Bail Reform: State’s Use of an Expunged Arrest/Conviction

“In the event that a juvenile is waived to adult court pursuant to N.J.S .A. 2A:4A-26 .l (involuntary waiver) or N.J.S.A. 2A:4A-27 (waiver at election of juvenile), and a complaint-warrant is issued pursuant to Section 4.8 so that the juvenile is an “eligible defendant” within the meaning of N.J.S.A. 2A:162- 15, in deciding whether to seek pretrial detention the prosecutor shall apply the relevant facts and circumstances of the offense and the defendant’s history of juvenile delinquency to the appropriate subsection(s) of this Section as if the person originally had been arrested and charged by complaint-warrant as an adult. See Section 4.8 and subsection 2.2. 1 (a juvenile waived to adult court shall be treated as an adult under this Directive). It is expected that the circumstances justifying an involuntary waiver (e.g., the nature and seriousness of the charges and/or the nature and extent of any prior history of delinquency) often will invoke a presumption under this Directive to seek pretrial detention.

A prosecutor, in determining whether to overcome the presumption against seeking pretrial detention pursuant to Section 7.2, may consider expunged records as part of the totality of relevant circumstances. See N.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]”).

A prosecutor may at any time reconsider the decision to seek pretrial detention based on information that would be relevant pursuant to this Directive and that was not known to the prosecutor at the time an initial decision was made not to seek pretrial detention. Furthermore, if the court denies a prosecutor’s motion for pretrial detention, the prosecutor may seek to re-open the hearing based on information not known at the time of the initial hearing that has a material bearing on the pretrial detention issue. See N.J.S.A. 2A:162-19(f).”

The natural response to the state’s use of an expunged arrest and/or conviction is that the charge(s) were unfounded or, in the case of a conviction, that a superior court of equal jurisdiction has ordered that the nature of the offense, along with the significant passage of time, make the conviction unworthy of consideration.