Burden of Proof - Expungement Law

Burden of Proof Analyzed

We briefly discuss Burden of Proof on our expungements analysis page, but we wanted to expand this further. We also discuss the burden of proof in the video below:

When it comes to expungement law the state or the petioner may bear the burden of proof, depending on how the case was resolved. If a petitioner moves for an expungement on grounds that it was resolved in their favor or they completed a diversion program or stay of adjudication, the state must prove by clear and convincing evidence that the burden to the public in not having the records outweighs the disadvantage to the petitioner in not having the records sealed. When trying to seal a conviction, the petitioner must prove by clear and convincing evidence that the benefit to them is commensurate with the public’s burden. Note the subtle difference between the two. This subtlety is just one of the nuances that makes expungement law complex.

The State’s Burden of Proof

The state holds onto criminal records for the purpose of calculating future sentencing, evaluating dangers to the public, and finding suspects for investigations. The state has the burden of proof when the individual’s charges were dismissed, they were found not guilty, or they completed either a stay of adjudication or diversion program. The state must prove that the benefit of keeping the individual’s records for their purposes outweighs the disadvantages for that individual by having your record. Although this is easier than having the burden of proof on the petitioner, it is still very difficult for many people to prove without an attorney.

The Petitioner’s Burden of Proof

The petitioner (you), holds the burden when they were convicted of a crime. When they hold the burden of proof, they must show that the benefit of having the record expunged is equal to the disadvantage to the public. This is a difficult standard to reach as the state has many reasons for keeping the record. They will fight the petition with great determination for this reason alone. It is these instances, when the petitioner has the burden, that it is most difficult for an individual to obtain an expungement on their own. This is why you need to contact one of our expungement attorneys today. Don’t wait, get the second chance you deserve!