How to Defend An Asset Forfeiture Case Without Waiving the 5th Amendment Privilege

(c) 2014 Brenda Grantland
Truth and Justice Blog, 2/17/2014

Back when I was answering questions from callers to Forfeiture Endangers American Rights Foundation, I frequently took calls from forfeiture victims who had already lost their property by default because they were afraid to contest the forfeiture. Many believed, or were told by lawyers, that they couldn’t contest the forfeiture case without giving up their Fifth Amendment privilege against self-incrimination in a parallel criminal case, or that contesting the forfeiture would make it more likely that prosecutors would file criminal charges.

Those assumptions are not entirely true. The Fifth Amendment applies in civil forfeiture cases, and as a constitutional right, it trumps statutory rules and procedures.

If a forfeiture statute truly forced claimants to choose between forfeiting their property and incriminating themselves, the statute would be unconstitutional under a long line of Supreme Court cases beginning over a century ago with Boyd v. United States, 116 U.S. 616 (1886).[i]


Read More