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Expunging records, at times, is just

Imagine that you are the victim of identity theft. Your wallet, credit cards, and IDs have been stolen. Then the thief who stole your identity commits another crime, a felony. He’s arrested, and uses your identification information. He says he’s you.

You receive a criminal summons in the mail – because he gave the police your address. Now you have criminal charges pending against you, for a crime you didn’t commit. You explain all of this to the DA. You prove that you didn’t commit any crime, and that your identity was stolen by the person who did. The case against you is dismissed and you’re cleared of any wrongdoing.

But your name is still listed on court records as the defendant in a criminal case. Although you weren’t convicted, and you’re not a felon, this damaging information is publicly available, raising doubts as to what kind of person you are.

Anyone with an internet connection can quickly and easily pull up this prejudicial information. If you’re applying for a job, this information could prevent you from getting an interview. And it will be on your record forever, through no fault of your own.

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Your good name has been tarnished, even though you didn’t do anything wrong. In fact, you were the victim of a crime, not the perpetrator. Yet the public record shows that you were criminally charged with a felony.

This scenario may sound far-fetched. But it’s not. It has happened here in Albuquerque. The twin horror of identity theft and then being wrongfully accused of a crime you did not commit happened to a former client of mine. Luckily, the judge saw the wisdom of expunging the record, and we succeeded in getting these unwarranted charges expunged.

The common-sense outcome that was available to my client would be barred by the approach recently proposed by an editorial published by the Albuquerque Journal (Oct. 19). The Journal’s editorial overemphasizes the public good of access to court and arrest records, while ignoring the legitimate interest of individuals in clearing their name and protecting their privacy.

The Journal refers to these as “criminal records” as if being accused of crime makes you a criminal. But if you’re wrongfully or erroneously accused, you are not a criminal.

The Journal’s approach erodes a fundamental tenet of the American judicial system: that you are innocent until proven guilty. Rather, the Journal laments the possibility that the public might not know if someone who applies for a public position or runs for office “had arrests for various crimes that didn’t result in convictions.”

A “crime” that does not result in a conviction is not a crime. That’s what the presumption of innocence means.

Today, anyone with an internet connection can easily access records in a few seconds. Erroneous and wrongful allegations can be found quickly, raising new questions about the balance between the public’s right to know and an individual’s right to privacy – questions that a previous generation did not confront.

In recent years, New Mexico’s elected representatives and senators have repeatedly embraced common-sense reforms to protect one’s reputation and good name.

Many other states, including Texas, already have expungement laws that offer robust protection against harmful dissemination of inaccurate court and arrest records. Even in those states without expungement laws, many allow their judges to make a case-by-case determination if expungement is appropriate given the facts of each particular case.

New Mexico’s judges, who exercise judgment and discretion across a broad spectrum of circumstances – on a daily basis – should be empowered to do the right thing when the facts warrant it. The Journal’s one-size-fits-all approach, if adopted, would strip the courts of their power to decide cases on the facts and force many of us to live under the dark shadow cast by a wrongful arrest, even when there is no question that the police and prosecutor accused the wrong person.

Scott Davidson is a member of the New Mexico Criminal Defense Lawyers Association.

 


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