As the Ninth Circuit Solicitor Scarlett Wilson states on her website: “expungement” is the destruction or obliteration of criminal records relating to an arrest or a conviction.”  Ms Wilson also lists the “limited circumstances”  under which expungement is available in South Carolina. 

But if a criminal conviction is expunged, did it ever exist? This intriguing question is exactly what the New Jersey Supreme Court is being asked to decide in G.D. v. Hudson County Democratic Organization, A-85-09, and its answer will determine whether one who publicizes a conviction after expungement is committing defamation.

A quick note on the law of defamation: the truth of the allegedly defamatory statement is ordinarily considered an absolute defense available to the person who “published” it (either orally or in some of form of media).

In the New Jersey case, the defendants claimed that the Hudson County Democratic Organization was thus within its First Amendment rights when it circulated the flyers during an election campaign, stating that a former aide to a candidate it opposed had once been convicted of a drug charge, the appeals court said.  The aide had been convicted in 1993 and the conviction was expunged in 2006.  The aide had no law enforcement contact since the conviction.

 Attorneys for the aide argued to New Jersey’s Appellate Division that the expungement created the “legal fiction” that the crime was never committed.  If the defendants knew of the expungement (a matter still in contention), then accusing the plaintiff of former criminal activity amounted to actionable libe.

 New Jersey’s Appellate Court agreed: “In our judgment, plaintiff’s successful expungement of his record does not make defendants’ statements about that record ‘false,'” wrote Judge Dorothea Wefing.

The plaintiff appealed to New Jersey’s Supreme Court, where his case has survived a motion for summary judgment.  It will be interesting to see what the Supreme Court of New Jersey does with this novel argument.

At Mikell Law Firm, we have significant experience in helping clients get their criminal convictions expunged.  Under the law, certain offenses are eligible to be expunged which means that they are removed from a client’s record.  When you are arrested, a record of your case is maintained with SLED, the prosecutor, the Court, police department, etc.  If your charge qualifies, an Order of Expungement along with the disposition of your case must be forwarded to the Solicitor for approval and/or a representative of pre-trial intervention.  Upon approval and filing with the Court, the Expungement Order will then be sent out to any and all agencies associated with the charge.