Below, a DC expungement lawyer discusses what evidence is typically presented in a record sealing case and what preemptive measures individuals can take before applying to have their record sealed. Call today to discuss the specifics of your case.
Individuals absolutely can present new evidence in a record sealing case, particularly in actual innocence cases. Most actual innocence cases arise, where for whatever reason, the client had the charges against him dismissed or maybe never even filed which is called “no papering.”
If the government looks at the police reports, talks to witnesses, and decides that they really can’t prove that this person is guilty beyond a reasonable doubt, then they’ll often dismiss the charges. This means the case never proceeded very far and there wasn’t very much evidence presented to the court.
In those circumstances, the person looking to have their record sealed on innocence grounds will have to gather evidence of innocence. If you’re working with an attorney, then that attorney would likely work with an investigator who will speak with witnesses, gather video, and other evidence to prove that the person is innocent. Unlike in a criminal prosecution, the burden of proof is on the person trying to seal his or her record. The movant has to prove that they’re innocent. It’s not that the government job to prove that they’re guilty.
New evidence is also very common in interest of justice cases because they’re really about what has that person done since the time they were arrested and after the conclusion of any court proceedings. Therefore, additional evidence develops the longer a person’s prosecution has been concluded
The main factor is going to be the circumstances of the arrest and the crime itself. If you think of a spectrum of a very minor crime to very serious crime, something from a noise violation going up to a murder or rape, where the defendant’s conduct falls on that spectrum is going to impact the likelihood of success.
A person, who has a limited criminal history of a single low-level offense or offenses, is going to be much more likely to successfully seal their records than somebody with an extensive criminal history or criminal history that contains very serious crimes like robbery or rape or murder.
The single most important preemptive measure that a defendant can take, or defendant’s attorney can take, would be convincing the government to waive in writing the waiting period for sealing a record. In the DC, there are various waiting periods that are based on the actual offense that the defendant was charged with or arrested for.
So, for example, a very low-level offense non-conviction might have two-year waiting period before a person can apply to seal their record whereas a more serious offense or conviction might have a four or eight year waiting period. An offense where somebody’s case ended in conviction rather than dismissal or diversion might have an eight-year waiting period. However, that waiting period is discretionary to prosecutors at the United States Attorney’s Office and Office of the Attorney General and they have the option of waiving that waiting period.
Many criminal defendants choose to take some sort of plea deal or plea offer. They plead to a lesser offense in order to get a shorter jail sentence or they enter into a diversion program with the government where they might perform some community service and then have their case dismissed. Something that defendants and attorneys should be looking for is trying to get the government to agree to waive some of the waiting period as part of the deal.
David Benowitz and his firm are the best strategic and compassionate teams you will work with. Mr. Benowitz and his team are diligent and proactive, which is further enhanced by David’s methodic and strategic approach to law. My case was a very complicated and emotionally charged case involving classified information, where I was facing three indictments, two carrying life sentences and one carrying 20 years. Mr. Benowitz utilized a network of lawyers coupled with his own strategy to navigate the case to success! I sincerely recommend David Benowitz quite literally with my life.
I found David to be very dedicated to fighting for your loved one’s rights. I also highly appreciated the fact that David kept us informed and empowered throughout the whole process.
Mr. Benowitz is an incredibly knowledgeable and dedicated professional. His commitments to social justice and community outreach are exemplary. I wholeheartedly recommend him for any matter.