Sykesville, MD asked in Criminal Law, Child Custody and Civil Litigation for Maryland

Q: If I had a criminal charge expunged, can the police report

from the incident that led to my arrest be used as evidence in a civil hearing?

1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Criminal Law Lawyer
  • Rockville, MD
  • Licensed in Maryland

A: No. First of all, the contents of a police report is hearsay, so unless the report has some non-hearsay evidentiary purpose, it will not be allowed over your objection even were the case not expunged. The police officer who wrote the report can be called to testify as to matters over which they have personal knowledge by hearing or witnessing particular events (again, subject to hearsay objections if all they are doing is repeating what others told them, unless there is a hearay exception that applies). But, if your case was expunged, then the police would have been required to destroy all records of the report. Therefore, under the evidentiary rules, someone holding a copy would be unable to authenticate the report even if it were admissible for some non-hearsay purpose. In order to authenticate a document as a genuine copy of a real document of the police department, the proponent of it would have to call either the police officer who wrte it or the records custodian of the police department to testify that it is an accurate copy of an official document prepared in the ordinary course of conduct of the police department and maintained as a record. They would be unable to do so if all those records were expunged. They would have no way to compare the copy to what is on file, since there would be no such official document on file. These evidentiary objections must be raised as soon as the report is offered into evidence.

As for the expungement statute itself, you may argue that a copy of an otherwise expunged record in a case may not be disclosed in a cvil proceeding, citing MD Code, Criminal Procedure, § 10-108, which addresses opening, review, or disclosure of expunged records:

(a) A person may not open or review an expunged record or disclose to another person any information from that record without a court order from:

(1) the court that ordered the record expunged; or

(2) the District Court that has venue in the case of a police record expunged under § 10-103 of this subtitle.

(b) A court may order the opening or review of an expunged record or the disclosure of information from that record:

(1) after notice to the person whom the record concerns, a hearing, and the showing of good cause.

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