Once the order for the expunction on misidentification is signed by a judge, is the District Attorney statutorily obligated to keep a copy of the expunction order for future record inquiries? Is the District Clerk statutorily obligated to destroy the District Clerk's created expunction file?

Good question. Expunctions are an odd duck anyway, and misidentification ones even more so. Basically, you're governed by 55.02 sec.5(f), which doesn't answer any of your questions. The only thing you're required to do upon receipt of this type of expunction order is delete all identifying information of the subject of the order (the ID theft victim) and replace it where possible with information of the real defendant. Unlike a regular expunction, you don't return the records to the district clerk.

The DA question is the easy part -- you're not obligated to keep the records and should delete all identifying information of the petitioner (the victim). You can keep the file under the name of the real defendant if you want to, as long as everything identifying your victim is redacted out. (Which later makes it impossible to verify who it was that got this expunged, but apparently the Legislature didn't think of that.)

The District Clerk question is harder. There's nothing in the Code one way or another about what the clerk should do with the expunction file itself where no records are actually returned to it. I would suggest treating that file the same as a regular expunction, which means destroying it one year after the order was signed.

I would suggest the DA probably would want to keep their file unredacted until close to that 1-year date too, just in case you have the other agencies calling you (like I do) to ask what they're supposed to do about this expunction order. But by the 1-year mark, I think all agencies should have their files destroyed, even the ones specifically related to the expunction.

Thank you so much for your reply, Andrea. It's reassuring to hear from others that this statute is quite unclear regarding the practical aspects of this process. Thanks, and I am sure to have more questions. Check back in.

Expunction really is a crazy beast. We recently had a case involving child sexual abuse. At punishment, defendant sought to suppress the testimony of two females who were there to talk about the extraneous sexual misconduct of the defendant years earlier. Defendant claimed that the State obtained the information illegaly, as the fruit of expunged records.

Turns out, over a decade earlier, defendant had been accused of similar crimes. Those crimes were investigated. Cases were presented to the grand jury. No billed. Then defendant claims he sought and received an expunction of those records.

Well, the prosecutor was rather surprised to learn about all this. The prosecutor not only was not in the DA's office when these matters took place, he didn't know they had existed or been expunged. He only knew he had discovered, through independent investigation, separate extraneous victims to sexual misconduct.

It was obvious that the extraneous offense testimony was admissible, because expunction doesn't destroy the memories of individuals, just records of an investigation. So, given the independent memory of the witness, her testimony was coming in.

Interestingly, the defendant dropped his motion to suppress when the judge reminded evereyone that a no bill did not prevent the state from re-presenting a case to the grand jury.

Now, during all of this, everyone was working from the assumption that the defendant (through his lawyer) was telling the truth about the expunction. Defendant never got on the witness stand and testified about the expunction or produced any expunction order. How, then, should anyone know what the heck is really going on?

Now, in hindsight, the expunction should not have taken place. The statute of limitations on the no-billed conduct had not expired. Still, saw just how unfair expunction can be when it comes to bringing out the accurate criminal history of a defendant, particularly a sex offender.

End of story: extraneous victims testified and defendant was sentenced to 40 years in prison. (Judge stacked two 20-year sentences.)

You're absolutely right, John, and that's one of the main problems of the expunction statute as it stands. Any agency that is subject to an expunction order should be able to keep an index of expunged files, purely for internal verification purposes. There's no way right now of telling after that one-year period when even the district clerk's records are destroyed that a case even has been expunged. If we later turn up some kind of information that was initially missed, we wouldn't have any idea that the case was expunged. (This can be a problem particularly with office turnover, if the problem doesn't come up until years later, but in any moderately sized office, even the person who handles the expunctions won't be able to remember who was who after a while.)

[This message was edited by AndreaW on 03-07-07 at .]