As an expungement lawyer in DC, the main difference is that the process isn’t driven by the government. When somebody allegedly commits a crime, the police respond, investigate, and make an arrest. Then, maybe do some additional investigation, interview additional witnesses, gather physical evidence like fingerprints, and if it involves a weapon, they collect the weapon, things like that. Then, they would refer all of that evidence, their reports, and witness statements to the prosecutor who makes the decision whether to file charges against the defendant. If the government decides to do so, then they really are in the driver seat. They make that decision on their own. They come to the court and say, your honor, we have probable cause to believe that this person committed a crime and we need you to oversee criminal proceedings against that person.
Everything is really driven externally by either the government or by the court and eventually there’s some sort of resolution of the case.
In a record sealing motion, all of the effort is really on the person trying to seal their record. The defendant is going to be the one who’s gathering the evidence. The defendant is going to decide when the best time to file this motion with the court is. They’ll need to decide if they have enough positive life experiences since the time of the arrest to file an interest of justice motion and be successful. That question is really going to be decided by the defendant and his or her attorney.
The other big difference between a regular criminal case and a record sealing motion is there are really no negative consequences. You could file a record sealing motion and if it gets denied, then the person is not going to end up in jail. The worst that can happen is the judge denies the motion and that person has to deal with the criminal record going forward.
The very first thing I want to know is why is that person calling in today. I want to know something about that person before I know anything about the crime that they were alleged to have committed you know.
The reason for that is because knowing what motivates a person will help me properly counsel that person and give them a fully informed picture of what their options are and how they can potentially move past their offense.
The second thing that I look at is the person’s criminal history. Do they have many offenses? Do they have a few? Are they serious offenses? Are they minor offenses? Within those offenses, are there particularly bad facts? If somebody is charged with simple assault, was it a bar fight which the judge might be a little more inclined to seal a record? Or was it a domestic situation where a man or a woman was arrested multiple times? Judges are probably going to take a less favorable view of defendants in more serious cases.
One of the most challenging things about dealing with record sealing cases is really disappointing prospective clients. A lot of people think that they’re just going to be able to get their record sealed because of certain amount of time has passed because they did a little bit of research online but they fail to appreciate that this is really an extraordinary remedy. For the first two hundred something years of this country’s history, people really couldn’t seal their criminal history whether they were innocent of a crime or not because it was very, very difficult. In some circumstances only a pardon by a governor or the President would seal a case.
So, even though the DC Council has passed the statute that will allow people to seal their records, it’s very recent and many judges come from an experience where reconciling really wasn’t an option, so they’re skeptical of these motions. Arguments need to be carefully crafted to overcome that skepticism.
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