TITLE FIVE — EXPUNGEMENT PROCEEDINGS
Rule 37. Expungement Hearing
Hearing Required. An expungement proceeding consists of a hearing where the petitioner and the State may present their positions, with the petitioner being allowed to rebut the argument of the State, as 6 R. Stat. § 131.601 requires. A hearing shall be held upon every petition, of every class. The court shall not rule upon a petition without holding a hearing.
Time. The hearing shall be held within seven (7) days of the filing of the petition, as Rule 36(5) provides. The court may continue the hearing for cause stated upon the record, and shall set a new date at the time of the continuance.
Where Conducted. The hearing is conducted in open court or in the proceeding communications of the expungement matter, and is maintained upon the record. The record of the hearing is public, as Rule 36(4) provides.
Notice. The court shall cause notice of the date and time of the hearing to be given to the petitioner and to the attorney for the government, and shall cause the setting to be entered upon the docket.
Order of Proceeding. The hearing proceeds in the following order:
The petitioner presents the petitioner’s position, and may present evidence and argument;
The attorney for the government presents the State’s position, and may present evidence, argument, and a recommendation; and
The petitioner rebuts the argument of the State.
No surrebuttal shall be made by the State except by leave of the court.
What the Petitioner Must Show. The court shall hear the petitioner’s arguments upon the changes effectuated by the petitioner which would display to the court that the petitioner is worthy of the sealing of records. The petitioner bears the burden of establishing, by a preponderance of the evidence:
The number of arrest-based criminal records and conviction-based criminal records the petitioner possesses, and therefore the class of the petition;
That the petitioner is in good standing with the community;
That the petitioner is capable of engaging within the community lawfully;
That the petitioner has not committed, been arrested for, or been charged with any crime within the period the petitioner’s class requires, and, upon a petition for infraction expungement, that the petitioner has received no additional civil infraction within the last seven (7) days; and
Upon a petition to expunge a conviction, that the expungement period defined in statute or provided at sentencing has been met.
Evidence. The court may receive evidence upon any issue of fact necessary to rule upon the petition. The attorney for the government may provide the court with evidence upon any such issue. The Ridgeway Rules of Evidence apply as the court directs, and the court may relax them upon a finding stated upon the record, the proceeding being ex parte and non-adversary.
Absence of the Petitioner. Where the petitioner fails to appear at the hearing, the court may deny the petition without prejudice or may continue the hearing once upon a showing of good cause.
Absence of the State. Where the attorney for the government fails to appear, the hearing shall proceed. The failure of the State to appear is neither a concession nor a ground for granting the petition, and the petitioner’s burden is unaffected.
Time Limits Upon Argument. The court may fix reasonable limits upon the time allowed to each side and shall state those limits at the outset of the hearing. No hearing shall be unreasonably prolonged.
Inquiry as to Community Service. Upon a petition of Class II or Class III, the court shall inquire whether a conditional expungement upon the completion of an assigned community service program is appropriate, as 6 R. Stat. § 131.602 permits, and shall hear the petitioner and the State upon that question. The court shall not assign a community service program to exceed a period of thirty (30) days.