Leonardo Angiulo: Expunging Criminal Records for Victims of Identity Theft

Monday, September 01, 2014

To expunge a criminal case in Massachusetts means that any and all record of the event are erased and there is no mention of them ever existing.  For many years, this was considered to be an event which was hypothetically possible, but entirely improbable.  A recent case gives some hope in the age of digital identity theft.

The August 27, 2014 Massachusetts Appeals Court case of Commonwealth v. Octaviano Alves was published on the heels of a game changing Supreme Judicial Court ruling about sealing criminal records that I discussed last week.  This weeks Alves case, however, talks about more than just shielding cases from public view through the sealing statute of MGL c. 276, §100C.  This case talks about when any and all documentation of a criminal charge should disappear.

Many practitioners have come to think that enxpungement is only a theoretical concept rather than a possible outcome. This was based on cases with facts that many people believed justified the purging of records, but failed to qualify for one reason or another.  Take Commonwealth v. Boe from 2010 as an example.  In that case, the witness to a car accident identified a short hispanic male as the operator of a car that left the scene of property damage.  The responding officer chose to issue charges against the registered owner of that car; who happened to be a woman.  The Supreme Judicial Court chose not to allow the record of prosecution to be expunged because the officer had intended to file charges against this particular defendant. This same logic, that records accurately reflecting a decision to charge an individual are not eligible for expungement whether the action was right or wrong stands to this day. 

The 2012 case of Commonwealth v. Moe provides another set of facts that leaves some people scratching their head.  According to that ruling, even if an alleged victim admits to lying in a police report, and doing so in an attempt to extort money from the defendant, the records of a case cannot be expunged. 

The one question that seems to decide whether or not a case will be expunged is: whether the court records themselves are false and misleading.  Unlike the Boe and Moe cases, the Alves court reasons, the defendant here was never intended to be the target of a prosecution.  The only reason for his involvement came as a result of a courthouse clerical error that linked him to the case when another man, with the same name but a different date of birth, should have been.  Because this defendant did not commit the offense in question, and was never suspected of doing so, the court said any connection of him to the case should be expunged. 

In coming to this conclusion, the Alves court relied on a case that the Boe and Moe cases distinguished their facts from: Commonwealth v. S.M.F.  In that case, a person who may have stolen S.M.F.’s identity essentially impersonated her upon arrest by giving false information including her name and personal data.  The officer used the information provided to get a complaint listing S.M.F. as the defendant even though the real perpetrator was someone else.  In that case, the Appeals Court ruled that expungment was proper because “no rational public policy favors the preservation of a fictitious record.”

By aligning the facts of Alves with those of S.M.F., the court sets an important precedent that protects people from paperwork that never should have been.  Most people can appreciate that even a sealed criminal record can create a “cloud of prosecution” that will follow a person through their lives.  As case law stands now, those people who face such a burden because of an identity theft or a mistaken computer entry should breathe easy.  They should, however, keep in mind that it is only if they file a motion, and it gets allowed, that their record will be clear. 

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected]

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