Locke Lord QuickStudy: SJC Adopts New Lower Standard for Motions to Seal Criminal Records

Locke Lord LLP
May 5, 2015
The Supreme Judicial Court (SJC) recently revisited a nearly 20 year old opinion that imposed an onerous burden of proof on former defendants trying to seal their criminal records in the Commonwealth.  Previously, Commonwealth v. Doe, 420 Mass. 142 (1995) predisposed judges to deny sealing requests.  Former defendants had to prove that the value of sealing their records clearly outweighed the constitutionally protected value of the record remaining publicly available, and that there was a compelling state interest in sealing the record as well as a risk of a specific harm to the former defendant from the availability of the record.  

In Commonwealth v. Pon, 469 Mass. 296 (2014), the SJC lowered the standard to seal a criminal record to “good cause.”  The Court noted that the 2010 reforms to the Criminal Offender Record Information (CORI) legislation were intended to protect former defendants seeking employment by limiting when employers could inquire about their criminal history.  The SJC noted that the state legislature intended to minimize discrimination in the hiring process, thus justifying the imposition of the lower good cause standard.  

The SJC in Commonwealth v. Pon held that judges must balance the interests between the common law presumption of access and the individual privacy interests at stake in assessing whether the defendant has established good cause for sealing his or her record.  After balancing those interests, if the judge determines that the defendant has shown good cause, the substantial justice standard will be met. 
The SJC has dramatically eased the burden of proof on defendants, as defendants no longer need to prove a risk of specific harm based on the availability of their records.  Former defendants can now demonstrate good cause by describing a present or foreseeable future disadvantage stemming from the availability of their record.  Moreover, the SJC also held that judges may take judicial notice that the existence of a criminal record can present barriers to employment opportunities.

The new “good cause” standard will enable a wider breadth of individuals to seal their records.  This will prove to be particularly helpful to those who are subject to routine CORI checks, looking to make a job change or reenter the workforce.  Once a motion to seal has been granted, employers who run a CORI report will not be able to see that a criminal record previously existed.  Massachusetts courts have begun granting petitions to seal under the new standard.  Individuals whose petitions to seal criminal records were denied in the past should consult with counsel and file another motion to seal.

For more information on the matters discussed in this Locke Lord QuickStudy, please contact the authors.