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Who Carries the Burden of Proof in Expungement Cases?

Posted by David L. Clarke | Apr 27, 2017 | 0 Comments

Have you ever heard the phrase “innocent until proven guilty?” The criminal justice system is centered around this concept, which is known as the “burden of proof.” Essentially what this means is that one side is going to have the onus to prove the defense is either innocent or guilty. Because an expungement is a criminal proceeding, the same onus is present: one side must prove their part of the story beyond all reasonable doubt in order for the action to be taken.

However, unlike a criminal proceeding where anyone who is accused is assumed innocent until proof is shown otherwise, an expungement proceeding is actually the opposite. In order to have a criminal record expunged, the convicted individual must be able to show that they have recovered from their criminal conviction. This means showing they have been rehabilitated and that they are ready to become a contributing member of society.

There are several ways to do this, and a skilled Murfreesboro expungement attorney can work with you to prepare your case and best present it before the court that will ultimately make the decision as to whether or not your record will be eliminated. When making this decision, the court will consider several factors:

  • The nature of the crime (including how it is classified—most misdemeanors qualify for expungement but very few felonies do)
  • The risk exposed to the public by expunging your record (will expunging your record place the public at risk of you repeating the crime again?)
  • Steps you have taken towards rehabilitation
  • The amount of time that has passed since the crime occurred and your sentence was completed (you must wait a minimum of five years since your sentence completion to qualify for expungement at all)
  • Your criminal record in total (you may not have more than one conviction on your record in order to qualify)
  • Recommendations from law enforcement officials and the victims in your case
  • Steps you have taken since the crime towards reintegrating into society
  • Any other relevant information

Just because you qualify for an expungement does not necessarily mean it will be granted to you. You must demonstrate to the court that you have advanced in your life and learned your lesson from your previous conviction. Knowing what the court will be looking for will help you better-prepare your case and work to gather evidence and develop arguments that will present your efforts to better yourself before the judge. Your ultimate goal is to convince the judge and anyone else who might have any objections that you have learned from your mistake and that the criminal conviction on your record should be wiped clean.

If the judge grants you an expungement, your criminal record will be destroyed, as though it never existed. This can be extremely beneficial, as you'll be able to freely seek employment, housing, and many other things that would otherwise be hindered by a criminal conviction. However, it's important to remember that this isn't something you can do over and over again—expungement is only an option once. If you are convicted of another crime after expungement, regardless of whether it's the same or different, your record will then stay for life.

If you would like to learn more about the expungement process and find out whether or not you qualify, call The Clarke Law Firm now at (615) 796-6299 to schedule an initial consultation and discuss your options.

About the Author

David L. Clarke

As a Murfreesboro attorney, I handle criminal defense cases, personal injury cases, and divorce/child custody cases. I realize that when someone hires me for one these legal issues, they are going through one of the toughest times in their lives. When hired on your case, I will meet with you as o...


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