Committee hears concerns that draft sealing bill leaves defense access and dissemination undefined

Members of the Judiciary Committee heard extended testimony raising legal and practical questions about draft legislation that would replace expungement with sealing and expand who can access sealed criminal-history records.

Marshall Paul, testifying to the committee, said the bill’s provision on page 26 "allows for access to sealed records by a defense attorney who may use sealed criminal history records in representing a defendant" but left too many questions unanswered about what "use" means. "This idea of use, which this allows, is just so undefined that it doesn't tell us what we can and can't do," Paul said.

Paul told the committee the uncertainty has consequences: "If you do something that a judge finds falls outside of the word use, then you're subject to a thousand dollar bond." He said that threat would deter attorneys from testing unclear points in court, such as whether a defense attorney may share a sealed record with an expert or a lay witness.

Paul also raised a constitutional concern for pro se litigants: because the draft limits access to "defense attorneys," it may deny tools and procedures to people who represent themselves. "The way that this one's written, it would really only allow defense attorneys to access sealed records, not pro se litigants," he said, adding that although pro se litigants are a small portion of cases, they consume significant court resources and can raise procedural challenges.

Committee members and other participants discussed whether the bill had unintentionally borrowed a broad "criminal-justice purposes" definition from another part of the code (Title 20), and Paul urged drafting a single, clear definition tailored to sealing rather than lifting language written for a different section.

Paul also highlighted practical problems with moving from deletion to sealing in an electronic records environment: "It's about choosing what information you keep in the first place because this stuff is all vulnerable. No matter what you do to protect your information, until you actually delete it or destroy it, it is vulnerable." He noted that long-standing rules about confidential materials, such as Criminal Rule 32’s treatment of pre-sentence investigations, were written for paper records and do not map neatly to email attachments and electronic case files.

Committee members pressed on how to prevent broad dissemination if sealed records may be shared with witnesses. One member proposed adding language making the attorney responsible if a person to whom the attorney disclosed a sealed record later disseminates it; others questioned whether that would be realistic for hostile witnesses and pointed out existing protections used in juvenile cases under Title 33, Section 51-17. Paul suggested the committee could look to juvenile confidentiality procedures for models of nondisclosure instructions and sanctions.

The committee did not take formal action on the bill at the session. Members discussed possible drafting fixes, including language limiting dissemination to uses "in representing or defending the defendant" or otherwise specifying permissible recipients and confidentiality obligations. The committee scheduled additional time to continue the discussion at a later hearing and asked staff and interested parties to propose drafting options.

The hearing also referenced prior legislation (H 762 from last year) as a point of comparison: Paul said that prior bill would have expanded the scope of records eligible for sealing far more than the current draft, while the present draft makes a large procedural change with only modest changes in scope.