Prosecutor's Role in Expungements
 Just because you apply to the Court to have the record of your criminal conviction expunged, it does not mean that you will get it. The prosecutor has the right to argue against it. Ohio Revised Code Section 2953.32(B) states as follows:
"Upon the filing of an application under this section, the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing. The prosecutor shall specify in the objection the reasons he believes justify a denial of the application."
Some have argued, and Ohio's Fourth District Court of Appeals has held, that at a hearing on whether or not you can get your conviction expunged, the prosecutor cannot make arguments beyond what he has objected to in his written filings opposing your motion. The case on that is State v. Stiff, 1990 Ohio App. LEXIS 2540 (June 21, 1990) Scioto Co. App. No. 1804, unreported.
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| The Fourth District held that the State may decide not to file objections to the motion for expungement, but if it does object, then it must specify its objection and do so before the hearing date. The Fourth District reasoned that: "the reason for this mandatory requirement is just as obvious - to give the applicant an opportunity to refute or resolve the prosecution's objections." Stiff at 4-5. The Court went on to reason that since expungement can be a hotly contested issue, the legislature used the mandatory language "shall" to require that these due process procedures be followed, and that a trial court's failure to follow these statutory procedures is error. |
But the Ohio Supreme Court reversed this holding in the case of State v. Hamilton (1996), 75 Ohio St.3d 636, holding that a prosecutor's participation in a hearing on an application to seal the record of a conviction is not limited to issues specified by the prosecutor in a written objection filed pursuant to R.C. 2953.32(B).
The Ohio Supreme Court reasoned that R.C. 2953.32(B) does not contain language expressly forbidding participation by the prosecuting attorney at the expungement hearing in the absence of a filed written objection.
Further, the Ohio Supreme Court reasoned that the fact that the prosecution can file its objections at any time before the hearing, even the evening before, undercuts the rationale of the Fourth District Court of Appeals that the filing of such a written objection is intended to give the applicant notice of the state's basis for opposing the application and the opportunity to prepare a response thereto.
The Ohio Supreme Court further reasoned that Ohio citizens do not have a constitutional right to expungement either under the United States or Ohio Constitutions. Rather, expungement is an act of grace created by the state. Since the state of Ohio has a strong interest in ensuring that expungement is granted only to those who are eligible, it makes no sense to decide the matter on such procedureal grounds as whether or not the prosecutor filed his objections before the hearing.
Continue on to our complete guide to Ohio expungement law
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