The Limits of Expunging Your Criminal Record

By Janet Portman, Attorney

If you’ve successfully expunged, or sealed, your criminal record, in most situations you can answer “No” when asked whether you have a record. But what happens when someone—a potential employer, or a prosecutor, for example—asks that any records pertaining to you be disclosed to them? Will the court (or the clerk in the records office) always say “No record,” in spite of the order of expungement? That depends on the law in your state and who’s doing the asking.

Below are common examples of when your sealed or expunged record will come to light.

Asking to Seal Your Record Again

Many states that allow convicted defendants to expunge their records offer the remedy only once. After that, records of criminal convictions cannot be sealed. Logically, in order to determine whether your current request to seal a record is your first, a court will need to look through its files to see whether you’ve done this already, so your “expunged record” will be accessible for this purpose.

Subsequent Brushes With the Law

Many offenses become more serious when the defendant has a prior conviction on his record, for that offense or for another one. For example, petty theft (theft of property worth less than a specified amount, often $500) is usually charged as a misdemeanor when it’s the defendant’s first such charge. But if the defendant has a petty theft conviction on his record, he can be charged with “petty with a prior,” which can elevate the offense to a felony.

Clearly, in order to know whether “petty with a prior” is an appropriate charge, a prosecutor needs access to the defendant’s criminal record. In this situation, even an expunged petty theft conviction will be accessible to the prosecutor, and usable to substantiate the heftier subsequent charge.

Use at Sentencing

If you get into trouble with the law again, you may find yourself facing sentencing. Many times, sentences will be increased for repeat offenders. Much as a prosecutor can gain access to your record to determine whether an enhanced charge is appropriate, so too can a prosecutor and judge consider “expunged” records when asking for and choosing a sentence for a subsequent conviction. Prior convictions can also eliminate the option for “diversion” (counseling in place of a trial) or probation. Felony priors that count as “strikes” in a state’s Three Strikes sentencing scheme will never go away, even if expunged (which is rare).

Working for the Government

Many states, and the federal government, allow disclosure of an expunged record in limited situations in which the public good is balanced against the individual’s expectation that the expunged record will remain off-limits. For example, records might become available during background screening for government positions, such as court administrative jobs; or positions with a juvenile court or agency delivering juvenile services. Sealed records might be available to law enforcement in the course of their investigation of a possible crime, and to agencies that review handgun license applications.

Working in Sensitive Professions or Occupations

In some states, individuals who want to work as public school teachers, corrections guards, or police officers should expect that their employers will have access to expunged records. Agencies reviewing applications for professional licenses, including law, pharmacy, or medicine, may also have access.

Using a Witness’ Record Against Him in Court

When someone testifies at a trial or other court proceeding, the opposition often tries to discredit the witness by bringing up unsavory, but relevant, aspects of his or her past. Historically, if a witness had any felony convictions, the jury could be told, on the theory that anyone who had broken the law so seriously might not be an honest witness.

Modern rules from state to state limit the types of felonies that can be disclosed, but generally speaking, those that reflect on a person’s honesty (known as “moral turpitude convictions) are often fair game—even when the conviction has been expunged.

Expunged Records and Civil Cases

Sometimes expunged records become relevant in civil cases, such as libel. For example, suppose a newspaper reports on a citizen’s prior conviction for a crime. If that conviction had been expunged, can the citizen bring a libel action against the newspaper? Courts have answered this question differently; those that have not allowed a libel suit to prevail have relied on the established defense that the truth of the statement will defeat a libel suit. Sometimes, the court that hears the libel case is the same one that ordered the plaintiff’s record expunged. These courts are in the interesting position of having first expunged a conviction (decreeing that it never occurred), then ruling that a recitation of the event is the truth.