How do I expunge my criminal record?  How do I seal my criminal record?  What is the difference?  These questions are understandably very confusing, and to most are synonymous.  However, in Massachusetts, a Motion to Expunge a Criminal Record and a Motion to Seal a Criminal Record require two very different standards.

Expunging a criminal record means to effectuate a complete eradication of that criminal offense or, in certain circumstances, issuance of a civil restraining order.  For expungement, the individual petitioning the court must meet the highest standard set by the court of “fraud on the court.”  You may wonder, what does fraud on the court mean?  There are a myriad of Massachusetts cases aimed at defining and outlining the appropriate definition of fraud on the court, but in sum, a fraud on the court has occurred when a party to a particular action, through perjury, unconscionable scheme, or the like undermines and manipulates the judicial system’s ability impartially to adjudicate a matter.  The court even distinguishes between a false allegation, which alone is not enough, and a deliberate scheme forming the basis of a larger pattern of harassment.  On a Motion to Expunge, the petitioner must make this showing by clear and convincing proof of the same.

A Motion to Seal a criminal record, in contrast, has been made easier by the 2014 Massachusetts Supreme Court decision in Commonwealth v. Pon.  Sealing a criminal record does not eliminate the entry in your criminal history, but significantly limits the access any outside party would have to that charge, conviction or dismissal.  While not every charge can be sealed, most are eligible for sealing within a designated time period from the date of resolution or, in a case where the defendant was incarcerated, the date of release from custody.   Many cases can be sealed relatively easily through the Board of Probation, however not all.  The Commonwealth of Massachusetts provides a website on how to begin the sealing process for those cases that are eligible.  For those cases that are not eligible currently, the Pon Court expanded the ability of a Judge to authorize discretionary sealing before a petitioner has met the pre-designated time requirement.

Prior to the decision by the Pon Court, the Commonwealth required a petitioner for sealing to show that the value of sealing his/her record clearly outweighs society’s constitution right to have access to that information.  The court in Pon decided that there exists only a common-law presumption of public access.  Thus, the petitioner must only establish that good cause exists for sealing his/her criminal record.

If you looking to either Expunge a Record or Seal a Record, Contact Attorney Kristen Bonavita for a free consultation at 978-376-6746.