Creation of a Criminal Record
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A defendant’s Massachusetts state criminal record or Criminal Offender Record Information (“CORI”) is created when charges are filed, and the defendant is arraigned. Once arraigned, the charges will appear on the defendant’s CORI. When certain requirements are met, a defendant may be eligible to petition the Massachusetts Commissioner of Probation (hereinafter “Commissioner”), or a Massachusetts Court, to seal an adult and/or juvenile criminal record from public view.
Sealing an Adult Criminal Record
In order to successfully petition the Commissioner to seal an adult criminal record, the following criteria must be met:
- (1) for misdemeanors, all sentencing terms, including incarceration or probation, must have been completed not less than three years from the date of the petition, and for felonies, not less than seven years, except for motor vehicle offenses where the penalty does not exceed a fine of $50.00;
- (2) the criminal record must not contain any misdemeanor convictions within the preceding three years of the petition, or felony convictions, within the preceding seven years of the petition, except for the previously mentioned motor vehicle offenses; and
- (3) the offense sought to be sealed cannot be a sex crime, with limited exception.
Sex crimes are not eligible for sealing prior to the passage of 15 years from when all sentencing terms are complete, or for as long as the offender is required to register as a sex offender in any state, whichever is longer. Further, Level 2 or Level 3 sex offenders are never eligible to seal their underlying sex offense convictions. Lastly, violations of M.G.L. c. 140, § 121 to 131H, and violations of M.G.L. c. 268 or 268A, except for resisting arrest, are also ineligible for sealing. If these requirements are met, the Commissioner will automatically seal a Massachusetts criminal record upon request.
Sealing for Decriminalized Offenses
Notwithstanding these requirements, a defendant may also petition the Commissioner if the recorded offense is no longer a crime under Massachusetts Criminal Law, except where the elements of the offense continue to be a crime under a different statute or section of the law than the section of law reported on the record. If this circumstance is present, the Commissioner will also automatically seal the record upon request.
Sealing a Juvenile Criminal Record
In order to successfully petition the Commissioner to seal a juvenile criminal record, the following criteria must be met:
- (1) any court appearance or disposition, including court supervision, probation, jail sentence or parole must have been completed not less than three years from the date of the petition, regardless if the crime is a misdemeanor or a felony; and
- (2) the record must not contain any delinquency adjudications or convictions in any jurisdiction within the preceding three years of the petition, except for the aforementioned motor vehicle offenses.
If these requirements are met, the Commissioner will automatically seal the juvenile record upon request.
Sealing After Case Dismissal
You may also petition a Massachusetts Court to seal a criminal record when a criminal case has been dismissed by either the Court or the Commonwealth (nolle prosequi). In this instance, a petitioner must show that good cause exists for sealing. The Court will apply a balancing test to determine whether good cause exists to justify overriding the general principle of publicity for criminal records.
When conducting this analysis, the Court will look to the following factors:
- (1) particular disadvantages identified and arising from the public availability of the criminal record (i.e. effects on employment, schooling, housing);
- (2) evidence of rehabilitation (i.e. completion of probation, mental health or substance abuse treatment, sobriety, no further contact with the criminal justice system);
- (3) likelihood of recidivism or success;
- (4) the passage of time since the offense and dismissal; and
- (5) the nature and reasons for the particular disposition.
Automatic Sealing After Certain Outcomes
Lastly, if you are found not guilty after trial, a judge finds no probable cause, or no true bill is returned by grand jury, the case will automatically be sealed from your criminal record without needing to file a petition.
District Attorney Offices throughout the Commonwealth routinely present evidence of suspected crimes to investigative bodies of citizens from the community known as grand juries in an attempt to obtain an indictment of criminal charges. If a grand jury votes to not indict a suspect, it returns a no true bill, and it is automatically sealed from your criminal record.
Court Procedure for Sealing Petitions
Procedurally, a petitioner seeking to seal a criminal record may be required to appear in court one or two times, depending upon the judge and/or court where the petition is filed. Upon receiving a petition to seal, the judge must first determine if good cause exists for the petition to proceed to a formal hearing. Some judges and/or courts will make this determination administratively, while others will require the petitioner to appear in court for a preliminary hearing to make this determination.
Either way, if a judge finds that good cause exists, the court will schedule a final and formal hearing date on the petition to seal. Before the hearing, it will publicly post the petition at the courthouse for at least seven days to allow any member of the public time to object to it. The petition then proceeds to a formal hearing before the Court where argument for and against sealing is made. If a petitioner is dissatisfied with the Court’s decision, it may be appealed.
What Sealing Does and Does Not Do
If your Massachusetts criminal record is sealed, the charges are removed from your CORI, and the file is sealed at the courthouse from public viewing. However, the criminal record is not permanently erased, as it still remains accessible to court staff, members of the District Attorney’s Office, and law enforcement agencies.
The sealing of a record in Massachusetts also does not remove the charges from your federal criminal record, which is otherwise referred to as your arrest report. To accomplish this, you must explore a separate and distinct procedure known as the expungement of a criminal record in Massachusetts.
Contact a Criminal Defense Lawyer
If you wish to have your criminal record sealed in Massachusetts, please contact Massachusetts Criminal Defense Lawyer, John L. Calcagni III, today for a free consultation at (401) 351-5100.