Are courts in Utah required to hold a hearing on an expungement petition? Utah law provides both a clear “yes” and a clear “no” answer to this question.
Unopposed Expungement Petitions
Under the Utah Expungement Act, Utah Code section 77-40-107, a court can grant a petition to expunge criminal records without holding a hearing on the petition if no objection is filed and received by the court within 60 days of the date the original petition is filed. The court may also grant a petition to expunge without a hearing if the prosecutor has agreed, stipulated, or otherwise affirmatively waived the right to object to the expungement.
Objections to the Petition
Before any expungement can be granted, the Utah Expungement Act requires that the prosecution and any victim be given an opportunity to respond to the petition. Even if a prosecutor does not oppose the expungement, a victim can file an independent objection. In some cases, the Department of Corrections Division of Adult Probation and Parole may also provide input to the court.
Subsection (6)(a) of Utah Code 77-40-107 states that if the court receives an objection to the petition “from any party, the court shall set a date for a hearing and notify the petitioner….”
The word “shall” is generally interpreted by courts as creating a mandatory obligation. Therefore, if an objection is filed, the court is required to set a hearing on the expungement petition.
Following the hearing, the court will make a formal decision either granting or denying the petition. But when a petition to expunge is contested, the court cannot deny the petition without first giving the petitioner the right to be heard in court on the matter.
When an expungement petition is filed with the court, there is no guarantee that the court will grant the petition. Utah law establishes a relatively high burden proof for the petitioner, requiring clear and convincing evidence that the requested expungement is not contrary to the public interest.
Although the ultimate result carries no guarantee, Constitutional principles of due process guarantee the individual right to notice and an opportunity to be heard. The hearing requirement established under Utah Code 77-40-107 is consistent with these constitutional protections.
Under ideal circumstances, a prosecutor may read the initial expungement petition and immediately agree that the petitioner’s criminal record should be expunged. When circumstances are less than ideal, a prosecutor may object to the expungement petition even when basic statutory eligibility requirements are met.
A well-crafted petition can play a critical role in the expungement process. In addition to basic eligibility requirements, the Utah Expungement Act requires a petitioner to demonstrate by clear and convincing evidence that the requested expungement is not contrary to the public interest. If the written petition is sufficiently persuasive, a prosecutor may stipulate to the expungement without ever requiring that a hearing be held.