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Expungement of criminal records more likely?

Earlier Supreme Court of Virginia cases had suggested that factual innocence was a consideration in getting criminal record expunged under Virginia Code Sec. 19.2-392.2(A).

Not necessarily, the court said today in Brown v. Commonwealth. It had two cases to consider, one in which the circuit judge had ordered expungement and another one denying relief.

The key to winning expungement, the court said, is the absence of a guilty or nolo plea or of a finding that the evidence was sufficient for guilt.

Both cases involved deferred judgment in which a judge imposed conditions – alcohol treatment in one case and a parenting plan and community service in another – that the defendant met before the charge was dismissed. In neither case was there a finding that the evidence would have been sufficient for a conviction.

“[E]ach dismissal took place without a determination of guilt, without a finding of evidence sufficient  to establish guilt, and without penalties or conditions imposed by judicial authority,” Justice Cynthia D. Kinser wrote for the court.

Kinser also pointed out that the commonwealth dropped the ball on another component of the expungement calculus. Petitioners must show “manifest injustice” if the dismissed charges remain on their, and the commonwealth failed to assign cross-error on the point in one case and failed in the other to provide a transcript or statement of facts to support its contention that the petitioner had presented no evidence of such injustice.

By Alan Cooper

One comment

  1. Alan thanks for such an informative post!

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