There are many factors involved when it comes to sealing a criminal case
One of the most frequently asked questions we receive at the completion of a criminal case is “Can I seal my case?” Most people who ask this question often times do not realize just how complicated the analysis actually is. First of all, there only certain types of resolutions that are eligible for immediate sealing. Those resolutions include dismissals, not guilty verdicts and determinations by the prosecutor not to go forward with the case. If, however, one of those outcomes was not reached, then there may be a period of time required to wait before you can legally seal your case. At a minimum, if you were placed on any type of probation, then you will need to wait until that period of probation is over. If that probation followed a continuance without a finding, then sealing can be done soon after the probationary period is over, because the end result is a dismissal. However if probation followed a guilty admission or verdict, then the sealing will have to wait.
The amount of time that an individual must wait is determined by the type of offense of which they were convicted. As of 2012, misdemeanor convictions require a five-year waiting period to seal records, and felony convictions require a 10-year waiting period to seal. It is important to remember that the most recent conviction on a person’s record is the one that determines the waiting period, and that older convictions may be back in play and ineligible for sealing if there is a subsequent conviction that is more recent. In order to correctly analyze your eligibility for sealing a case, or your record as a whole, an experienced criminal defense attorney will require a complete and official copy of your criminal record to review with you. Your attorney should make sure that there are no errors on your record and that the statutory waiting periods have been satisfied. If they have been satisfied, then your attorney can engage in the second step of the analysis.
Next Steps
Because it is presumed that criminal records are public records, the burden is on the defendant who wishes to seal his or her record to show that there is “good cause” to seal the record and take it away from public view. This standard was laid out in the case of Commonwealth vs Pon, that case made the standard for sealing a record a bit less onerous for a defendant, but still places the burden on the defendant to show why sealing is both necessary and appropriate.
It is incumbent upon a thorough defense attorney to draft and individualized motions and memorandum in support of their clients’ petition to seal. That memorandum should ideally contain exhibits which will convince the court that sealing is the right decision in that particular case. Some things that a defendant may include are: examples of employment denials based on a criminal record, examples of denial of housing based on a criminal record, examples of denial of community service or volunteer opportunities based on a criminal record, and other examples of how the public availability of the defendant’s criminal record has caused him or her a hardship. Additionally it is helpful to include character reference letters that detail the changes that a defendant has made to his or her life that show a genuine desire to start fresh and be a productive member of society. Such character reference letters can come from individuals who know the defendant well, and preferably have a certain level of status in the community where their opinion will be counted.
Sealing a case often depends on the Courthouse
While the 2012 amendments to the sealing procedure were meant to standardize the process, the reality is that every Courthouse handles sealing petitions in a different way. Some courthouses will hold one hearing on the petition, allowing a defendant to file their petition by mail for an initial review by a judge, while other courthouses will hold a hearing for that initial review. An experienced attorney should not have a problem passing the initial review phase, whether it is an in camera review by a judge, or an actual hearing. It is at the second hearing where the attorney really earns their feet. At that hearing a defendant should expect the Commonwealth to either object to the sealing, or in a best-case scenario take no position on the matter. At that point defense counsel is left to make the strongest and most thoughtful arguments possible to the court as to why sealing should be granted. This argument will largely be based on the motion and memorandum and exhibits previously filed, but in some circumstances a defendant may choose to testify before the court as well in order to personalize the petition. Generally the court will honor the petition at that second hearing, although occasionally the matter may be taken under advisement.
While there is no harm to sealing a criminal record, both the attorney and client should both understand that sealing a criminal record will not keep it from you from every possible inquiry. The best analogy is that sealing a criminal record is like building a large wall around a house; for the most part the wall will keep people from looking in, but if someone has a special level of access, for example they are flying over the home with a helicopter, then they will still be able to see what’s behind the wall. Examples of agencies with special access include law enforcement, schools, medical providers, financial service sector employers, and other types of providers or agencies that handle sensitive or potentially privileged information. This means that unfortunately sealing a criminal record will not eradicate the fact of the existence of a criminal case. In order to do that a defendant would have to be granted an expungement, which is detailed in another section of this website, and that remedy is very difficult to obtain and rarely granted.
The sealing process can be an effective and helpful way to get a fresh start, since there is no longer a stigma attached to sealing a record. This is because the requester of an individual’s criminal record is not told that the record is sealed. Instead, they are told that there is simply no record found. If you have additional questions about the sealing process or would like to discuss your eligibility to seal your criminal record, please call Rakhlin Law at
617-564-0466.
