Motions to Seal

Whenever someone is charged with a crime in Massachusetts, the first step in the criminal process is the arraignment. An arraignment is a proceeding in court where the defendant is formally advised he is charged with committing a crime. If the prosecutor is requesting the imposition of bail or conditions of release, the judge will hold a hearing to consider the prosecutor’s requests. In most cases, arraignments are very quick proceedings that result in the defendant leaving the courtroom with instructions to return on a later date for a pretrial conference. However, something very important happens at the moment the defendant is arraigned – the probation department generates a CORI for the defendant. CORI, which stands for Criminal Offender Record Information, is another term for criminal record. If the defendant already has a criminal record at the time of his arraignment, the new charges are added on to his CORI. A defendant’s CORI contains his biographical information (including his name, date of birth, and social security number) along with every criminal charge he has ever faced and the outcome of the criminal charges (for example, whether they resulted in an acquittal, conviction, or dismissal).

Until recently, a defendant who had been charged with a crime would forever have a CORI that would be available to be viewed by potential employers, landlords, and others who had an interest in the defendant. This posed obvious problems to people who had criminal records, as they were less likely to obtain offers of employment or housing opportunities than people who did not have criminal records. Most troubling were those cases where defendants had been found not guilty of the crimes with which they were charged (or had the charges dismissed prior to trial), because the charges themselves were often used against the defendants even though they were vindicated.

In 2010, the Massachusetts Legislature enacted a law to provide a remedy to defendants who wanted to seal their criminal records. The law allowed defendants to petition to seal their criminal records within certain timeframes (for felonies, after 10 years had passed; and 5 years for misdemeanors). And, most importantly, people who had been charged with crimes but had their cases dismissed (or had been found not guilty) are now allowed to petition a judge to seal their criminal records immediately. In these cases, a judge may order the sealing of a defendant’s criminal record if “substantial justice” would be served. In determining whether substantial justice to seal exists, judges are instructed to consider: the particular manner in which the defendant’s criminal record is hurting his efforts to obtain employment; the passage of time since the charges; the nature of the disposition of the case; and evidence that the defendant has rehabilitated himself (by attending counselling, for example).

Attorney Spring has argued dozens of motions to seal in the last several years. Some judges allow almost every petition to seal while other judges deny nearly every petition. There have been recent decisions from the Supreme Judicial Court and the Appeals Court providing guidance to the trial judges who consider these motions, so hopefully there will be a more uniform application of the law in the future.

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