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Forfeitures - Burden of Proof
Compiled by John O'Tuel, 5/23/95 to 6/7/95
Yes
| State | Burden of Proof | Standard of Proof | Rules of Evidence? | Jury Trial? |
|---|---|---|---|---|
| Alabama | State - prima facie case Claimant - innocent owner defense |
Reasonable Satisfaction | Apply throughout | No |
| Alaska | State - probable cause Claimant - burden that property is not subject to forfeiture |
Preponderance | N/A | No |
| Arizona | State - burden that property is subject to forfeiture Claimant - burden that property is exempt from forfeiture |
Preponderance | Apply in actual forfeiture proceeding; at probable cause hearing, rules apply as if it were grand jury probable cause hearing | No |
| Arkansas | State - probable cause to seize; burden to prove property is
subject to forfeiture Claimant - burden to overcome statutory presumptions |
Preponderance | N/A | Yes |
| California | State - burden to prove everything | Beyond a reasonable doubt (except in one circumstance, clear and convincing) | N/A | Yes |
| Colorado | State - probable cause;prove allegations of petition
Claimant - prove he is true owner; prove affirmative defenses |
Preponderance | Apply throughout | No |
| Connecticut | State - has burden of proving all material facts | Clear and Convincing | Apply throughout | ? |
| Delaware | Drugs - Claimant Others - State |
Preponderance | Hearsay allowed to show probable cause | Yes |
| D.C. | Probably: State - probable cause Claimant - prove that the property is not subject to forfeiture |
- | - | - |
| Florida | State - probable cause and case Claimant - can disprove with preponderance |
Clear and Convincing | Hearsay allowed to show probable cause but not to establish forfeiture | Yes |
| Georgia | State - prima facie case for forfeiture by preponderance Claimant - prove exemption or exception by preponderance |
Preponderance | - | No |
| Hawaii | State - probable cause Claimant - burden of showing property is not subject to forfeiture |
Preponderance | - | No |
| Idaho | State-burden to prove property is subject to forfeiture | Preponderance | - | No |
| Illinois | State - probable cause Claimant - burden of showing his interest is not subject to forfeiture BUT: in 725 I.L.C.S. 5/36-2 or Narcotics Profit Forfeiture Act action, state must prove by preponderance that property is subject to forfeiture |
Preponderance | Hearsay allowed to show probable cause but not to establish forfeiture | Yes (in Cannabis and Controlled Substances Act actions; probably in all forfeiture actions) |
| Indiana | State - burden of proving property was subject to forfeiture | Preponderance | - | - |
| Iowa | State - burden of proving property was subject to forfeiture | Preponderance | - | No (probably) |
| Kansas | State - burden of proving property was subject to forfeiture Claimant - burden of disproving several presumptions |
Preponderance | Hearsay apparently admissible to show probable cause according to pending statute | No (according to pending statute) |
| Kentucky | State - probable cause Claimant - burden is shifted to claimant, preponderance BUT: if property is used or intended as exchange for controlled substance (currency or real property) Claimant - currency in close proximity, must disprove rebuttable presumption by clear and convincing State - real property, must prove by clear and convincing |
Preponderance, but sometimes clear and convincing | - | - |
| Louisiana | State - probable cause and prove that property is subject to
forfeiture; where owner of property is acquitted of underlying
crime, presumption arises which state can rebut with clear and
convincing Claimant - prove exceptions or exemptions |
Unknown, La. S. Ct. refuses to rule on issue | Apply throughout | No |
| Maine | State - burden of proving all material facts Claimant - burden of proving all exceptions and exemptions State - has burden of proving that spouse or minor child of offender, with interest in property, knew or should have known of illegal use |
Preponderance | - | - |
| Maryland | State - burden of proving property is subject to forfeiture;
if state must prove this by using (l)(1) (proceeds presumption),
proof must be clear and convincing Claimant - exceptions and exemptions, rebut "close proximity" presumption |
Preponderance (except for (l)(1) clear and convincing standard) | - | - |
| Massachusetts | State - probable cause Claimant - prove that property is not subject to forfeiture |
Unknown under new statute Presumably preponderance |
- | Yes (at least where forfeiture of property would be punitive) |
| Michigan | State - prove case Claimant - exceptions and exemptions; rebut "close proximity" presumption by clear and convincing evidence |
Preponderance | Apply throughout | No |
| Minnesota | State - prove case Claimant - must prove security interest by clear and convincing; rebut presumptions |
Clear and Convincing | Apply throughout (apparently) | - |
| Mississippi | State - prove case Claimant - ;rebut "close proximity" presumption |
Preponderance (except for RICO forfeiture - clear and convincing) | Circumstantial evidence is admissible in forfeiture proceeding | - |
| Missouri | State - prove allegations of forfeiture petition Claimant - prove "innocent ownership"; rebut "close proximity" presumption |
- | - | Yes |
| Montana | Apparently State - probable cause Claimant - prove property is not subject to forfeiture by rebutting presumptions with preponderance |
Preponderance | - | No |
| Nebraska | State - prove case beyond a reasonable doubt Claimant - prove exceptions and exemptions by a preponderance |
Beyond a reasonable doubt (Claimant's defenses proven by a preponderance) | - | Yes (probably) |
| Nevada | Apparently State - prove case beyond a reasonable doubt | Apparently Beyond a reasonable doubt | - | - |
| New Hampshire | State - burden of proving all material facts Claimant - burden of proving exceptions and exemptions; rebutting "close proximity" presumption |
Preponderance | - | No |
| New Jersey | State - proves property is subject to forfeiture Claimant - proves exceptions and exemptions |
Preponderance | (Probably) Hearsay not admissible in forfeiture procedure | - |
| New Mexico | State - ? Claimant - prove exceptions and exemptions; only need to satisfy burden of production, not burden of persuasion |
- | - | - |
| New York | State - prove case | Preponderance (Clear and convincing for some types of facts) | - | Yes |
| North Carolina | State - show property was used in illegal manner (e.g.
transport drugs, etc.); however, it is not clear how much they
have to prove (i.e. probable cause, preponderance, etc.) Claimant - burden of proving innocent owner defense (the emphasis in all the cases is on the claimant's burden) |
- | - | No (except that it appears that there are jury trial rights in RICO proceedings) |
| North Dakota | State - probable cause Claimant - prove property is not subject to forfeiture |
Preponderance | - | - |
| Ohio | State - prove property is subject to forfeiture | Preponderance for contraband and RICO actions Clear and Convincing for drug forfeiture actions |
- | - |
| Oklahoma | State - prove case | Preponderance | Hearsay inadmissible in forfeiture proceeding | Yes (in RICO actions) Probably no in drug forfeiture actions |
| Oregon | State - probable cause Claimant - prove property not subject to forfeiture |
Preponderance | - | Yes (at least before Ch. 166 went into effect) |
| Pennsylvania | State - prove property is subject to forfeiture Claimant - prove property is not subject to forfeiture |
Preponderance (Except for purposes of establishing that forfeiture is not an excessive fine in violation of Const., State must prove pattern of activity by clear and convincing) | Rules of evidence do not apply at hearing for preservation of property sought to be forfeited, but they do appear to apply at the actual forfeiture proceeding | Yes |
| Rhode Island | State - probable cause Claimant - prove property is not subject to forfeiture |
Preponderance | - | Yes (if action is in superior court, i.e. $250,000 or more) |
| South Carolina | State - prove property is subject to forfeiture Claimant - exceptions, exemptions, and defenses |
Preponderance | - | |
| South Dakota | State - probable cause Claimant - prove property is not subject to forfeiture |
Preponderance | - | - |
| Tennessee | State - prove property is subject to forfeiture Claimant - prove property is not subject to forfeiture |
Preponderance (except in case of forfeiture of real property where state must prove everything beyond a reasonable doubt) | - | No (except in case of real property forfeiture) |
| Texas | State - prove property is subject to forfeiture | Preponderance | Hearsay admissible as to issue of probable cause, but not in actual forfeiture proceeding | Yes (probably) |
| Utah | State - must present evidence that property is subject to forfeiture | Preponderance | - | - |
| Vermont | State - prove all material facts | Clear and convincing | - | - |
| Virginia | State - prove property is subject to forfeiture Claimant - prove exemptions and exceptions |
Preponderance | - | Yes |
| Washington | State - probable cause (for personal property forfeitures);
prove real property is subject to forfeiture Claimant - prove property is not subject to forfeiture |
Preponderance | Circumstantial evidence and hearsay are admissible to establish probable cause | - |
| West Virginia | State - prove property is subject to forfeiture Claimant - prove exceptions and exemptions |
Preponderance | - | Yes |
| Wisconsin | State - prove property is subject to forfeiture | Satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence | - | - |
| Wyoming | State - prove property is subject to forfeiture | - | - | - |
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