What is a “Criminal Record”?
Records of criminal cases are kept in a number of different places in Massachusetts: these include the police department involved in the case; the District Attorney’s Office or the Attorney General’s Office; the Court or Courts where the case was prosecuted; the Massachusetts Board of Probation; and the Massachusetts Criminal History Systems Board. With certain very limited exceptions criminal records in Massachusetts are never expunged or destroyed. So, if you have been to court and your case was dismissed or you have been found not guilty the records of the case are not expunged or destroyed. The records of the case remain and they remain forever unless they are ordered sealed.
(1) The records of a criminal case kept by a police department – and these would include such things as the police investigative reports, police reports of witness statements and interviews, arrest reports, booking reports, etc. – are kept by the police departments for as long as the police department wishes to keep them. These records are unaffected by what goes on in Court. These records are also unaffected by any court order that the “court” record be sealed. Generally speaking, the public does not have access to most of these police records.
(2) Likewise the records of criminal cases prosecuted by the District Attorney’s Office or the Attorney General’s Office are kept for as long as the the respective office wishes to keep such records. Normally such records are maintained for decades and decades and are kept in State Archives. These records are unaffected by what goes on in Court. These records are unaffected by any court order that the “court” record be sealed.
(3) Records of Criminal Cases kept in the Clerk-Magistrate’s Office of the Court: Every criminal case in every court in Massachusetts is given a case folder and a number. The case folder contains all the papers that are filed with the Court and all written orders, findings, and decisions that are generated by the Court. These case folders are called “Dockets” and they are maintained by the Clerk-Magistrate of the Court and they are kept in the Office of the Criminal Clerk-Magistrate of the particular Court. These are public records. In the Clerk’s Office of the Court there is typically a card file cabinet (open to the public) where one can look up a person’s name and find the Docket Number of all criminal cases in that Court under that person’s name. Any member of the public can then request to see the Court Docket (folder) for that particular case and can purchase copies of all the papers in the Court folder. When a criminal record is ordered sealed, the court folder for that case is literally papered over so that it is no longer visible. (The folder is not destroyed, but it is taped closed and papered over.) The card in the card file for that case is also papered over.
(4) Massachusetts Board of Probation: The Massachusetts Board of Probation has a central office in Boston which services the entire state. Every Criminal Court in Massachusetts has a probation department that reports to the Board of Probation. The Board of Probation in Boston maintains the records of all criminal court activity for all persons who are charged in any criminal court in Massachusetts. Every person who has ever had a criminal case in any Massachusetts Criminal Court has a PCF Number. PCF stands for Probation Central File and a PCF is created upon arraignment. When a police department or a District Attorney’s Office want to see if someone has a prior criminal record, an inquiry is made of the Board of Probation and the Board generates a copy of the PCF (Probation Central File) Record. This is a chronological listing of every criminal case in the PCF for the particular person. The listing shows for every criminal case the arraignment date, the court, the charge(s), and the disposition of the case. The PCF also includes a person’s juvenile record and a person’s record of civil abuse prevention orders. Many states do not have a centralized record keeping office for the whole state. Massachusetts does. The probation central file is generally available to courts and law enforcement agencies only. The probation central file is not available to the general public.
(5) Massachusetts Criminal History Systems Board: The Criminal History Systems Board (CHSB) is the state agency charged with making available criminal records to interested persons. Criminal Records are called CORI and CARI .(CORI = criminal offender record information) (CARI = Court Activity Record Information). The CHSB gets its information from the Massachusetts Board of Probation. Generally speaking the CHSB cannot give out criminal record information. There are exceptions: the Federal Government, Local, State, and Federal Law enforcement agencies have access to CARI and CORI. If an individual signs a release (for example to a prospective employer or to a college admissions department) then that prospective employer or college can request a copy of the person’s CORI from the CHSB. When we talk about sealing records, this is the record (CORI and CARI) that we seek to make not available. Massachusetts has statutes that govern the sealing of records. Generally speaking the record of a conviction for a felony can be sealed after 15 years and the record of a conviction for a misdemeanor can be sealed after 10 years. There are certain drug crimes that allow for the sealing of the record immediately upon the completion of probation. The statutes provide that if a case is dismissed or a person is found not guilty, then the judge “may” order the record sealed. The case law in this area, however, has placed severe limitations on the power of a judge to order records sealed even when people are found not guilty or the case is dismissed. Generally speaking a judge is only supposed to order a record sealed if there is some “compelling governmental interest”. The fact that the accused was innocent and was found to be not guilty and has no other criminal record is not enough for many judges. In 2009 we at Lewin & Lewin were successful in sealing the record of a woman charged with forcible rape of her adult boyfriend after the District Attorney dismissed the charges. In 2009 we were also successful in sealing the record of a woman who was charged with assault and battery on her husband in 2009 (that charge was dismissed) as well as another case the woman had dating back to 1999 (for assault and battery by dangerous weapon that was dismissed).
Sealing of criminal records involves either petitioning the Court where the case was prosecuted or petitioning directly to the Massachusetts Board of Probation.