Topic:
CRIMINAL RECORDS;
Location:
CRIMINAL RECORDS;
Scope:
Other States laws/regulations; Connecticut laws/regulations;

OLR Research Report


The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH




April 19, 1995 95-R-0604

TO:

FROM: Mary H. Brown, Research Fellow

Sandra Norman-Eady, Senior Attorney

RE: Erasure of Criminal Records

You wanted to know the procedure in Connecticut for erasing criminal records, whether the records are physically destroyed, and who has access to erased records. You also asked about laws similar to Connecticut's. You requested that we compare Connecticut's law to those of two neighboring states.

SUMMARY

Criminal records may be erased in Connecticut for a number of reasons, including when a criminal case is dismissed or when a criminal defendant is acquitted. No affirmative action is required by a criminal defendant to cause his record to be erased. When the criminal case is dismissed or a criminal defendant is acquitted, erasure takes place upon the expiration of the time to file a writ of error or take an appeal. If an appeal is taken, erasure takes place upon a final determination sustaining the trial court's decision. If a case is nolled, erasure takes place within 13 months after the nolle was entered. And if a pardon is granted, erasure takes place immediately.

Criminal records that are erased due to the decriminalization of the offense for which a defendant was convicted are the only ones required to be physically destroyed. Other erased records may be physically destroyed if the defendant requests. Criminal defendants who are the subjects of erased records and certain prosecuting and defense attorneys have access to erased records.

We have included summaries of the laws of 10 states regarding the sealing of criminal records. Not one of them has a law identical to Connecticut's, but some have elements of erasure law that are similar to Connecticut's. Most of these states provide penalties for violation of the seal order. A number of states allow a person to answer in the negative regarding an arrest record if such record has been sealed. In addition, many statutes prohibit an employer, educational institution, or government agency from requiring a person to reveal the existence of the sealed records.

BACKGROUND DEFINITIONS

Erasure of record is used synonymously with sealing, expungement, and closing. “'Erased' means at the very least nondisclosure,” according to Black's law dictionary. Many of the statutes we surveyed explicitly state that expungement, for example, does not mean physical destruction. “A Field Guide to Court Information in Connecticut,” issued by the Judicial Department, explains that erasure means “that court staff must treat the matter as if it never occurred” (CGS 54-142c).

CONNECTICUT ERASURE LAWS

Procedure

In Connecticut, criminal records may be erased when: (1) the criminal case is dismissed or nolled, (2) the defendant is acquitted, (3) a pardon is granted, or (4) the criminal offense for which the defendant was convicted is subsequently decriminalized. If the case was not prosecuted, the records are sealed after 13 months. If a pardon was granted prior to Oct. 1, 1974, a person may petition Superior Court to erase his records. For pardons granted after that date the records are erased automatically (CGS 54-142a (d)). In the other instances the records are sealed after 20 days. The disposition and details of sealed records can be disclosed by the court clerk to the defendant (CGS 54-142a (e)) or by the court to the defendant, defense counsel or prosecutor for limited use (CGS 54-142a (f)).

The records that are erased are those located in the records center of the Judicial Department. These records include law enforcement agency records but do not appear to include records maintained by a prosecutor or defense attorney. Law enforcement records that are not retained in the records center must also be erased.

The court clerk must send an erasure notice to relevant laws enforcement agencies holding criminal records. The agencies must erase their records (CGS 54-142a(e)).

Are Records Physically Destroyed?

According to the Judicial Department, records or files ordered erased are not physically destroyed. They are placed in an envelope with the date of the order to seal, and the name of person sealing the document marked. The envelope must be marked with the word, “sealed” and taped closed if necessary to secure it. The sealed records have to be stored securely and may be stored in an area separate from general files. But the law requires the court clerk or record keeper to destroy erased records when requested by the defendant (CGS 54-142a(e)). Additionally, in cases where a person convicted of an offense that has been decriminalized files a petition with the court or records center of the judicial department for erasure, the records are to be physically destroyed (CGS 54-142d).

Who Has Access to Erased Records?

If the records have not been physically destroyed, the defendant, his counsel, the prosecuting attorney, and the crime victim may have access to certain records for limited purposes. A person whose records have been erased may have access to those records through the court clerk or official in charge of the records. The defendant and counsel as well as the prosecutor may have access to erased records only through the court. The defendant may gain access for false arrest proceedings. The prosecutor and defense council may have access for perjury charges brought by the prosecutor (CGS 54-142a(f)).

A crime victim or attorney for the victim whose case has been erased may be told of the erased records if an inquiry is made within one year of the final disposition. Information may also be divulged to the victim from an erased record, but the victim may not be told the identity of the arrested person unless the person is involved in a civil suit (CGS 54-142c(b)).

ERASURE LAWS IN OTHER STATES

Many states provide for court petitions to expunge criminal records when defendant's are acquitted or the charges are dismissed or nolled. A few states provide for one-time expungement only. Others specify that a person whose records have been erased does not have to divulge the expungement in any instance.

Delaware

Dismissed charges, acquittal or failure to prosecute leads to expungement of criminal records by petition to the court. Disclosure of expungement is permitted only if the person involved applies for a law enforcement job or a law enforcement agent requests it in the line of duty (DCA 11-4371 to 4375).

Georgia

A municipal court judge may seal criminal records, which remain accessible to criminal justice officials, if the charges were dropped, not prosecuted, or the charges were the subject of pretrial disposition (GCA 17-8-6).

Mississippi

If a first-time offender was convicted of a misdemeanor before the age of 23, he may petition the court for an expungement of his records. But, the court must maintain a nonpublic record. This is also the case for certain drug possession charges committed before the age of 26, and in some cases for drug offenses for which probation was given immediately (MCA 99-19-71).

Missouri

Missouri closes criminal records if an arrested person is not charged within 30 days. Records are closed if the case is not prosecuted, the charges are dismissed, the person is found not guilty, or the sentence is suspended. Closed records are open to the defendant, courts, law enforcement agents, child care and federal agencies. Closed records are kept separate from general records and held confidential. Where necessary, pages of the public record have to be retyped or rewritten without the closed sections, or those sections must be blacked out. A person may petition the court to expunge the records, which in Missouri can mean the physical destruction of the records, or blacked out and removed from electronic files (MSA 610.100 to 610.123).

Oklahoma

An expungement order is issued after a petition to the district court followed by a hearing. Even if the court doesn't issue an order to seal, it may issue an order restricting access to the records. Basic identification information will not be sealed. Sealed records may be inspected, after petitioning the court, by the defendant, attorney general or district attorney. Ten years after expungement, the records are obliterated or destroyed (OSA 22 18, 19).

Pennsylvania

Pennsylvania provides for expungement “as a matter of right to any person only once” for a case resulting in acquittal, dismissed charges, or no prosecution. But, the state must keep a confidential list of sealed records (PSA 35 780-119).

South Carolina

South Carolina also has a one-time expungement law for a first offense. A person applies after one year. Expungement is not permitted for motor vehicle violations. The state must also keep a nonpublic record of the offense. The information is not releasable under the Freedom of Information Act (S.C. Code Ann. 22-5-910).

Utah

A person can petition the court for expungement if arrested without a warrant. A person convicted of a felony other than a capital felony can petition for expungement following specified waiting periods (years) for categories of crimes. At any rate, records can be expunged after 20 years. The court must keep and index all expunged records, divulging index information only to the Board of Pardons and Paroles, State Office of Education, federal authorities, and the division of occupational and professional licensing. The records can be inspected by the court or counsel for a judicial sentencing and then resealed (UCA 77-18-9 et seq.).

Massachusetts and Rhode Island Compared

In Massachusetts, the law simply provides that a person convicted of a misdemeanor may petition the Commissioner of Probation for the sealing of the records after 10 years. A convicted felon can petition after 15 years. The petitions are granted provided there are no prior or subsequent convictions. Sealed records cannot disqualify a person for a public service appointment (MGLA 276-100A et seq.).

Rhode Island allows a person acquitted or otherwise exonerated to petition the court for the sealing of the records. The sealed records must be removed from the active files. A first offender convicted of a misdemeanor may petition the court for expungement after five years, and a felon may petition after 10 years, if the crime was not violent. Unlike Connecticut, Rhode Island requires that expunged information be divulged when a person applies for a job in law enforcement, teaching, coaching, or early childhood education (R.I. Gen. Laws 12-1-12 et seq.).

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