Expunging or sealing your record
The Supreme Judicial Court in the case of Commonwealth v. Alves, decided on August 27, 2014 dealt with the issue of expunging or sealing a criminal record. The single question before the court was whether the proper remedy for a clerical error that results in the issuance of a criminal complaint against a person who not only did not commit the crime, but also was never the intended target of the police investigation, is to seal the record pursuant to Mass. General Laws chapter 276, section 100C. The Court ruled that in this unusual case, the judge had an additional option of ordering that the record be expunged.
In the facts of this case, there was another person with the same name but different date of birth. Through a clerical error the “wrong” person had a criminal complaint issued against him. Once it was discovered, the prosecutor moved to dismiss the case and Mr. Alves’ lawyer filed a motion to expunge the record. The judge denied the motion explaining that he did not have any other alternative under the statute. The SJC said that expunging of a record should be used in only the most exceptional circumstances. The Court went on to describe instances when sealing of a record rather than expunging is appropriate as the exclusive remedy to be applied.
However, here, the Court ruled that the present case is the rare case in which the criminal charge was a fiction in the sense that it was never the intention of the police or the prosecutor to initiate criminal charges against the person who was charged. The Court said that nobody who is entirely disconnected from the criminal episode should be subjected to “the cloud of prosectuion”. Sealing a record does not remove the “cloud” of prosecution. There are various agencies and authorities that have access to criminal records even though sealed. Expungment is a much stronger and more absolute remedy than sealing. When a record is expunged, all traces of it vanish, and no indication is left behind that information has been removed. In contrast, when records are sealed, they do not disappear; they continue to exist but only become unavailable to the general public.
It’s important to know your rights and you should seek the advice of a lawyer in our firm if you think you qualify for sealing or expunging a record.