In our regular legal system, an expunging proceeding is a form of litigation in which a second time criminal defendant of a previously established conviction tries to have the original record of the trial sealed, allowing the evidence against him or her to no longer be available through the government or the courts. An expunging procedure can be initiated by the prosecutor, defense attorney, or even the judge on his own. A judge may decide to conduct the procedure himself, and in some cases he may want to do so on his own. If the judge decides to initiate the procedure, he will not need the recommendation of a prosecutor or a defense attorney.
When conducting this kind of case, the defendant may be trying to clear his name for any one of many reasons. Maybe there are witnesses who are lying or who can no longer be trusted. Maybe the evidence against him or her is tainted. Perhaps the case was improperly tried or not taken seriously by the prosecutor at all. Or perhaps the case involved the wrongful conduct of the judge in the initial proceedings.
The procedure requires that the judge be completely convinced of the defendant’s innocence and that there is no possibility that the entire criminal case will ever be retried. A judge will likely need to consider the seriousness of the offense, the defendant’s history, the gravity of the charge, the actual outcome of the case, and his or her own personal convictions about the fairness and reliability of the judicial system in order to determine whether or not to expunge the case.
If a judge decides not to expunge a case, he or she will issue an order stating the grounds behind the decision. After the court issues an order, any party may file an appeal with the Court of Appeals of Illinois. If the Court of Appeals upholds the original ruling, the case will be considered “open,” and the plaintiff or defendant may once again pursue the case in an effort to have his or her conviction expunged.
In many cases, the first party to file an appeal is the prosecuting attorney. This appeals board hears the case and it is usually up to the judges on the appeals panel to decide whether the original case should be vacated. or if a new trial is necessary. The judge in the original trial will be required to make his or her final decision as to whether or not to vacate the conviction; however, the presiding judge may make a final ruling regarding the appeal prior to the appeals board hearing.
Although expungement procedures are similar to other types of retrials, they are not the same. Although the process can result in the same results, it is important to consult a professional expungement lawyer when considering expunging your case. If you decide to hire an attorney, make sure that they are experienced with these cases in order to ensure that their opinions and advice are based on solid information and not speculation. They will know which appeals are most appropriate for your particular situation.