If 2 brothers own a home and one of them is arrested for dealing out of the house, since the other brother had no knowledge of this, can he also be held liable?

UPDATED: Jul 16, 2015

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If 2 brothers own a home and one of them is arrested for dealing out of the house, since the other brother had no knowledge of this, can he also be held liable?

One lives in the home, and is arrested on felony charges for dealing drugs from the home. The brother who doesn’t live there was unaware of the situation and is not involved. Is he culpable for his brothers activity? What should he do to protect himself? Can his property be seized?

Asked on July 16, 2015 under Criminal Law, Delaware


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

1) You need criminal intent, or "mens rea," to be guilty of a crime. If the other brother truly did not know what was going on (which is more than merely "willful blindness," or deliberately choosing to not "know" when there is evidence of the crime; willful blindness may still allow conviction for, for example, aiding and abetting, by allowing the use of the home for  a crime which the brother effectively knew or should have known was occuring), he should not face criminal charges or, if charged, should not be convicted. That said, regardless of what he knew or did know, if there is evidence, including possibly the testimony of the guilty brother, that he did know and the court finds that evidence credible or believable, he could be convicted.

2) A home (or any item of property) that is used to conduct crimes can potentially be seized under the civil forfeiture laws, even if one of the owners was innocent of the crime. The civil forfeiture laws do not make require conviction.

The brother should hire experienced criminal defense counsel (a lawyer) right away--that is the best thing he can do to protect himself. And he should not speak to anyone (remember: "anything you say can be used against you") until he speaks to hisl lawyer.

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