San Diego Law Review

Sealing and Destruction of Criminal Records for the Factually Innocent: A "Second Chance" for California Penal Code Section 851.8


Irina Fox


Faculty editor: Lawrence A. Alexander


Publication Law Review
Volume 53
Issue 2
Start Page 369
Year 2016
Type Article
Subject Area


   This Article provides a comprehensive review of section 851.8 and proposes amendments to fairly balance the societal interests in preserving criminal records with the interests of factually innocent individuals in clearing their names. Part I reviews California law governing criminal record retention and dissemination and outlines the contemporary society’s main policy considerations for preserving arrest records and for their expungement. Part II scrutinizes Penal Code section 851.8, offers a synopsis of the most significant California case law interpreting the statute, and outlines the procedure for filing a petition under the statute—including a discussion of the statutory standards for establishing factual innocence and the statutory burden shifting approach. Part II also examines the specifics of the hearing, including a review of the admissible evidence. Finally, Part III proposes amendments to the statute that would more successfully balance the interests of society and law enforcement and the affected individuals. Part IV concludes, highlighting that the current flaws of the statute can be remedied through allowing factual innocence petitioners rights to some discovery, permitting anonymous filings for those arrested but never charged, and correcting the timing restriction inconsistency.


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