Contributor: Adam Justinger

Introduction

Innocent until proven guilty. A constitutional guarantee that stems from the Fifth Amendment of the United States Constitution. The phrase is commonly used, but is it truly given the meaning it deserves? How can a phrase be so simple, yet so complex? All too often in our society it seems that a defendant is guilty until proven innocent. Although there is a lot to be discussed with this topic, this blog will focus on one specific area of concern: a person’s criminal record.

Charging

Law enforcement investigates crimes. Prosecutors review the evidence and make a determination on whether an individual should be charged. Once the prosecutor decides to charge an individual, the case is filed with the court. When a person is charged with a crime in North Dakota, the general public has the ability to access the court record/docket while the case is pending. It is far more difficult to do this in Minnesota. Although an individual is innocent until proven guilty, oftentimes the mere filing of a case can have an adverse impact on an individual. However, with open record laws in place, this is likely unavoidable. So, what happens after the case is filed?

The Case

After the case is filed, the parties begin litigation. In some cases, the prosecution may reevaluate the evidence and decide to dismiss the case. In other cases the defendant may bring a motion that results in the case being dismissed. Yet in other cases, a trial may be held. The Sixth Amendment of the United States Constitution guarantees the accused a speedy and public trial by an impartial jury. While jury trials are more common, in some criminal cases a defendant may wish to have a bench trial, which is a trial before a judge. After the presentation of evidence, if a defendant is found not guilty, the case will be dismissed.

But even if your case is dismissed or you are acquitted, the court record still exists. Not only does it exist, but it is a public record that anyone can access at any given time. Although the record will reflect that the case was dismissed or that an individual was acquitted, the record itself still carries a negative connotation. For example, when an employer runs a background check, they will see the charge. Will this affect their decision to hire someone? What happens if a landlord checks the public record and sees you were charged with a felony? Will that prevent him from renting to you? Unfortunately in North Dakota, at this time there is not an automatic fix (more on this below). However, an individual can take action to try and restrict this record from the public.

Restricting Access

Under North Dakota Supreme Court Administrative Rule 41, an individual can ask the court to restrict access to their record if the case has been dismissed or the defendant has been acquitted. However, that is not the only requirement. An individual must prove there is an overriding interest in restricting access to the record compared to the presumption of openness of the record. This is no small feat. The court generally will look at the risk of injury to the individual, individual privacy rights and interest, proprietary business information, and public safety; when making this determination. Further, the court cannot restrict access more than necessary. The court has to look at reasonable alternatives, such as redacting or making partial restrictions before they completely restrict access to the case file.

Based on the rule, there are a lot of hurdles an individual has to jump through who is supposed to be “innocent until proven guilty.” Even if an individual is successful in restricting access to the record, the record will exist to some extent. While it does not show the charge, the judge, the docket, or most other information, a case number still exists which still indicates a person was charged with some sort of crime.

The Future

Here at SW&L Attorneys we realize this is a problem. Our team is working with legislators, organizations, and other individuals to try and fix this process. As the law is currently written, it is better to plead guilty and get a deferred imposition of sentence or plead guilty and seal your record than getting the case dismissed or acquitted. This should not be the case. Instead, if your case is dismissed, you are acquitted, or you have been pardoned, the record should be automatically sealed. An individual should not be plagued by a court record if there is not a conviction. This legislative session, we are hopeful that the law will change. If you feel the same, you can contact your legislator in support of this position.

In Conclusion

Criminal records can significantly impact an individual’s rights. It is important you contact an experienced attorney who can help you seal your record, obtain a pardon, or restrict access to court records. If you need assistance with these types of matters in North Dakota please contact SW&L Attorneys at 701-297-2890. For future articles, check out our blog. This article is for informational purposes only and is subject to our disclaimer.

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