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Criminal Charges and Convictions
New Jersey’s Supreme Court Provides Guidance in Filing Public Interest Expungements

A recent New Jersey Supreme Court decision addresses the way lower courts handle “public interest” expungement applications. These are cases where a person’s criminal record is cleared because it is in the public’s interest to do so. If you have a criminal record that you would like to have cleared, this decision may make it easier for you to file your application.

When can I ask the court to expunge my record?

Previously, most applicants would have to wait 10 years before asking the court to expunge their indictable convictions. Now, you can apply sooner than 10 years if:

  1. You have not had any new convictions since your original offense;
  2. At least five years have passed since satisfaction of all sentence obligations (for example, parole, probation, fines); and
  3. The court finds that approving your request is in the public interest. It must consider the nature of the offense and the applicant’s character and conduct since conviction.

While the first two requirements are straight-forward, courts may use their discretion in determining the third. The court will also consider the third prong if you are expunging a third or fourth degree drug sale or distribution conviction.

What can the court consider regarding the “nature of the offense”?

Generally, the court may review all information about an offense that is included on a Judgment of Conviction, or other court-generated dispositions. A disposition is a document that provides information on the status or results of an arrest. The court may also consider proven or undisputed facts about the crime, including details about your actions and the harm that was caused by them.

The court may also consider related charges that were dismissed, as long as the underlying facts were not disputed or were proven to be true. In one recent case, the court considered an applicant’s prior arrest for domestic violence, even though the arrest did not lead to a conviction, where the victim provided a certified document and a police witness described the physical evidence of abuse.

Is there anything about the “nature of the offense” that the court cannot consider?

The court may not consider unproven claims or allegations. The state must present evidence if it claims that there are “contested” facts that are not of record.

In considering the nature of the offense, the court may not impose a “categorical” or generic denial. This means that the court cannot deny your application simply because it considers a certain type of offense “serious.” It must fairly consider any evidence of rehabilitation you provide.

What can the court consider about “character and conduct since the conviction?

The court may consider almost anything related to the question of whether you have been rehabilitated. Examples include:

  • Your behavior and performance during incarceration, parole, or probation
  • Your family and community ties
  • Your education and employment
  • Whether you have paid all fines and met other legal obligations
  • Efforts you have made to live a crime-free life
  • Rehabilitation activities.

The court may also consider whether your conviction has created barriers in your ability to lead a productive life, and your character and conduct before the conviction.

You may submit a written statement with your public interest petition along with any evidence you have that explains the nature of your offense, and your character and conduct since your conviction. You should try to submit as much positive evidence as possible, such as:

  • Diplomas, GED, or other educational and vocational certificates and licenses
  • Work history and resumes
  • Letters of personal and professional reference
  • Documents showing that you have paid or otherwise met all of your legal obligations.

Depending on your circumstances, the court might consider steps you have taken to overcome drug addiction, family obligations and responsibilities, and community and volunteer work.

What else do I have to submit?

In addition to the above, you must also submit transcripts of all your plea, trial and sentencing hearings as well as a copy of the Pre-Sentence Investigation report. This is often a difficult task because transcripts may be archived and difficult to locate by the courts—especially if they are old. Also, a transcribed hearing may require a deposit of hundreds of dollars. If these documents cannot be obtained, you should be prepared to explain the steps you took to try to obtain them, and why you were unable to do so.

Who has the burden of proof?

You, the petitioner, have the burden of proof in public interest expungements. That means it is up to you to provide as much evidence as possible in support of your expungement and prove that your expungement is in the public interest. In their consideration of your request, the court will decide whether the need for your records to be kept on file outweighs the benefits of granting your request.

Should I request a hearing? How?

You should request an in-person hearing in order to protect your rights in case there is an objection to your petition. At a hearing, you should be able to question the evidence used against you and introduce evidence of your own to support your application. If there are any facts in dispute (for example, if the prosecutor says that you violated probation, and you claim that you have not), they must be proven or disproven at the hearing. Another benefit of an in-person hearing is to allow the court to see you as a real person, rather than just reviewing your record on paper. Judges may make credibility determinations by evaluating your demeanor, body language, and ability to respond to questioning. In fact, some superior courts may require an in-person hearing specifically for this reason.

You may make a request for a hearing in connection with your petition and certification, or you may make a separate request. However you should submit it to the court well in advance of your scheduled hearing date. Follow up with the judge’s clerk to make sure that it has been received and to find out whether it was granted.

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7/27/2016