• Expungement: "We Won the Case, Now How Can I Clear my Good Name?"
  • May 5, 2003 | Author: Dulce J. Foster
  • Law Firm: Fredrikson & Byron, P.A. - Minneapolis Office
  • People are charged with crimes for many reasons, the most common one being that they are guilty. Others are truly in the wrong place at the wrong time or have some other legitimate legal defense. Regardless, being the target of a criminal investigation can have devastating consequences. Contrary to what some people think, a person's criminal record does not automatically disappear if a case is dismissed or the jury enters a finding of "not guilty." Nor are reputations restored by even the most resounding vindication. The record of an arrest and prosecution can have a hugely negative impact on a person's employment opportunities, licensure, and social, religious and political activities-and, of course, reputation.

    So, what can a person do when the case is all over to clear the record? That depends on where the charges were filed, the nature of the alleged crime, and how the case was resolved. Take Wanda Worker as an example. She is arrested and charged in Hennepin County with embezzling funds from her employer. Her attorney meets with the prosecutor and successfully demonstrates that Wanda made a good faith bookkeeping error. Convinced of her innocence, the prosecutor dismisses the charges before her first court appearance. Wanda, although innocent, now has a felony arrest record that future potential employers will find through simple background checks. It isn't fair, but some may think twice about hiring her. Wanda can prevent this from happening by having her record "expunged."

    "Expungement" of a record can mean different things, including sealing it, destroying it, or returning it to the person whom the record is about. If the prosecutor decides not to charge someone, or, as in Wanda's case, dismisses the charges at a very early stage (i.e., before the court can determine whether there is probable cause to believe a crime was committed), she can simply demand that any state law enforcement agencies that were involved return the arrest records to her. This remedy is limited to people with no significant criminal history, and it does not include records outside the control of state law enforcement agencies.

    Wanda could also file a petition for expungement with the court handling her case. If the court granted her petition it could order that all criminal records related to her case be sealed, including records held by the court, the prosecutor and state law enforcement officials. Sealed records will not be reopened without a court order except in rare cases. "Expungement" granted under such a petition does not include destroying records or returning them to the petitioner.

    This remedy might be available to Wanda even if the prosecutor did not dismiss the charges so early in her case, because it applies to certain defendants who obtain favorable decisions without a conviction. For example, Wanda could petition to have her criminal record sealed if the prosecutor voluntarily dismissed the case closer to trial, or if the jury found her "not guilty" after a trial. She could also seek expungement if the charges were dismissed after she successfully completed a diversion program (i.e., a resolution of the case involving community service, counseling, or other requirements that does not involve entry of any judgment against the defendant).

    Not everyone is eligible for expungement, but anyone who has been investigated, arrested or convicted of a crime and wants the record cleared should consult with an attorney to find out. It won't disappear on its own.