Q: Can an acquitted and expunged case be used against you in a new criminal trial on a different charge?
8 years ago, I was acquitted in a jury trial on a misdemeanor charge of making harmful material available to a minor. After the not guilty verdict, the judge ordered that the case be expunged.
I now face a new charge, a more serious charge, and the DA wants to bring in evidence from the expunged case.
Is that allowed? I thought all evidence from the expunged case was ordered destroyed. Of course, it was not and the new DA got hands on the old case and even presented it to the grand jury. I would like to know if that's allowed. I would think that presenting the expunged case to the grand jury would make the indictment flawed.
A: Sometimes instances of "prior bad acts" are allowed into evidence, even with no conviction. If the Judge allows the jury to hear such evidence, such conduct may well lead the judge's decision to be exposed to a reversal. Also if the judge allows the da to use previous "non-convicted" conduct against you, you are allowed to request a limiting instruction advising the jury not to consider such evidence to prove you acted in conformity with it to convict you of the current charges. (For what it is worth...)
A:
If the prosecutor knowingly used expunged records to get a Grand Jury indictment then she probably committed at least one crime.*
HOWEVER, this does not necessarily help your case. Even if the indictment is quashed and the current prosecutor is recused, the chances are high that a new prosecutor will get a new indictment from a new grand jury. The new prosecutor might even be worse than the old one. For example, the new prosecutor might be looking to avenge her coworker's honor... she might go digging in the statutes to find additional offenses to throw the book at you!
Going after the prosecutor with guns blazing might not be in your long term strategic best interest. Sometimes a little finesse goes a long way in pretrial negotiations. This is why it is smart to have a local attorney on your defense team. Someone who knows the reputations and personalities of the various prosecutors will have a better idea of how to use this situation to maximum effect with the least chance it will backfire.
* See Article 55.04 of the Texas Code of Criminal Procedure, Section 39.02 of the Texas Penal Code, and Rule 8.04 of the Texas Disciplinary Rules of Professional Conduct.
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