A judge in the court that handled the criminal case has the power to seal:
- a first time drug possession conviction where the person did not violate any requirements connected to being on probation or a “CWOF” (continuance without a finding) such as going to drug treatment or doing community service;
- any cases where you were found “not guilty;”
- any cases that were dismissed or ended in a nolle prosequi (a case dropped by the District Attorney) even if you were on probation.
Before May 4, 2012, dismissed cases with supervised probation were treated like convictions and could not be sealed by a judge.
If you are not a citizen, you need to consult with an immigration lawyer before sealing your records. You will need certified copies to apply for citizenship at a later time and certified copies of papers from your case(s) for hearings on your immigration status. If your cases are sealed, you might miss a deadline to file copies of the criminal records in time for your immigration case.
It often is a good idea to get a certified copy of the complaint and docket and the police report in case you need it in the future. If you apply for a job with the federal government (U.S. Census, Social Security Administration, IRS, etc.), an FBI background check usually shows a criminal case was filed, but it may not say what happened at the end of the case. You can use the certified copies to explain what happened in your case without having to go back to court to unseal your record.
Burden of proof
The level of proof you must show to seal a case is high and public notice of your hearing on a petition to seal is posted at the courthouse. The judge only can seal the record if leaving the record open puts you at risk of harm and your interest in sealing the record is greater than public’s constitutional right (under the First Amendment of the Constitution) to see the record. The judge must find there is a “compelling interest” in sealing the record and that “substantial justice would be served” by sealing the record.
The process for sealing of cases in court is free. To seal your cases, you need to file one or more of the following documents in the court that handled your criminal case.
☐ Petition to Seal (Get this form online or at the courthouse)
☐ Motion to Seal Records (usually required by courts that use a 2 step hearing process)
To increase your chance of success in court, it may help to file other documents such as:
☐ An Affidavit (sworn statement) explaining how your CORI hurts you and why the judge should seal your case. For example, you got rejected for jobs, internships, and/or housing, are unemployed, on public assistance because of your record.
☐ Support letters from professionals or others saying positive things about you and explaining how your CORI hurts you. For example, after your last case, you got a GED, finished job training or drug treatment, and are working hard to get your life on track, but you get rejected for jobs or other opportunities because of your CORI. See a sample changed person letter.
☐ Rejection letters from employers denying you jobs, especially if based on your CORI.
☐ Make copies of everything you file in court.
Look at some sample formsthat might be helpful to you in filling out your own forms:
Sample Petition to Seal for sealing CORI by mail.
Sample Petition to Court to Seal Adult or Juvenile Criminal Record and Motion to Seal Record This is just a sample to look at. To file this petition you need to get the special multi-colored, triplicate form from the court where your case was heard.
Where to file
If you want to seal cases in more than one court, you have to file paperwork in each court. The only exception is Boston Municipal Court (BMC) which permits a person trying to seal 3 or more BMC charges to file a petition to seal all the BMC cases or charges in one division of the BMC.
To make sure you know about all your cases that might be sealed, get a copy of your CORI.
When to file
There is no waiting period to file a petition to seal a non-conviction. However, if you are in jail or have criminal cases still going on in court, your case for sealing of records is weak. Once a reasonable amount of time has passed after your last conviction and last court date, it may be easier to convince a judge that you are not likely to get in trouble with the law in the future and there is no need to keep your record open.
You have a right to look at your criminal case files at the courthouse. This might be helpful if you have trouble remembering what happened in your cases or the CORI is unclear.
The legal standard to seal a criminal case
To seal your records, the judge must find that the value of sealing your records outweighs the value of keeping the records open to the public. There has to be “a compelling interest” that outweighs the public’s First Amendment presumption of access to your records.
The Governor’s Executive Order on CORI says the Commonwealth has “compelling interests” in “empowering individuals to obtain gainful employment and housing” which “reduces recidivism and increases the likelihood of successful reintegration into society”. Executive Order 495.
Sealing of your case must be in the interest of “substantial justice.” You must show that you “risk suffering specific harm” if your record is kept open and why it is fair to seal it.
For example, a judge might seal your records because you are unemployed, homeless and have no income because your CORI prevents you from getting a job even though you’ve stayed out of trouble and have worked hard to get your life back on track.
Evidence of “rehabilitation” or positive things you have done such as finishing a job training program; getting a GED or a degree, diploma, or training certificate; doing community volunteer work; or graduating from a substance abuse or other treatment program are examples of things that may help a judge decide to seal your records.
The court process
After you file your paperwork in court, you will have one or two hearings. If the court uses a two step process, the judge enters an order at the first hearing deciding whether it is likely your case(s) will be sealed based on your circumstances. If the judge rules in your favor, a second hearing will be scheduled where the judge will make the decision about whether to seal your record(s). Notice of the second hearing will be posted in the court house in or near the clerk’s office. The District Attorney will be notified of the hearing.
If the court uses a one step process, they post notice of the hearing in the clerk’s office and you must appear at the hearing which will be your final hearing.
If you lose at a hearing, you should seek legal advice from an attorney immediately.
Job applications after you seal your record
If an employer, including a state, county, and/or city government employer in Massachusetts seeks information about your sealed case, you may answer “no record” as to the sealed record.
Produced by Greater Boston Legal Services Last updated March 2013