Judiciary Committee reviews S.12 changes on sealed criminal records and court filings

The Judiciary Committee on May 9 reviewed draft 2.2 of a committee "strike‑all" amendment to S.12 that would change how sealed and expunged criminal records are handled, including a requirement that petitioners list Vermont state entities to receive sealing orders, a mandate that state entities advising about criminal-history checks inform applicants of their right not to disclose sealed or expunged records, and new rules for filing documents under seal when a filing contains or references a sealed record.

The proposal matters because it affects how courts, prosecutors, defense attorneys and state agencies handle sealed records and how individuals with sealed or expunged records are informed about disclosure rights. Committee members and invited witnesses discussed how the changes would work in court, how defense counsel and prosecutors can access sealed records for representation or discovery, and how the administrative and judicial branches would notify staff and update forms.

Michelle, Legislative Counsel, opened the committee review and summarized the draft: "We're looking at draft 2.2 of committee strike‑all amendment to S.12. So I'm just gonna take you through the highlighted portion," she said, and then walked through specific page changes in the draft.

Key provisions discussed

- Notice recipients: The draft adds language clarifying that when a petitioner files to seal a record, the petitioner should list Vermont state entities that should receive notice of the sealing order (pages cited during the hearing included pages 15 and 24). That change is presented as a clarification rather than a new substantive requirement.

- State‑entity advisories: The amendment inserts language requiring that a Vermont state entity that requests a person's criminal history advise the person of the right not to disclose sealed or expunged records. Committee members said the measure is intended to make sure individuals are informed when state agencies ask about criminal history (discussion referenced page 22 and similar language on page 24).

- Filing under seal and court use: The draft includes an instruction that if a party submits a filing that contains a sealed record or a reference to a sealed record, that filing must be submitted under seal and remain under seal unless the court permits use of the sealed record. The committee discussed whether a "reference" should be treated the same as a "use," and several participants said explicitly including reference would reduce the risk that someone inadvertently reveals a sealed record in open court (subsection C, pages 25 and the handout circulated to members).

- Exceptions and access in criminal cases: The amendment retains broad access for criminal justice agencies to use sealed criminal-history records for criminal-justice purposes and adds explicit provision that a defense attorney may use a sealed criminal-history record in representing a defendant. Committee members and witnesses discussed how discovery obligations and defense representation interact with the sealing exceptions (discussion referenced page 26).

- Discovery and practical use: Prosecutors and defense counsel explained that defense counsel normally receive criminal-history materials during discovery and that existing discovery obligations would require sharing exculpatory or inculpatory material. Kim McManus, Department of State's Attorneys and Sheriffs, told the committee, "We appreciate the work, and we think we can work with this," while describing the drafting changes as clarifying how prosecutors would signal intended uses of sealed records.

- Court practice and bench conferences: Judge Zoney (referred to in the hearing transcript as "Judge Zonay/Zone a") addressed how courts would handle requests to use sealed records, explaining that judges already have procedural tools under public-access rules and the rules of evidence to hold bench conferences and, if appropriate, to seal portions of hearings. "It would make little sense to say that we've just by you seeking to get something in and the court saying no, that suddenly what you wanted to get in is out in the public domain," Judge Zoney said, describing how courts can determine admissibility, relevance and potential unfair prejudice on a case-by-case basis.

- Deferred sentences and retroactivity: The draft clarifies that records relating to deferred sentences will be sealed prospectively under the new language rather than expunged retroactively, so persons who already entered into deferred‑sentence agreements expecting expungement would not have those earlier records altered retrospectively (discussion referenced page 38).

Administrative steps and implementation

The draft also directs administrative and judicial-branch staff to notify personnel and to update application forms so that, when state entities ask applicants about criminal history, the forms can state that sealed or expunged records need not be disclosed (discussion referenced a new section on page 34). Legislative counsel and staff told the committee that if the bill is enacted, petition forms would be updated to conform to statute.

Where the bill stands

Committee members did not take a final vote during the session. Members discussed the possibility of voting on the amendment later the same day and noted S.12 may proceed to a committee of conference with Senate Judiciary. The committee asked staff to circulate the latest draft; sponsors said there will be additional opportunities for comment before a final committee vote.