Expungement hearings

An expungement hearing can take place if a person has been charged with a crime but has been found innocent. In the most basic terms, an expungement hearing is a civil action in which an individual who has been charged with a criminal offense seeks that all evidence against him be sealed, rendering the evidence unavailable to the court or the state's courts. An expungement hearing will occur only when the charges against the accused have been dismissed.


In most states, expunging criminal cases is not a right that is afforded to every person. The right to expunge an offense arises from the Constitution, and it is typically reserved for crimes with particularly grave consequences. In many states, a judge may expunge a criminal record only after receiving a petition from the defendant or his attorney. In other states, a person must have had his charges dismissed to be eligible to apply for expungement.


Certain conditions may require an individual to obtain an expungement from his or her conviction. For instance, in most states, an individual convicted of a felony that carried a mandatory prison sentence must wait a period of time before applying for expungement. In other states, a convicted felon must demonstrate to a judge that he or she would not benefit from expungement, such as a history of substance abuse or imprisonment in a high-security prison. Regardless of the eligibility requirement, expungement is generally granted only when there is no risk of rehabilitation.


After the prosecutor or judge issues a warrant of arrest or a "preliminary investigation" indicating that an individual has committed a crime, the individual has the burden of proving that he or she did not commit the crime. If the defendant is found to be guilty, the trial process begins. During the course of the trial, a judge will hear evidence that relates to the charge, ask questions of the prosecutor or defense attorney, and review exhibits and other evidence presented during the trial. The burden of proof shifts to the defendant following the presentation of the evidence. In most cases, the prosecution bears the burden of disproving guilt.


Some jurisdictions even allow a defendant to use a pretrial "hardship" to fight for a court order of expungement. In this situation, the defendant must prove, by clear and convincing evidence, that there is no chance for rehabilitation. within three years. In order to apply for a hardship hearing, the defendant must file a request with the court and submit evidence showing that he or she will not be able to rehabilitate himself or herself following incarceration. If the judge agrees, the court will schedule the case for a hearing.


Expirations of criminal records are governed by local rules, so it is important to check the laws of your state. Some states do not permit expunging, while others require a formal application from the defendant. Although most states allow for expungement on minor criminal convictions, those cases in which the victim has been killed or seriously injured can be expunged if a special provision has been inserted into the law. Before seeking an expunging hearing, the defendant should consider all the options available to remove a criminal record.