Expungement Basics And Eligibility Process
Expungement, also known as “expunction,” is a court-ordered procedure in which the legal record of an arrest or conviction is “erased.” In the eyes of the law, it is the same as expunging a criminal record or setting aside a criminal conviction.
This legal procedure can transform the life of a person with a prior conviction or arrest record by expanding their options. By expunging a criminal record, a person is able to live more freely, without fear that past legal troubles will follow them.
This article includes more details about expungement. This should not be construed as formal legal advice for anyone in need of assistance with their arrest or court record.
The Case’s Assignment
The defendant may seek a criminal defense counsel personally or the court may assign the case to one. Many criminal defense lawyers work for the public defender’s office and are compensated by them. Local, state, and federal courts appoint them to cases. Private firms recruit other criminal defense lawyers. Some criminal defense lawyers have their own law firm that they manage. Due to the referral procedure and the payment coming from individuals other than defendants, public defenders are paid less than private lawyers and have a larger case load. In some situations, a court may appoint a private attorney to represent a client.
Interview with Regards to the Case
When the criminal defense lawyer has the opportunity to meet with the client in person, he or she should strive to learn as much as possible about the case. He or she can learn about possible defenses, as well as the case’s strengths and weaknesses, by asking specific questions regarding the case. This necessitates a detailed and rigorous interrogation of the defendant.
The Case Is Being Investigated
He or she must not only ask the criminal defendant pointed questions regarding the case, but also conduct more investigation into the case to determine any possible routes of acquittal. This frequently entails interrogating police officers about the processes they employed in the case. It could also entail speaking with witnesses who have information about the case and gathering data on the case. All of this material is used to try to put together a good case defensively. If an expert witness is called to testify in the case, the criminal defense attorney may question him or her about the testimony and evidence that will be presented.
Before the case is presented to the jury, a criminal defense counsel has the right to assess the prosecution’s case. This permits him or her to look for flaws in the prosecutor’s case and try to locate evidence that could disprove it, such as hiring an independent lab or expert to evaluate evidence in the case.
Analyzing the evidence against a criminal defendant necessitates a thorough examination of the facts and hypotheses of the case by a criminal defense attorney. He or she could have evidence evaluated by a third party. He or she may also study the material to see if there are any legal ideas that work against his or her client’s conviction.
Contact with the Client Continued
A criminal defense lawyer must communicate with his or her client on a regular basis to explain any developments in the case and to keep him or her up to date. The lawyer must ensure that the client’s conversations are kept private. The lawyer must also ensure that the client receives information regarding the case so that he or she has a better knowledge of the potential outcomes.
Selection of the Jury
The jury selection procedure is aided by a criminal defense attorney. He or she may seek to have jurors dismissed for cause if he or she believes they are biased against the defendant or simply has a terrible feeling about a possible juror.
Bargaining for a Plea
A criminal defense lawyer is also in charge of discussing the state of the case with the prosecution and negotiating any possible plea bargain. A criminal defense lawyer may be able to help the defendant negotiate a good agreement that results in the charges or punishment being reduced.
Participation in the trial
During the trial, a criminal defense lawyer argues for his or her client. He or she interrogates witnesses, cross-examines state witnesses, and tries to persuade the jury that the prosecution has not met its burden of proof.
A criminal defense lawyer can represent the defendant during the sentencing phase if the criminal defendant is sentenced for the offense, whether he or she accepted a plea deal or was convicted by a judge or jury. He or she may discuss elements that will persuade the judge or jury to shorten the defendant’s sentence and discuss possible alternatives to incarceration.
Although it will vary depending on the state or county, the expungement process typically begins with the filing of an application or petition. Different legal systems employ various terms. So, for instance, California refers to this as clearing your record with a dismissal, while some states, like Michigan, refer to it as setting aside a conviction. Utah refers to this as expungement of records. The process will result in the sealing or removal of your criminal records, regardless of the terminology used.
Your court will probably have standard forms to use when filing an application, as well as lists of the paperwork and information you’ll need to submit with your request. You must be absolutely certain that your request contains all necessary components. Your application should detail the steps you took to locate any missing documents or information and the reasons you were unable to do so.
However, the county prosecutor’s office frequently has everything you’ll need to submit with your request. You may even need to get the prosecutor’s office’s approval before submitting your request to the court in many jurisdictions.
The court will typically issue an order of expungement after granting a petition or application, which other agencies can then be served with. This guarantees that all of the records they may have on you are sealed or deleted. Frequently, these organizations are:
- the organization that made the arrest (such as the sheriff’s office or local police department);
- the jail or booking office, for example:
- the corrections department of your state (covering your records while serving any prison sentences)
Eligibility for Expungement: Additional Factors
You may be required to register and report if your underlying convictions were for sex-related offenses. Don’t assume that just because your criminal record has been expunged, any registration or reporting requirements will also be waived.
In California, for instance, you must file a separate motion to be released from your registration and reporting obligations in addition to an order expunging your criminal history. You would still have to abide by your state’s registration and reporting laws if that separate request were to be denied.
Even when it is an option for people who have been arrested or convicted, expungement does not happen automatically, and it is never guaranteed. A person seeking to have an arrest or criminal conviction expunged from their record usually has to fill out a petition or application, and then submit all required paperwork to the criminal court. Once they have done that, a judge will review the application and make a decision. In most cases, filing an expungement application also requires paying a fee.
Expungement Process Basics
The expungement process can be complicated. For example, some jurisdictions require an applicant to deliver (or “serve”) papers to district attorneys, while others require the applicant to prepare the legal document (or “Order of Expungement”) which will be signed by the judge. In some cases, a court hearing is required, after which a judge will decide whether to grant the expungement. Once you obtain an expungement order, you may also need to serve it on different agencies that may also have records related to your arrest or conviction, such as your state’s department of corrections.
Perhaps the hardest part of the process, though, will be obtaining all of the required documents to file with your application. Many of these documents can be obtained from the prosecutor’s office or from court records, so that’s a good place to start. Also, some jurisdictions require formal approval of expungement from the prosecutor’s office before the expungement can be considered by the court, which may take some time and effort to acquire.
Examples of State Expungement Applications
As noted, the expungement process can differ by state and even by county, so there may be specific application forms and requirements for your local court system. You can normally find these forms at your local courthouse or their website. Below are a few examples of what these applications or petitions look like in the various states.
- Colorado: Sealing of Arrest and Criminal Records (Colorado Judicial Branch)
- Florida: Seal and Expunge Process (Florida Department of Law Enforcement)
- Georgia: Request to Restrict (Expunge) Arrest Record (Georgia Bureau of Investigation)
- Minnesota: Expungement of a Criminal Record (Minnesota Judicial Branch)
- Missouri: Petition for Expungement of Arrest Records (Missouri Courts)
- Nevada: Petition to Seal Records Instructions (Clark County)
- Texas: Items Needed for Filing Expunctions [PDF file] (Dallas County)
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*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.