When is an Expunged Criminal Case Not Expunged and Discoverable in Civil Litigation?

Should an ESI Protocol Be Incorporated Into a Court Order?
March 13, 2023

In an unreported decision, In re Francis A., 2023 WL 5948060, at *1 (Apls. Ct. Md. Sept. 13, 2023), Maryland’s intermediate appellate court addressed an issue of first impression, holding that good cause had been shown to discover expunged records in a civil lawsuit:

The narrow issue before us in this expedited appeal is whether the circuit court erred and/or abused its discretion when determining that good cause existed to open, review, and disclose information contained in appellant Francis A.’s expunged criminal records pursuant to Md. Code (2001, 2018 Repl. Vol.), § 10-108(b) of the Criminal Procedure Article (“CP”). For the reasons explained herein, we shall affirm.

Francis A had been charged criminally.  Some charges were nolle prossed. Others resulted in a not guilty determination. Francis A’s requests to expunge both cases were granted.

The alleged facts are awful.  Sairee  had been “romantically involved” with Francis A.  She confronted him with information that he had sexually assaulted her younger sister, Haydee. The Court wrote: “During the evening of August 10, 2018, when Sairee and Appellant were otherwise alone, Sairee sustained multiple skull fractures; she fell into a coma, required years of recuperation and rehabilitation, and now has no memory of what happened to her that night.”  Id. at *1.

THE PETITION TO UNSEAL

Sairee and Haydee filed a civil tort suit in the United States District Court for the District of Maryland, alleging sexual and violent assaults.

On February 1, 2023, they [also] filed a Petition to Allow Inspection of Expunged Records (the “Petition”) with the Circuit Court for Baltimore County in connection with the captioned state court criminal matters, which concerned the same conduct. Appellant opposed the petition. The Circuit Court heard argument on April 5, 2023 and granted Appellees’ requested relief.… At issue here is whether Appellees showed “good cause” for opening the expunged records.

The Court explained what Sairee and Haydee were looking for: “Appellees sought access to the arrest and incident reports, search warrants, affidavits, forensic reports, witness statements, and other materials contained in police, State’s Attorney, and court records in connection with Nos. 3916 and 4794.”

GOOD CAUSE WAS SHOWN

Much of the appellate analysis turns on the definition of “good cause.”  The Appellate Court affirmed the finding of good cause:

The Appellees explained that they sought access to the expunged records because the facts and issues in Mr. A.’s criminal case overlap with those at issue in the Appellees’ federal civil case. Furthermore, any information obtained from Mr. A.’s expunged records would be subject to a confidentiality agreement negotiated between the parties, and Mr. A.’s records would remain hidden from the general public. Mr. A. asserts that the Appellees have not exhausted other forms of discovery in the civil case, but the Appellees aptly observe that Sairee, who has no independent memory of her attack, would be unable to intuit the names of witnesses or direct federal subpoenas to persons or agencies who conceivably might have relevant knowledge. Sairee’s lack of memory of her assault is not disputed by Mr. A., nor does Mr. A. dispute that he and Sairee were otherwise alone at the time Sairee’s injuries occurred. Notably, in the Agreed Statement of the Case submitted by the parties, both parties agreed that “[d]uring the evening of August 10, 2018, when Sairee and Appellant were otherwise alone, Sairee sustained multiple skull fractures; she fell into a coma, required years of recuperation and rehabilitation, and now has no memory of what happened to her that night.”

On the unique facts presented, good cause was shown. It should be re-emphasized that Francis A was not convicted and this blog describes allegations in a civil lawsuit.

MARYLAND’S EXPUNGEMENT STATUTE

The expungement statute, Md. Code Ann., Crim. Proced. §10-108, provides:

Sec. 10-108. Opening, review, or disclosure of expunged records

Court order required for person to open, review, or disclose expunged record

(a) A person may not open or review an expunged record or disclose to another person any information from that record without a court order from:

(1) the court that ordered the record expunged; or

(2) the District Court that has venue in the case of a police record expunged under § 10-103 of this subtitle.

Notice, hearing, and show of good cause for court order

(b) A court may order the opening or review of an expunged record or the disclosure of information from that record:

(1) after notice to the person whom the record concerns, a hearing, and the showing of good cause; or

(2) on an ex parte order, as provided in subsection (c) of this section.

Ex parte orders allowing access to expunged records

(c)(1) The court may pass an ex parte order allowing access to an expunged record, without notice to the person who is the subject of that record, on a verified petition filed by a State’s Attorney alleging that:

(i) the expunged record is needed by a law enforcement unit for a pending criminal investigation; and

(ii) the investigation will be jeopardized or life or property will be endangered without immediate access to the expunged record.

(2) In an ex parte order, the court may not allow a copy of the expunged record to be made.

Fines and penalties for violations

(d)(1) A person who violates this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 1 year or both.

(2) In addition to the penalties provided in paragraph (1) of this subsection, an official or employee of the State or a political subdivision of the State who is convicted under this section may be removed or dismissed from public service.

Anyone addressing a Maryland expungement should be aware of CP §10-102:

Sec. 10-102. Documents subject to expungement

Police and court records

(a) A police record or a court record is subject to expungement under this subtitle.

Police and court records in existence before July 1, 1975

(b)…

Documents or records outside scope of section

(c) This subtitle does not apply to:

(1) a record about a minor traffic violation;

(2) the published opinion of a court;

(3) a cash receipt or disbursement record that is necessary for audit purposes;

(4) a transcript of court proceedings made by a court reporter in a multiple defendant case;

(5) an investigatory file; or

(6) a record of the work product of a law enforcement unit that is used solely for police investigation.

FRANCIS A IS UNREPORTED

Although it addressed an issue of first impression, Francis A is unreported.  It is not unusual for the Court to decide such issues in unreported decisions. Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones (Mar. 24, 2022).  Maryland has gone a long way toward eliminating Judicial Disappearing Ink.

Citation is still limited.  See Md. Rule 1-104.  An unreported opinion is not precedent under Rule 1-104(a).  However, under Subsection (a)(2)(B): “[A]n unreported opinion issued on or after July 1, 2023 may be cited for its persuasive value only if no reported authority adequately addresses an issue before the court.”

Given that the Francis A opinion states that it is an issue of first impression, it appears that it may be cited under Rule 1-104(a)(2)(B) as persuasive; however, its factual predicate was described as unique.

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