Senate Judiciary reviews S.12 changes on sealed criminal records, debate centers on "access" versus "use" and judicial review

The Senate Judiciary Committee discussed S.12, a bill that would require parties to notify the court and seek a judicial determination before using sealed criminal-history records in public court proceedings, committee members said. Tom Zoney, Chief Superior Judge, explained the process courts would follow and how bench conferences and sealing could be used to limit disclosure.

The issue matters because the bill changes when and how sealed records that may affect trials are disclosed and used, affecting criminal-justice agencies, defense counsel, judges and officer safety. Committee members and testifiers focused on whether the statute should distinguish ‘‘access’’ (reviewing a sealed file) from ‘‘use’’ (introducing or relying on information publicly), and on court capacity to handle pretrial filings under the proposal.

Tom Zoney, Chief Superior Judge, outlined how he expects the amended statute to work: "The statute as amended provides that prior to the use in the court proceeding, the party wishing to use it has to, has to provide, notice it, before they can do it in open court." He said courts would then determine admissibility and whether the probative value is outweighed by unfair prejudice, invoking the familiar Rule 403 balancing test: "The court also under the rules of evidence has the ability to determine whether the probative value of the information is substantially outweighed by the danger of unfair prejudice and other rules." Zoney said parties could still raise such matters at trial if new information emerges, and that bench conferences about admissibility could be sealed when they touch confidential material.

Karen Dolan of Health Judiciary called attention to capacity concerns: "1 of the pieces that came up for us in testimony was around capacity, shifts in judiciary of having, requests for access also come to the court in addition to use." Dolan and others asked whether creating a statutory filing process would require more judicial resources or separate hearings for ‘‘access’’ and ‘‘use.’’

Defense counsel speakers warned the changes could affect plea practices and deferred sentences. One defense speaker said, "From our perspective, it would really damage the use of deferred sentences," arguing that making access or use more procedurally difficult could push more cases into contested proceedings.

Law enforcement voices on the committee emphasized officer safety. A law enforcement representative said, "Officer safety, in my mind, is first and foremost because of that officer safety. You don't have public safety," and argued that timely access to relevant records can be important for officers responding to certain calls. Committee members discussed the bill's "exigent-circumstances" exceptions that would allow immediate access in some responses.

Committee members compared the Senate and House versions. The House draft was described as more prescriptive on timing and pretrial filing procedures and explicitly uses the word "use" in some subsections to clarify that criminal-justice agencies and defendants may not just access but also use sealed criminal-history material under the House language. Committee members said the House language may be implemented by local court rule but that placing the process in statute would make it uniform across jurisdictions.

No formal committee vote on S.12 was recorded in this segment. Members agreed to continue discussion and revisit testimony and draft language, including the differences between ‘‘access’’ and ‘‘use,’’ the treatment of deferred sentences and capacity implications for courts.

Ending: The committee adjourned the S.12 discussion for further review. Members asked staff to compile additional materials and draft options addressing capacity and a clear statutory definition of "access" versus "use," and to return the bill to committee later for further consideration.