For the Defense - Volume 2, Issue 3 - 2017 - 25

thus be expected to admit evidence that puts the
property owner's actions in context with respect
to his or her life, health, and relationships with
any charged individuals-evidence often ruled inadmissible prior to Young.
In sum, the Pennsylvania Supreme Court's
holding in Young ensures more robust protection
from forfeiture for property owners invoking the
constitutional excessive fines defense or the statutory innocent owner defense. Property owners
invoking these defenses can and should proffer
supportive evidence about their family and their
home (or other seized property) in order to meet
their burden on these increasingly impactful defenses.

A civil forfeiture action is an in rem proceeding
that is premised on the notion that the property
has done wrong, requiring a substantial connection between the property and the underlying

crime before property may be forfeited to the government. The burden of proving this connection
- known as nexus - falls squarely upon the government at trial.20 At the pleading stage, a property owner may place this issue into contention by
disputing in the Answer the Commonwealth's factual paragraphs that support a nexus between the
crime and the property.
A vigorous defense of civil forfeiture at the
pleading stage will do much more. As a threshold
matter, a defense will ensure that the underlying
crime provides statutory authorization for the forfeiture of property. Without such authorization,
the Commonwealth has no authority to seek forfeiture of property, and the courts have no authority to order forfeiture.21 An Answer may assert the
important affirmative defenses discussed above,
such as the statutory innocent owner defense and
a constitutional excessive fines defense. In addition, there may also be other affirmative defenses
asserted in New Matter, such as a statute of limitations defense,22 or a claim that evidence alleged
in the forfeiture petition should be excluded because it was illegally obtained.23

DeForest Koscelnik Yokitis
& Berardinelli

mbk

A Robust Defense to Civil
Forfeiture Should Consider
a Due Process Claim

ATTORNEYS AT LAW

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myers brier & kelly

LLP

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Our attorneys are members of the bars of
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New Jersey, Ohio and West Virginia.
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Donna A. Walsh | Patrick A. Casey
Frank J. Brier | John B. Dempsey
Of Counsel:

Patrick J. Brier | Morey M. Myers

Vol. 2, Issue 3 | For The Defense

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Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 3 - 2017