Bail Reform: Expunged Crimes

“In determining whether to overcome the presumption of issuing a complaint-summons pursuant to Section 4.3, a prosecutor or supervisory officer designated pursuant to subsection 3.3.2 may consider expunged records as part of the totality of relevant circumstances. SeeN.J.S.A.2C:52- 21 (“expunged records . . . of prior arrests or convictions shall be provided to any court, county prosecutor, the Probation Division of the Superior Court, the pretrial services agency, or the Attorney General when same are requested for use in conjunction with a bail hearing, [or] pretrial release determination pursuant to sections 1 through 11 of P.L. 2014, c. 31 [the Bail Reform Law]”).

In any case where application for a complaint-warrant is required pursuant to Rule 3:3-1(e), or any case where a determination has been made pursuant to this Directive to apply for a complaint­ warrant regardless of expunged arrests or convictions, the law enforcement agency and/or prosecutor shall not delay the charging process by waiting to obtain or access expunged records. If, however, expunged records might affect the determination whether to issue a complaint-summons or apply for a complaint-warrant, the assistant prosecutor or deputy attorney general consulted in accordance with Section 3.2,or designated supervisory officer designated pursuant to subsection 3.3.2, may delay the charging decision for a reasonable period while efforts are being undertaken to obtain or access · expunged records, considering the administrative burdens that would be placed on the police department by the delay, and further provided that the defendant can be presented to a judge or other judicial officer within 12 hours of arrest as required by Rule 3:4-1.”

The use of expunged records is unfair since only relatively minor crimes are eligible for expungement. Moreover, because expunged crimes are most often crimes that occurred more than ten years before the present arrest, their use is inconsistent with the rationales underlying our Evidence Rules, State v. Sands, and its progeny. That is to say, our courts recognize that convictions for crimes that occurred more than ten years ago are generally too remote to be material.