Of Defense Lawyers and Pornographers: Pretrial Asset Seizures and the Fourth Amendment

32 Pages Posted: 9 Jun 2008 Last revised: 30 Sep 2008


This article posits that the issue of whether a defendant may use money in his possession to retain an attorney must be examined primarily as a Fourth Amendment question rather than exclusively as a Sixth Amendment question. Using established Fourth Amendment jurisprudence has several advantages over viewing a pretrial seizure of assets as an incursion on only the right to counsel. First, it leaves no doubt that the government has the burden of adducing specific facts to demonstrate that particular assets are traceable to particular crimes. This is consonant not only with the presumption of innocence, but also with recognition that affording talented and aggressive representation to those accused of even heinous crimes is a defining characteristic of the American adversarial system of criminal justice. Second, a Fourth Amendment approach still affords consideration of a challenged seizure's Sixth Amendment implications. However, because every seizure triggers Fourth Amendment scrutiny, defendants would no longer be required to demonstrate an impact on the right to counsel just to prove their entitlement to a hearing. Instead, a hearing would be presumptively required, just as it is when the government seizes expressive works that may be protected by the First Amendment. A seizure of assets that an accused intends to use for his defense should be met with the same heightened judicial concern as a seizure of books or films. The Supreme Court, however, has been more willing to accept, in the name of the Constitution, the risk that pornographers will propagate obscenity than the risk that an accused would pay his attorney with tainted funds. Viewing pretrial asset seizures as raising Fourth Amendment issues ensures that the government will have to make some evidentiary showing to restrain money that a defendant might use for attorney's fees. Lastly, a Fourth Amendment approach forces recognition of the fact that attorneys who are paid for legal services rendered before the government has made the required probable cause showing ought to be entitled to the money they earned. While the government cannot remove an allegedly obscene book from circulation before proving that it is obscene, under current law it can prevent an accused from using contested assets to fund his defense with little more than an allegation. A Fourth Amendment approach would expose this anomaly and dispel the unmerited cloud of ignobility and the spectre of criminal exposure that current law casts upon those who undertake to provide constitutionally guaranteed representation.

Keywords: forfeiture, seizure, fourth amendment, sixth amendment, right to counsel

JEL Classification: K14, K42, K11

Suggested Citation

Bascuas, Ricardo J., Of Defense Lawyers and Pornographers: Pretrial Asset Seizures and the Fourth Amendment. University of Miami Law Review, Vol. 62, p. 1159, 2008, Available at SSRN: https://ssrn.com/abstract=1142350

Ricardo J. Bascuas (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States
305-284-2672 (Phone)
305-284-1588 (Fax)

HOME PAGE: http://www.law.miami.edu/facadmin/faculty/rbascuas.html

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