amendment only requires such consultation when there is reason to believe either (1) that any rational defendant would want to appeal; or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).

A defendant is free to reject counsel and to proceed pro se, or by self-representation. However, a judge may disregard the defendant's request and appoint an attorney if the pro se defendant engages in dilatory or disruptive tactics. Additionally, state courts of appeal may disregard a defendant's request to represent himself or herself on appeal without violating Sixth Amendment rights. Martinez v. Court of Appeals of California, Fourth Appellate Dist.,, 528 U.S. 152, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000)

The Sixth Amendment right to a trial by jury does not guarantee a jury in all cases. The right generally applies only in "serious cases"—which are generally considered to be those in which conviction can result in incarceration for more than six months. When a jury trial is not guaranteed, the trial court judge will hear the case and make a decision.

In federal court, a jury verdict must be unanimous. This directive is not applicable to the states. In some states, a vote of nine out of twelve jurors is sufficient to convict or to acquit. States may even provide as few as six jurors. Six is the minimum, because juries should represent a cross section of the community. If a jury of six is used, the verdict must be unanimous.

Under the Confrontation Clause of the Sixth Amendment, a defendant has the right to cross-examine all prosecution witnesses at trial. In limited circumstances, the out-of-court statements made by a witness who is absent from court may be offered through the testimony of a third party. Known as Hearsay statements, this type of evidence may be admitted if the statements were made under oath and subject to cross-examination by the defendant's attorney, and if the witness is unavailable to testify at trial despite the best efforts of the prosecution. However, a defendant's Sixth Amendment right to confront and to cross-examine the accuser in open court is violated when the prosecution introduces the incriminating hearsay statements of a non-testifying co-defendant in a joint trial, even if the defendant's name is redacted from the incriminating statements, because juries will often realize that the redacted portions are referring to the defendant. Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998)

The Fifth Amendment privilege against self-incrimination extends from the moment of custody. A defendant need not make statements or testify at trial, and that right is absolute. However, with a sufficient showing of need by the prosecution, self-incrimination may come from sources other than the defendant's statements or testimony. For example, a court may force a defendant to appear before witnesses for identification; to provide handwriting or blood or voice or fingerprint samples; or to repeat certain words or gestures.

However, the mere fact that a defendant has pled guilty to a criminal act does not waive the privilege against self-incrimination during the sentencing phase. As a result, a defendant has the right to remain silent, during sentencing, about facts that bear upon the severity of the sentence, and the sentencing court may not draw an adverse inference from the defendant's silence. Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999).

If the defendant does testify, he or she may be questioned by the prosecutor about previously inadmissible statements that contradict that testimony. Thus, the Fifth Amendment privilege against self-incrimination will not apply if the defendant has made statements that are contrary to testimony given on the witness stand. Nor does the Fifth Amendment prohibit a prosecutor from calling the jury's attention during closing arguments to the fact that the defendant had the opportunity to hear all other witnesses testify and to tailor his testimony accordingly. The Fifth Amendment prohibits the prosecution from commenting to the jury about the defendant's failure to testify at trial, but it does not prohibit the prosecution from making comments that impeach the defendant's credibility after her or she has testified. Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 294 (2000).

The Compulsory Process Clause of the Sixth Amendment gives a defendant the right to obtain favorable witnesses. This means that the defendant has the same power as the prosecutor to subpoena witnesses. However, if the government, acting in Good Faith, deports a potential defense witness (i.e., makes the witness leave the jurisdiction), it does not violate compulsory process rights.

The Sixth Amendment grants the right to "an impartial jury of the State and district wherein the crime shall have been committed." This clause gives a defendant the right to question jurors for bias and prejudice. The right belongs to both the defense and the prosecution, and it is exercised in a proceeding called Voir Dire. In voir dire, both sides are allowed to question jurors and to reject a certain number of jurors, until the jury pool is complete. The rejection of jurors may not be based on race, sex, or national origin.

At trial, the prosecution has the burden of proving the defendant's guilt beyond a Reasonable Doubt. This level of belief is abstract and has been described in a number of ways. The best definition is that any doubt regarding the defendant's guilt should not be fanciful or conjured up to avoid delivering a verdict of guilty. This standard is reserved for criminal trials; it is a higher standard than "a preponderance of the evidence" and "clear and convincing evidence," the burdens of proof used in civil trials.

The vast majority of criminal cases are resolved with a plea of guilty before, or sometimes during, trial. Prosecutors may use their discretion to reduce charges in exchange for a guilty plea, in an arrangement known as a pleabargain. A plea of guilty cannot be revoked after a court has accepted it. Generally, it is appealable only if the right to a trial was not knowingly, intelligently, and voluntarily waived.

Prosecutors are often content with a pleabargain because it satisfies the criminal justice system's goal of encouraging people to accept responsibility for their actions, and because pleabargains avoid costly, time-consuming trials. A prosecutor also may agree to defer prosecution and to drop charges after a specified period if the defendant fulfills certain conditions. A defense attorney may seek a plea-bargain if the evidence against the defendant is overwhelming. Both sides are free to reject any plea-bargains and to proceed to trial.

If a defendant is acquitted of all criminal charges, the prosecution may not subsequently prosecute the defendant for the same act that produced those charges. This right is derived from the prohibition of double jeopardy that is found in the Fifth Amendment. In a jury trial, double jeopardy protection attaches when the jury is impaneled and sworn in. For bench trials, or cases presented to a judge only, double jeopardy protection begins when the first witness is sworn in. Under double jeopardy protection, the prosecution may not deliberately cause a mistrial if the trial is going poorly for the prosecution. However, if the jury cannot reach a verdict, and the court declares a mistrial, the defendant may be retried for the same offense.

Generally, a defendant may not face both federal and state prosecutions for the same offense. One exception to this general rule is that a defendant in state court may face charges in federal court for the same act with the permission of the attorney general, but only if the offense is within the jurisdiction of the federal court. For example, a conviction for driving while intoxicated raises no federal concerns; federal laws do not address that offense. Thus, the attorney general may not authorize the federal prosecution of a defendant who has been acquitted in state court of driving while intoxicated. The acquitted defendant may, however, face a civil lawsuit for damages, because civil actions do not put a person "in jeopardy of life or limb," and therefore double jeopardy does not apply to them (U.S. Const. amend. V, cl. 2). Similarly, the Double Jeopardy Clause is not violated when a defendant faces both criminal and administrative proceedings arising out of a single wrongful act. Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).

Postconviction

Sentencing After conviction, a defendant may be allowed to remain free until sentencing. The decision on this issue is made by the court, and it depends on the nature of the conviction and the nature of the defendant's perceived character. For example, a court will not allow a convicted murderer or rapist to remain free until sentencing. A court may, however, allow a nonviolent convict to post a bond and to remain free pending sentencing.

Sentencing for a felony conviction is usually heard by the court in a separate hearing held several days or weeks after the verdict. At a felony sentencing hearing, the prosecution makes a recommendation of punishment, and the defendant usually argues for leniency. For lesser offenses, such as misdemeanors and violations, sentencing may immediately follow the verdict.

Judges generally have wide discretion to craft individualized sentences within statutory guidelines. However, states violate defendants' Sixth Amendment right to trial by jury in capital cases when they authorize the sentencing judge alone to determine the presence or absence of aggravating factors required for the imposition of the death penalty. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). And where a capital defendant's future dangerousness is at issue and the only sentencing alternative to death available to the jury is life imprisonment without the possibility of Parole, due process requires the court to allow the defendant to inform the jury of his or her parole ineligibility, either by a jury instruction or in arguments by counsel. Shafer v. South Carolina, 532 U.S. 36, 121 S. Ct. 1263, 149 L. Ed. 2d 178 (2001).

Sentencing can include any combination of community service, Forfeiture of property, fines, and incarceration. Courts may also exercise their sentencing discretion and order a term of Probation.

Under state and federal forfeiture laws, law enforcement authorities are authorized to confiscate property of certain criminal defendants. Under federal law, persons who have been convicted of controlled-substance violations or Racketeering schemes may be forced to relinquish much of their Personal Property, including real estate, stocks, cash savings, and vehicles. States also authorize forfeitures for the violation of certain state laws, such as those regarding controlled substances and the solicitation of prostitution.

Probation releases a convicted defendant into the community under the supervision of a probation officer. This type of sentence is generally reserved for first-time offenders, to give them an opportunity to reform and rehabilitate.

A probationer will be called back into court and sentenced to serve a term of incarceration if he or she breaks the terms of the probation. For example, suppose that a person who has been convicted of marijuana possession and sentenced to probation has been ordered to complete treatment for chemical dependency and to report to a probation officer twice a week. If the probationer fails to complete these requirements, the court may order the defendant to serve a period of incarceration for the marijuana offense.

If probation is revoked, the probationer is entitled to counsel. However, an indigent probationer is not automatically entitled to a court-appointed attorney. Whether a probationer receives free counsel depends on a number of factors. Generally, the court will appoint an attorney if an indigent probationer denies committing the alleged act and faces lengthy imprisonment.

Under the Eighth Amendment prohibition of cruel and unusual punishment, sentencing and confinement in jail or prison may not involve torture or barbarity. The Eighth Amendment is also construed as meaning that the punishment should fit the crime. For example, it would be cruel and unusual punishment to sentence a person who has been convicted of trespassing to the same punishment as a person who has been convicted of Homicide.

With regard to the amount of punishment that may be inflicted, the prohibition against cruel and unusual punishment also bars punishment that is clearly out of proportion to the offense committed. The U.S. Supreme Court has considered the issue of proportionality, particularly in the context of the death penalty. In Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), the Court held that death was a disproportionate penalty for the crime of raping an adult woman.

But the high court has held that the death penalty itself is not inherently cruel, instead describing it as "an extreme sanction, suitable to the most extreme of crimes" (Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 [1976]). Modern methods of administering Capital Punishment, such as shooting, hanging, electrocution, and lethal injection, have been upheld as constitutional by federal and state courts. The U.S. Supreme Court has held that statutes providing a mandatory death sentence for certain degrees or categories of murder are unconstitutional because they preclude sentencing authorities from considering aspects of a particular defendant's character or record, or from considering circumstances that might mitigate a particular crime (see Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 [1978]). In Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), the Court held that the Eighth Amendment prohibits states from inflicting the penalty of death upon a prisoner who is insane.

The U.S. Supreme Court has also ruled that the execution of mentally retarded criminals violates the Eighth Amendment's guarantee against cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Citing "evolving standards of decency," the Court stated that its decision was informed by a national consensus reflected in deliberations of the American public, legislators, scholars, and judges. Atkins overruled Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), a decision rendered just 13 years earlier. However, in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national consensus prohibiting the execution of juvenile offenders over age 15.

Appeal Contrary to popular belief, the U.S. Constitution does not guarantee the right to appeal a criminal conviction. Most states do provide the right to an appellate review of criminal convictions, to protect against trial court errors. However, many states limit their review of state court convictions by hearing only short oral arguments and issuing decisions without explanation.

Federal statutes grant criminal defendants in federal court the right to appeal. Only one review is granted as a matter of right, and this is to a U.S. court of appeals. Review of state and federal convictions in the U.S. Supreme Court is discretionary.

Where a criminal appeal is granted by state law as a matter of right, the court is required to appoint an attorney to represent indigent defendants on appeal. An indigent defendant is also entitled to a free trial transcript or other means of affording appellate review; this applies to any indigent defendant, including one who is punished only with a fine.

On appeal, the burden is on the defendant to prove that an error occurred in the trial or that the evidence was insufficient to convict. Appellate courts reviewing a defendant's challenge to the appropriateness of a particular sentence must generally apply a deferential standard of review. Sentencing courts are in a better position than are appellate courts to decide whether a particular set of individual circumstances justifies the imposition of a given sentence under the sentencing guidelines, the U.S. Supreme Court has observed. Burford v. United States, 532 U.S. 59, 121 S. Ct. 1276, 149 L. Ed. 2d 197 (2001). Defendants must raise all claims of trial error in their first appeal in order to preserve the claims for future appeals.

Voir dire

Voir dire consists of oral questions asked of prospective jurors by the judge, the parties, or the attorneys, or some combination thereof. This oral questioning, often supplemented by a prior written questionnaire, is used to determine whether a potential juror is biased, knows any of the parties, counsel, or witnesses, or should otherwise be excluded from jury duty. Voir dire is a tool used to achieve the constitutional right to an impartial jury, but it is not a constitutional right in itself.

Typically, a number of prospective jurors are called to the jury box, given an oath, and then questioned as a group by counsel or the court. Local federal rules generally provide for questioning by the judge. Individual or sequestered voir dire is used in rare cases where extensive publicity may potentially damage a defendant's case; some jurisdictions mandate it in death penalty cases. A prospective juror must answer questions fully and truthfully but cannot be faulted for failing to disclose information that was not sought.

The purpose of voir dire is not to educate jurors but to enable the parties to select an impartial panel. Therefore, voir dire questions should test the capacity and competency of the jurors without intentionally or unintentionally planting prejudicial matter in their minds. Trial judges have wide latitude in setting the parameters of questioning, including the abilities to determine the materiality and propriety of the questions and to set the time allowed for voir dire.

A party may move for dismissal for cause to remove any potential juror shown to be connected to or biased in the case. A court may sustain counsel's request to strike a juror for cause, in which case the juror steps aside and another is called. Or a judge may overrule a challenge for cause if a suitable reason has not been sufficiently established. Challenges for cause are not limited in number.

Each side also exercises peremptory challenges to further shape the composition of the jury. Peremptory challenges are used to dismiss a prospective juror without the need to provide a reason for dismissal. Statutes or court rules typically set the number of peremptory challenges afforded to a party.

Voir dire also describes a court's preliminary examination of a prospective witness whose competency or qualifications have been challenged.

voir dire (vwahr [with a near-silent "r"] deer) n. from French "to see to speak," the questioning of prospective jurors by a judge and attorneys in court. Voir dire is used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve (knowledge of the facts, acquaintanceship with parties, witnesses or attorneys, occupation which might lead to bias, prejudice against the death penalty, or previous experiences such as having been sued in a similar case). Actually one of the unspoken purposes of the voir dire is for the attorneys to get a feel for the personalities and likely views of the people on the jury panel. In some courts the judge asks most of the questions, while in others the lawyers are given substantial latitude and time to ask questions. Some jurors may be dismissed for cause by the judge, and the attorneys may excuse others in "peremptory" challenges without stating any reason. 2) any hearing outside the presence of the jury held during trial. (See: jury, peremptory challenge)

The right to challenge

The right to challenge a juror without assigning, or being required to assign, a reason for the challenge.During the selection of a jury, both parties to the proceeding may challenge prospective jurors for a lack of impartiality, known as a challenge for cause. A party may challenge an unlimited number of prospective jurors for cause. Parties also may exercise a limited number of peremptory challenges. These challenges permit a party to remove a prospective juror without giving a reason for the removal.

Peremptory challenges provide a more impartial and better qualified jury. Peremptory challenges allow an attorney to reject a potential juror for real or imagined partiality that would be difficult to demonstrate under the challenge for cause category. These challenges, however, have become more difficult to exercise because the U.S. Supreme Court has forbidden peremptory strikes based on race or gender.

Parties do not have a federal constitutional right to exercise peremptory challenges. Peremptory challenges are granted by statute or by case law. The number of challenges is usually determined by statute, but some jurisdictions allow the trial court to grant additional peremptory challenges. In federal court each side is entitled to three peremptory challenges. If more than two parties are involved in the proceeding, the court may either grant additional challenges or restrict the parties to the minimum number of challenges.

Peremptory challenges came under legal attack in the 1980s. Critics claimed that white prosecutors used their peremptory challenges to remove African Americans from the jury when the criminal defendant was also African American because the prosecutors thought that the potential jurors would be sympathetic to a member of their own race. This constituted racial discrimination and a violation of the Fourteenth Amendment's equal protection clause.

The U.S. Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), prohibited prosecutors from excluding prospective jurors on the basis of race. Under the Batson test, a defendant may object to a prosecutor's peremptory challenge. The prosecutor then must "come forward with a neutral explanation for challenging black jurors." If the prosecutor cannot offer a neutral explanation, the court will not excuse the juror.

The Court extended this holding in criminal proceedings in two later cases. In Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), the Court broadened the Batson rule by stating that a defendant need not be of the same race as the excluded juror in order to successfully challenge the juror's exclusion. In Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), the Court held that the defense's exercise of peremptory challenges to strike African American jurors on the basis of their race was equally forbidden. Previously, the court had ruled in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991), that in civil trials a private party could not exclude prospective jurors on account of their race by using peremptory challenges. This series of decisions makes any racial exclusion in jury selection constitutionally suspect.

The Supreme Court has also forbidden peremptory challenges based on gender. In J. E. B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), the Court ruled that striking jurors on the basis of gender serves to perpetuate stereotypes that are prejudicial and based on historical discrimination. No overriding State Interest justified peremptory challenges on the basis of gender. Permitting gender-based strikes could also have undermined the Batson holding, because gender might be used as an excuse for racial discrimination.

In an extension of Batson, the Supreme Court of Connecticut ruled that the Equal Protection Clause barred the prosecutor from striking prospective jurors based on their religious affiliation. The court, in State v. Hodge, 726 A.2d 531 (Conn.1999), distinguished religious beliefs and religious affiliations. It held that litigants could strike prospective jurors whose religious beliefs would prevent them from performing their duties as jurors.

Further readings

Beck, Cobrun R. 1998."The Current State of the Peremptory Challenge." William and Mary Law Review 39 (February).

Fahey, William F. 1996. "Peremptory Challenges." Federal Lawyer 43 (October).

Hoffman, Morris B. 1997. "Peremptory Challenges Should Be Abolished: A Trial Judge's Perspective." University of Chicago Law Review 64 (summer).

Schwartz, Edward P., and Warren F. Schwartz. 1996. "The Challenge of Peremptory Challenges." Journal of Law, Economics & Organization 12 (October).

Cross-references

Case Law; Federal Courts; Jurisdiction; Jury; Trial.

peremptory challenge n. the right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason. This challenge is distinguished from a "challenge for cause" (reason) based on the potential juror admitting bias, acquaintanceship with one of the parties or their attorney, personal knowledge about the facts, or some other basis for believing he/she might not be impartial. The number of peremptory challenges for each side will differ based on state law, the number of parties to a case, and whether it is a civil or criminal trial. The usual phraseology used by lawyers exercising the challenge is "Juror number seven may be excused." (See: jury, challenge for cause, voir dire)

Reasonable doubt                                                                                        

A standard of proof that must be surpassed to convict an accused in a criminal proceeding.Reasonable doubt is a standard of proof used in criminal trials. When a criminal defendant is prosecuted, the prosecutor must prove the defendant's guilt Beyond a Reasonable Doubt. If the jury—or the judge in a bench trial—has a reasonable doubt as to the defendant's guilt, the jury or judge should pronounce the defendant not guilty. Conversely, if the jurors or judge have no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.

Reasonable doubt is the highest standard of proof used in court. In civil litigation the standard of proof is either proof by a preponderance of the evidence or proof by clear and convincing evidence. These are lower burdens of proof. A preponderance of the evidence simply means that one side has more evidence in its favor than the other, even by the smallest degree. Clear and convincing evidence is evidence that establishes a high probability that the fact sought to be proved is true. The main reason that the high proof standard of reasonable doubt is used in criminal trials is that criminal trials can result in the deprivation of a defendant's liberty or in the defendant's death, outcomes far more severe than occur in civil trials where money damages are the common remedy.

Reasonable doubt is required in criminal proceedings under the due process clause of the Fifth Amendment to the U.S. Constitution. In in re winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), the U.S. Supreme Court ruled that the highest standard of proof is grounded on "a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free."

The reasonable doubt standard is not used in every stage of a criminal prosecution. The prosecution and defense need not prove beyond a reasonable doubt that every piece of evidence offered into trial is authentic and relevant. If a prosecutor or defendant objects to a piece of evidence, the objecting party must come forward with evidence showing that the disputed evidence should be excluded from trial. Then the trial judge decides to admit or exclude it based on a preponderance of the evidence presented. A similar procedure employing a preponderance standard is used when a party challenges a variety of evidence, such as coerced confessions, illegally seized evidence, and statements extracted without the furnishing of the so-called Miranda warning.

The reasonable doubt standard is inapplicable to still other phases of a criminal prosecution. Lower standards of proof are permissible in Parole revocation proceedings, proceedings to revoke Probation, and prison inmate disciplinary proceedings.

The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.

If the jurors or judge have no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.

Beyond a reasonable doubt

The term connotes that evidence establishes a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the accused's guilt, but only that no Reasonable Doubt is possible from the evidence presented.

Beyond a reasonable doubt is the highest standard of proof that must be met in any trial. In civil litigation, the standard of proof is either proof by a preponderance of the evidence or proof by clear and convincing evidence. These are lower burdens of proof. A preponderance of the evidence simply means that one side has more evidence in its favor than the other, even by the smallest degree. Clear and Convincing Proof is evidence that establishes a high probability that the fact sought to be proved is true. The main reason that the high proof standard of reasonable doubt is used in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in his or her death. These outcomes are far more severe than in civil trials, in which money damages are the common remedy.

Cross-references

Clear and Convincing Proof; Due Process of Law; Preponderance of Evidence; Reasonable Doubt.

beyond a reasonable doubt adj. part of jury instructions in all criminal trials, in which the jurors are told that they can only find the defendant guilty if they are convinced "beyond a reasonable doubt" of his or her guilt. Sometimes referred to as "to a moral certainty," the phrase is fraught with uncertainty as to meaning, but try: "you better be damned sure." By comparison it is meant to be a tougher standard than "preponderance of the evidence" used as a test to give judgment to a plaintiff in a civil (non-criminal) case. (See: reasonable doubt, moral certainty, conviction)

 Clear and convincing proof                                                                              

A standard applied by a jury or by a judge in a nonjury trial to measure the probability of the truthfulness of particular facts alleged during a civil lawsuit.

Clear and convincing proof means that the evidence presented by a party during the trial is more highly probable to be true than not and the jury or judge has a firm belief or conviction in it. A greater degree of believability must be met than the common standard of proof in civil actions, preponderance of the evidence, which requires that the facts more likely than not prove the issue for which they are asserted.

The standard of clear and convincing proof—also known as "clear and convincing evidence"; "clear, convincing, and satisfactory"; "clear, cognizant, and convincing"; and "clear, unequivocal, satisfactory, and convincing"—is applied only in particular cases, primarily those involving an equitable remedy, such as reformation of a deed or contract for mistake.

Due Process                                                                                              

A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, Arbitrary, or capricious.

The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property. The due process clause of the Fifth Amendment, ratified in 1791, asserts that no person shall "be deprived of life, liberty, or property, without due process of law." This amendment restricts the powers of the federal government and applies only to actions by it. The Due Process Clause of the Fourteenth Amendment, ratified in 1868, declares,"[N]or shall any State deprive any person of life, liberty, or property, without due process of law" (§ 1). This clause limits the powers of the states, rather than those of the federal government.

The Due Process Clause of the Fourteenth Amendment has also been interpreted by the U.S. Supreme Court in the twentieth century to incorporate protections of the Bill of Rights, so that those protections apply to the states as well as to the federal government. Thus, the Due Process Clause serves as the means whereby the Bill of Rights has become binding on state governments as well as on the federal government.

The concept of due process originated in English Common Law. The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions and was widely accepted in England. The Magna Charta, an agreement signed in 1215 that defined the rights of English subjects against the king, is an early example of a constitutional guarantee of due process. That document includes a clause that declares, "No free man shall be seized, or imprisoned … except by the lawful judgment of his peers, or by the law of the land" (ch. 39). This concept of the law of the land was later transformed into the phrase "due process of law." By the seventeenth century, England's North American colonies were using the phrase "due process of law" in their statutes.

The application of constitutional due process is traditionally divided into the two categories of Substantive Due Process and procedural due process. These categories are derived from a distinction that is made between two types of law. Substantive Law creates, defines, and regulates rights, whereas procedural law enforces those rights or seeks redress for their violation. Thus, in the United States, substantive due process is concerned with such issues as Freedom of Speech and privacy, whereas procedural due process is concerned with provisions such as the right to adequate notice of a lawsuit, the right to be present during testimony, and the right to an attorney.

Substantive Due Process

The modern notion of substantive due process emerged in decisions of the U.S. Supreme Court during the late nineteenth century. In the 1897 case of Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832, the Court for the first time used the substantive due process framework to strike down a state statute. Before that time, the Court generally had used the Commerce Clause or the Contracts Clause of the Constitution to invalidate state legislation. The Allgeyer case concerned a Louisiana law that proscribed the entry into certain contracts with insurance firms in other states. The Court found that the law unfairly abridged the right to enter into lawful contracts, as guaranteed by the Due Process Clause of the Fourteenth Amendment.

The next 40 years after Allgeyer were the heyday of what has been called the freedom-of-contract version of substantive due process. During those years, the Court often used the Due Process Clause of the Fourteenth Amendment to void state regulation of private industry, particularly regarding terms of employment such as maximum working hours or minimum wages. In one famous case from that era, lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the Court struck down a New York law (N.Y. Laws 1897, chap. 415, art. 8, § 110) that prohibited employers from allowing workers in bakeries to be on the job more than ten hours per day and 60 hours per week. The Court found that the law was not a valid exercise of the state's Police Power. It wrote that it could find no connection between the number of hours worked and the quality of the baked goods, thus finding that the law was arbitrary.

In Allgeyer and Lochner and in other cases like them, the Court did not find that state legislatures had failed to enact their laws using the proper procedures—which would present an issue of procedural due process. Instead, it found that the laws themselves violated certain economic freedoms that inhered in the Due Process Clause, specifically its protection of liberty and what the Court described as freedom or liberty of contract. This freedom meant that individuals had the right to purchase or to sell labor or products without unreasonable interference by the government.

This interpretation of the Due Process Clause put the Court in direct opposition to many of the reforms and regulations passed by state legislatures during the Progressive Era of the early twentieth century. Justices who were opposed to the Court's position in such cases, including oliver wendell holmes jr.john m. harlan, saw such rulings as unwarranted judicial activism in support of a particular free-market ideology. and

During the 1930s, the Court used the doctrine of substantive due process to strike down federal legislation as well, particularly legislation associated with President franklin d. roosevelt's New Deal. In 1937, Roosevelt proposed a court-packing scheme in which Roosevelt would have sought to overcome Court opposition to his programs by appointing additional justices. Although the plan was never adopted, the Court quickly changed its position on substantive due process and other issues and began to uphold New Deal legislation. Now, a majority on the Court, including Chief Justice charles e. hughes and Justice benjamin n. cardozo, abandoned the freedom-of-contract version of substantive due process.

Even before the Court abandoned the freedom-of-contract approach to substantive due process, it began to explore using the Due Process Clause of the Fourteenth Amendment to re-evaluate state laws and actions affecting civil freedoms protected by the Bill of Rights. Since the 1833 case of barron v. baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672, the Court had interpreted the Bill of Rights as applying only to the federal government. Beginning in the 1920s, however, it began to apply the Bill of Rights to the states through the incorporation of those rights into the Due Process Clause of the Fourteenth Amendment. In gitlow v. new york, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), the Court ruled that the liberty guarantee of the Fourteenth Amendment's Due Process Clause protects First Amendment free speech from State Action. In near v. minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court found that Freedom of the Press was also protected from state action by the Due Process Clause, and it ruled the same with regard to freedom of religion in Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).

Because incorporation has proceeded gradually, with some elements of the Bill of Rights still unincorporated, it has also been called selective incorporation. Nevertheless, during the twentieth century, most of the provisions of the Bill of Rights were incorporated by the Due Process Clause of the Fourteenth Amendment, thereby protecting individuals from arbitrary actions by state as well as federal governments.

By the 1960s, the Court had extended its interpretation of substantive due process to include rights and freedoms that are not specifically mentioned in the Constitution but that, according to the Court, extend or derive from existing rights. These rights and freedoms include the freedoms of association and nonassociation, which have been inferred from the First Amendment's freedom-of-speech provision, and the right to privacy. The right to privacy, which has been derived from the First, Fourth, and Ninth Amendments, has been an especially controversial aspect of substantive due process. First established in griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Court later used it to protect a woman's decision to have an Abortionroe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]). free from state interference, in the first trimester of pregnancy (

In several recent decisions, the U.S. Supreme Court has considered the application of substantive due process in light of actions taken by law enforcement officers. It often has determined that police actions have not violated a defendant's due process rights. In County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998), for example, the Court determined that high-speed chases by police officers did not violate the due process rights of the suspects whom the officers were chasing. In that case, two police officers had engaged in a pursuit of two young suspects at speeds of more than 100 miles per hour through a residential neighborhood. One of the young men died, while the other suffered serious injuries. A unanimous Court held that the officers' decision to engage in the pursuit had not amounted to "governmental arbitrariness" that the Due Process Clause protects due to the nature of the judgment used by the officers in such a circumstance.

The Court in City of West Covina v. Perkins, 525 U.S. 234, 119 S. Ct. 678, 142 L. Ed. 2d 636 (1999) again held in favor of law enforcement officers in a claim that police had violated the plaintiff's due process rights. After seizing Personal Property, including cash savings, of two owners of a home they had searched during a murder investigation, the police retained the property at the police station. When the homeowners sought to have the property returned, the police failed to provide the homeowners with detailed information about how the owners

could have their property returned. The homeowners then filed a 42 U.S.C.A. § 1983 action against the police, claiming deprivation of Civil Rights under the Due Process Clause. The Supreme Court held that because information about the proper procedures to retrieve this property under state law was readily available to the plaintiffs, the police had not deprived the homeowners of their due process rights.

The U.S. Supreme Court is more likely to find due process violations where the actions of a government official are clearly arbitrary. In City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999), for example, it struck down a Chicago anti-gang ordinance as unconstitutional on due process grounds. The ordinance allowed police officers to break up any group of two or more persons whom they believed to be loitering in a public place, provided that the officer also believed that at least one member of the group was a gang member. The ordinance had led to more than 43,000 arrests. Because the ordinance did not draw the line between innocent and guilty behavior and failed to give guidance to police on the matter, the ordinance violated the due process rights of the subjects of these break-ups. The Court held that since the ordinance gave absolute discretion to the police officers to determine what actions violated the ordinance, it was an arbitrary restriction on personal liberty in violation of the Due Process Clause.

In 2002, the Court found that arbitrary actions by a trial judge in a murder case violated the due process rights of the defendant (Lee v. Kemna, 534 U.S. 362, 122 S. Ct. 877, 151 L. Ed. 820 [2002]). In that case, the defendant was charged with first-degree murder for driving the getaway car for a man who had pled guilty to a murder charge in Kansas City, Missouri. The defendant claimed that he had been in California at the time of the murder, and four family members were to testify at trial that the defendant was not in Kansas City at the time of the murder. However, the family members left before they were expected to testify, and the defense could not locate them. The defense asked the court for a short Continuance of one or two days, but the judge refused due to personal conflicts and a conflict with another trial. Without the testimony of the family members, the defendant was convicted of murder. The high court held that the judge's arbitrary actions violated the defendant's due process rights, and it vacated the defendant's conviction.

Procedural Due Process

The phrase "procedural due process" refers to the aspects of the Due Process Clause that apply to the procedure of arresting and trying persons who have been accused of crimes and to any other government action that deprives an individual of life, liberty, or property. Procedural due process limits the exercise of power by the state and federal governments by requiring that they follow certain procedures in criminal and civil matters. In cases where an individual has claimed a violation of due process rights, courts must determine whether a citizen is being deprived of "life, liberty, or property," and what procedural protections are "due" to that individual.

The Bill of Rights contains provisions that are central to procedural due process. These protections give a person a number of rights and freedoms in criminal proceedings, including freedom from unreasonable searches and seizures; freedom from Double Jeopardy, or being tried more than once for the same crime; freedom from Self-Incrimination, or testifying against oneself; the right to a speedy and public trial by an impartial jury; the right to be told of the crime being charged; the right to cross-examine witnesses; the right to be represented by an attorney; freedom from Cruel and Unusual Punishment; and the right to demand that the state prove any charges Beyond a Reasonable Doubt. In a series of U.S. Supreme Court cases during the twentieth century, all of these rights were applied to state proceedings. In one such case, gideon v. wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the Court ruled that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to have an attorney in "all criminal prosecutions," including prosecutions by a state. The case proved to be a watershed in establishing indigents' rights to legal counsel.

Procedural due process also protects individuals from government actions in the civil, as opposed to criminal, sphere. These protections have been extended to include not only land and personal property, but also entitlements, including government-provided benefits, licenses, and positions. Thus, for example, the Court has ruled that the federal government must hold hearings before terminating Welfare benefits (Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 [1970]). Court decisions regarding procedural due process have exerted a great deal of influence over government procedures in prisons, schools, Social Security, civil suits, and public employment.

The U.S. Supreme Court in Lujan v. G&G Firesprinklers, Inc., 532 U.S. 189, 121 S. Ct. 1446, 149 L. Ed. 2d 391 (2000) held that a state is not required to hold a hearing before withholding money and imposing penalties on a building contractor. The California Division of Labor & Standards Enforcement determined that a building subcontractor had failed to pay the prevailing wage to workers who installed fire sprinklers in state buildings. The California agency, without providing notice or a hearing, fined the general contractor, which in turn withheld money from the subcontractor. The sub-contractor, G&G Firesprinklers, Inc., sued the California agency, claiming that the agency had violated the company's procedural due process rights. The Court disagreed, holding that because the company could sue the agency for breach of contract, the fine did not constitute a due process violation.

The privilege against self-incrimination forbids the government from compelling any person to give testimonial evidence that would likely incriminate him or her during a subsequent criminal case. This right enables a defendant to refuse to testify at a criminal trial and, according to the U.S. Supreme Court, "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973).

Confessions, admissions, and other statements taken from defendants in violation of this right are inadmissible against them during a criminal prosecution. Convictions based on statements taken in violation of the right against Self-Incrimination normally are overturned on appeal, unless sufficient admissible evidence is available to support the verdict. The right against self-incrimination may only be asserted by persons and does not protect artificial entities such as corporations. Doe v. United States, 487 U.S. 201, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1988).

Witness Privilege

A witness may refuse to answer questions or give documentary evidence only if the answer or document would incriminate the witness. An answer is considered self-incriminating if it would lead to criminal liability in any jurisdiction. The answer need only furnish a link in the chain of Circumstantial Evidence necessary for a conviction Blau v. United States, 340 U.S. 159, 71 S. Ct. 223, 95 L. Ed. 170 (1950). The answer does not have to be one that would be admissible as evidence in a criminal trial.

The privilege does not allow a witness to refuse to answer a question because the response may expose the witness to civil liability, social disgrace, loss of status, or loss of private employment. A witness may not claim the privilege on the grounds that an answer or document may incriminate a third party: it may be declared only by the witness for the witness.

In some criminal cases, a prosecutor may grant to a witness Immunity from prosecution. This immunity comes in two forms: transactional and testimonial. Transactional immunity gives the witness immunity from prosecution for the criminal acts to which the witness refers in his or her statements. Testimonial immunity merely prevents the prosecution from using the statements the witness makes in a subsequent prosecution of the witness. Prosecutors have the right to grant only testimonial immunity and thereby force witnesses to testify. If the witness refuses to testify after being given testimonial immunity, he or she could be jailed for Contempt of court. Furthermore, if a witness with testimonial immunity testifies falsely, the false statements may be used against the witness in a subsequent prosecution for perjury.

By contrast, if police or prosecutors summon a witness to produce self-incriminating documents, the witness may claim the privilege because a summons to produce documents is similar to a demand for testimony. Curcio v. United States, 354 U.S. 118, 77 S. Ct. 1145, 1 L. Ed. 2d 1225 (1952). However, police and prosecutors may force a witness to relinquish self-incriminating documents if the records pertain to a regulated public matter, such as price records kept by businesses under price regulation statutes.

Criminal Defendant Privilege

In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court extended the right to remain silent to pretrial custodial interrogations. The Court held that before a suspect is questioned, the police must apprise the suspect of his or her right to remain silent and that if he or she gives up this right, any statements may be used against the suspect in a subsequent criminal prosecution. Under Miranda, suspects also have a Fifth Amendment right to consult an attorney before they submit to questioning. Miranda applies to any situation in which a person is both held in custody by the police, which means that he or she is not free to leave, and is being interrogated, which means he or she is being asked questions that are designed to elicit an incriminating response. A person need not be arrested or formally charged for Miranda to apply.

Miranda has been scrutinized by law enforcement personnel and others since it was first decided. In 1968, Congress enacted a law, codified at 18 U.S.C.A. § 3501, that restored voluntariness as a test for admitting confessions in a federal court. The u.s. justice department, however, under attorneys general of both major political parties, refused to enforce the provision, believing it to be unconstitutional. The Supreme Court, in Dickerson v. United States, 30 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), ruled that this law could not revoke Miranda because the 1966 decision had been made on constitutional grounds.

For criminal defendants, the privilege against self-incrimination includes the right to refuse to testify at trial. A defendant may testify at a Preliminary Hearing on the admissibility of evidence without waiving the right to not testify at trial. Incriminating statements made by a defendant in a preliminary hearing are not admissible at trial, and the prosecutor may not comment on them.

The Court has held that the privilege is not compromised by laws that require persons to surrender identification to law enforcement personnel. California v. Byers, 402 U.S. 424, 91 S. Ct. 1535, 29 L. Ed. 2d 9 (1971). A person who is suspected of a crime may be compelled to testify before a Grand Jury, a legislative body, or an administrative board. The person must appear and answer questions, but he may claim the privilege against self-incrimination when necessary.

Search and seizure

A hunt by law enforcement officials for property or communications believed to be evidence of crime, and the act of taking possession of this property.In International Law, the right of ships of war, as regulated by treaties, to examine a merchant vessel during war in order to determine whether the ship or its cargo is liable to seizure.

Overview

Search and seizure is a necessary exercise in the ongoing pursuit of criminals. Searches and seizures are used to produce evidence for the prosecution of alleged criminals. The police have the power to search and seize, but individuals are protected against Arbitrary, unreasonable police intrusions. Freedom from unrestricted search warrants was critical to American colonists.

Under England's rule, many searches were unlimited in scope and conducted without justification. Customs officials could enter the homes of colonists at will to search for violations of customs and trade laws, and suspicionless searches were carried out against outspoken political activists. Searches in the colonies came to represent governmental oppression.

To guard against arbitrary police intrusions, the newly formed United States in 1791 ratified the U.S. Constitution's Fourth Amendment, which states: