Sunday, September 19, 2010

If a criminal conviction is expunged, did it ever exist?

As you probably know, the first requirement for a defamation case is that the satement upon which the claim is based needs to be false. If it is true, there is no cause of action. That's an old question that has been answered a million times. Now here is a new question: suppose someone is convicted of a crime but the conviction is later expunged. Then someone publicizes the (true) fact that the person had been convicted in the past. Given that the conviction was expunged, can the statement give rise to a claim for defamation? This question is now pending before the New Jersey Supreme Court in a case called G.D. v. Hudson County Democratic Organization. Go to Law. com and the Wall Street Journal law blog for the full story. Not having read any of the details of the case, my gut feeling is that the answer should be NO. The statement is still true and the expungement does not all of a sudden mandate the rest of the world not to mention the conviction under penalty of (tort) law.

2 comments:

Stephen R. Diamond said...

No evidence proves defendant knew of the conviction's expungement. Slam dunk for defendant. The court probably won't reach whether it's defamatory when defendant knowingly disregards the expungement.

Cris said...

Well, expungement (supposedly) erases the entire arrest record along with the court records, conviction, and even the defendant's fingerprints. So...what arrest?