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  1. #1
    Join Date
    Aug 2014
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    Default Do You Have to Disclose a Criminal Charge Resolved by a Finding of Innocence

    My question involves criminal records for the state of: CA

    I was wrongfully arrested under a very strange set of circumstances last year. The case was promptly dismissed at the preliminary hearing. The court then took the extremely rare step, based on a motion from my attorney, of issuing a Declaration of Innocence, pursuant to California Penal Code 851.8.

    This order, much stronger than a typical sealing and/or expungement, signifies the defendant is factually innocent and thus orders all agencies involves (court, DOJ, LAPD, etc) to seal and destroy all records related to the arrest and prosecution. Further the statute states that upon entry of this order, the arrest is "deemed never to have occurred" and that those granted this relief "may answer accordingly to any question related to its occurrence." Unlike expungements or other "sealing" statutes within California, there are no caveats to this and it is unqualified. The arrest simply ceases to exist. The objective is to "wipe the slate clean" from somebody who is truly innocent and it is generally saved for cases of mistaken identity, etc.

    At this point, the LAPD has deleted its record, along with the CA DOJ and the FBI. Fingerprint scans on both the federal and state levels verify this. Further, the court has deleted their record in totality.

    Now that this is all behind me, I'm considering applying for law school and eventually the bar. My question is does this have to be disclosed on applications that ask about sealed arrests? On one hand, honesty is your friend. On the other hand, the strange set of facts surrounding the arrest might sully an otherwise stellar application. Not to mention that the entire point of this relief is to "wipe the slate clean" and give someone truly innocent a restoration to their pre-arrest status.

    Any help would be amazing.

  2. #2
    Join Date
    Jul 2007
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    Florida
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    2,344

    Default Re: Law School/Factual Innocence

    Ask yourself this: is the board of bar examiners likely to look less favorably on you disclosing this episode in detail, or discovering that you did not disclose it but rather lied and said you had never been arrested? You may be factually innocent, which is great. However, you were factually arrested and if you answer the question "have you ever been arrested" by saying "no" then you would be what is commonly referred to as a liar. Boards of bar examiners don't much like liars - in fact they like them far less than people who were arrested but completely exonerated. See, you might as well get accustomed to being truthful now. That is expected of attorneys, believe it or not. The truth works very well.

  3. #3
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    Aug 2014
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    2

    Default Re: Law School/Factual Innocence

    While I certainly don't disagree with that, the Penal Code mentioned specifically states that the arrest is deemed "never to have occurred," so technically I wasn't arrested in a legal sense. These motions are rarely granted and the entire point is to basically give you a clean slate. Further all records have since been sealed and will be physically destroyed on the three year date of the arrest.

    Anybody in California have thoughts on this?

  4. #4
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    Jul 2007
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    Florida
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    Default Re: Law School/Factual Innocence

    Well, let me put it bluntly. If the board of bar examiners somehow does find out you were arrested (and they have some serious and impressive investigatory methods at their disposal) and you have told them you have never been arrested you will have difficulty in being cleared by them. You will have to apply in your first year of law school. I would think it better to take the low risk path on this thing. But you play it how ever you like. You seem to have a desire to play by what you think you can get away with as opposed to being truthful. That's not a good start to a career in law. Sealed or destroyed records do not change reality, and the truth is that you were arrested. And keep in mind, what you will be completing is a "Moral Character Determination Application." Think about that just for a second... Being arrested and exonerated does not reflect poor moral character. Stating something as true that is known to be a lie does reflect poor moral character.

  5. #5
    Join Date
    Oct 2006
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    16,474

    Default Re: Law School/Factual Innocence

    Quote Quoting USCTrojan84
    View Post
    While I certainly don't disagree with that, the Penal Code mentioned specifically states that the arrest is deemed "never to have occurred," so technically I wasn't arrested in a legal sense. These motions are rarely granted and the entire point is to basically give you a clean slate. Further all records have since been sealed and will be physically destroyed on the three year date of the arrest.

    Anybody in California have thoughts on this?
    I would ask your attorney. However, I do agree with Bubba that answering the question as "Yes, but a Declaration of Innocence was issued" should cover you both ways.

  6. #6
    Join Date
    Jul 2007
    Location
    Florida
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    Default Re: Law School/Factual Innocence

    I believe the OP will find that there is plenty of room on his application to explain in excruciating detail the circumstances associated with anything he perceives to be negative on his bar application. I also believe that everyone at his law school will advise him that it is vastly better to err on the side of brutal candor rather than trying to be creative in dancing around truth. That is something they are looking to scrutinize with a fine-tooth comb in reviewing his application.

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