Ohio Prosecutor Participation Limitations Regarding Record Sealing


State v. Hamilton
Supreme Court of Ohio
June 26, 1996

Holding: A prosecutor’s participation in a hearing on an application to seal the record of a conviction is not limited to issues specified by the prosecutor in a written objection filed pursuant to R.C. § 2953.32(B).

Why This Case is Important: R.C. § 2953.32 establishes the procedures for expunging/sealing a criminal record in Ohio. The primary issue in this case arises from section 2953.32(B). Pursuant to Ohio’s sealing statute, a prosecutor may contest a petitioner’s application for expungement. Section 2953.32(B) states “prosecutors may object to the granting of the application by filing an objection with the court prior to the date set for hearing […] [and] shall specify in the objection the reasons for believing a denial of the application is justified.” Accordingly, prosecutors may present evidence against expungement, and the statute requires courts to consider the reasons set forth by the prosecution when determining whether expungement should be granted.

The crux of this case falls on whether a prosecutor’s objections must come before the hearing. In the quoted statutory language above, a prosecutor has the authority to object to an application of expungement prior to the date of the hearing. Although the statute requires the prosecutor to file an objection before the hearing, the Supreme Court of Ohio has interpreted this provision as an alternative to presenting evidence during a hearing. In other words, it is proper for a prosecutor to participate in an expungement hearing and present evidence as to why the petitioner’s records should not be expunged during the expungement hearing, even if the prosecutor never filed a written objection before the expungement hearing.

The Supreme Court of Ohio affirmed its position on the grounds that expungement hearings are not like criminal trials. Because they are dissimilar, a petitioner is not entitled to the same notice requirements as a defendant on trial, and therefore petitioner does not need notice of a prosecutor’s objections.

As such, evidence against expunging a petitioner’s records can be set forth during the expungement hearing or by written objection before the hearing. This interpretation is necessary so that courts may not be limited in an expungement hearing from considering relevant information. If a prosecutor is precluded from participating at an expungement hearing solely because he did not file a written objection, courts will not be able to adequately assess whether expungement should be granted.

Facts of This Case: In 1990, the petitioner in this case was convicted of theft. The petitioner successfully completed probation and applied for expungement as soon as he was eligible. Without filing an objection before the hearing, a prosecuting attorney appeared during the expungement hearing and urged the court to deny the petitioner’s application. The court denied the application based on the prosecutor’s reasons, and the Supreme Court of Ohio affirmed the denial.

The petitioner in this case argued that Section 2953.32(B) required the prosecutor to file a written objection before showing up at the expungement hearing. The petitioner argued that the prosecuting attorney had no right to show up without filing and giving notice of objection.

The Supreme Court of Ohio stated that R.C. 2953.32(B) does not require the filing of a written objection as a prerequisite for prosecutors to participate in the expungement hearing. The Court held that section 2953.32(B) was an alternative to appearing at the expungement hearing, and that it only authorized a prosecutor to contest an expungement by written objection. The Court determined that there was no limiting language in section 2953.32 that specifically required notice to be filed before a prosecutor could participate in an expungement hearing.

The Court stated that courts must have all relevant information during an expungement hearing. The Court determined that the purpose of R.C. 2953.32(B) was to provide relevant evidence to justify denial and not to limit the introduction of relevant evidence. The Supreme Court of Ohio thereby affirmed the order denying the petitioner’s expungement request, which was based on the prosecutor’s evidence during the hearing.

Key Language: : Under R.C. 2953.32(B), the prosecutor is permitted to file an objection to the application with the court. If an objection is filed, and specifies reasons allegedly justifying denial of the application, the court is required to consider the prosecutor’s objections regardless of whether the prosecutor appears at the hearing. The purpose of requiring specificity in the written objection filed pursuant to R.C. 2953.32(B), therefore, is to provide the court with the state’s rationale for opposing the application not to limit the introduction of relevant information, which the prosecutor possesses or may come to possess, that is not contained in a written objection.

Expert Advice: “Courts must consider all relevant information in order to determine whether expungement must be granted. It is necessary to consider all relevant information in order to establish that a petitioner is eligible. This is why the Supreme Court of Ohio held that a prosecutor does not need to file a written objection prior to participating in an expungement hearing. If the Court instead held the opposite, that prosecutors were required to file written objections, courts would run the risk of not being able to adequately assess whether expungement relief should be granted.” -Attorney Mathew Higbee.

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