Delaware Law Office
of Larry D. Sullivan, Esquire


Criminal Law

As a former Judge of Newark's Alderman Court, Mr. Sullivan still takes criminal defense cases in that court.  The law office is just around the corner from the courthouse, and a short walk from many of the college dormitories.

Most people's understanding of criminal law comes from what they've seen portrayed on television or the movie theatre. But that knowledge is often colored by dramatic flourishes that ratings might require.

The reality of criminal law is often less dramatic, and also much more interesting.

A televised depiction of a criminal law legal practice often focuses upon the representation of people in trials, and other court hearings, brought against them by the govenment. But criminal law is much broader than that.

Criminal laws are rules that our elected representatives publish to protect other people or society as a whole. The passage of these laws doesn't happen in a vacuum, but rather in the framework of other laws, including the Constitution of the United States, and the Constitution of Delaware.

There can be many goals behind a legislator writing a law, and presenting it for vote by other lawmakers. These include preventing peoplefrom harming other people or the property of other people, and discouraging certain types of behavior.

Regardless of the goals, the effect is thatwhen one of our representatives makes a law, they are telling us what we should do, or can't do.

Under our federal and state constitutions, we are protectedfrom certain actions by our government. These protections include:

  • the right to have legal counsel during important stages in a criminal proceeding,
  • the right to confront witnesses against you,
  • and the right to be heard (or to decide when you might not want to be heard).

The practice of criminal law by a defense attorney is to work to see that people's rights are respected and upheld.

Criminal law deals with persons charged with a crime. Crimes are acts (or failures to act) for which the law sets forth a punishment. The government often classifies those acts or omissions as felonies, misdemeanors, or violations. A felony, and a misdemeanor, are often further defined as being a certain "class" of offense.

Often, a punishment depends upon the type of offense involved, and the class. Prior offenses, and some other factors defined by the law, can also influence the punishment decided upon by a court in a criminal case. That punishment can be either:

  • fines
  • probation
  • actual incarceration, or
  • death

In all criminal cases in Delaware, the government is the "plaintiff" in the case, representing the "people" of the city, county, state, or federal government.

So, you will often see a caption like the following in a criminal case:

  • The State of Delaware v. [Defendant], or
  • The City of Newark v. [Defendant].

It is important to understand that the criminal case is not a case as between the Defendant and the Victim.

The victim of a crime may be a witness, but the prosecuting party is the government (on behalf of the 'people' they represent).

Only the police and prosecutors have the authority to decide whether to prosecute such cases, or when not to prosecute them. If a victim decides to drop charges, it is still the State who makes the decision as to whether they will proceed forward.

There may or may not be a separate civil lawsuit which arises from the same set of circumstances as the criminal case.

A well known example of this would be the O.J. Simpson (criminal) murder trial and the subsequent (civil) wrongful death suit. The civil case was brought to the court by the family of the victim as the plaintiffs, and not by the government. That case also highlights for us that there are different standards applied to criminal cases as compared to civil cases.

Because there are different standards in criminal and civil cases, the results can be different, as we saw in the Simpson case.

We call these standards the "Burden of Proof." The burden of proof in a criminal case is "beyond a reasonable doubt." This is a much higher burden than the "preponderance" (more likely than not) burden in a civil case.

Also, it is important to distinguish juvenile delinquency cases (acts by children which would be criminal if they were adults) from criminal cases. Juvenile delinquency cases are civil cases, not criminal cases.

There are rare occasions when the courts determine that a child shall be tried as an adult. In those instances, the civil delinquency cases are, in effect, converted into criminal cases.

Expungement

Expungement is the sealing of a person's criminal record. The expungement process does not erase the criminal record, but simply seals the record from public view. All copies of the record are supposed to be destroyed and erased from databases except for a sealed copy kept at the office of the Supervisor of the State Bureau of Identification. 11 Del. C. �4373.

The sealed records can then only be viewed by a court or by "law-enforcement officers acting in the lawful performance of their duties...or for the purpose of an employment application as an employee of a law-enforcement agency." 11 Del. C. �4374.

Why is this important? Because a criminal record can hurt an innocent person's opportunities to gain employment, education, and credit. By expunging a criminal record, potential employers, schools and lenders aren't able to learn of an innocent person's past arrests.

Who is eligible for expungement? 11 Del. C. �4372 sets out three specific circumstances where expungement of a Delaware criminal record can be expunged.

  • The first is when a person is acquitted (found not guilty) of a crime.
  • The second is when a notice of nolle prosequi is entered (the state decides to drop the charges).
  • The third is a dismissal by the Court.

If any of these three circumstances occurs, the person charged is eligible to petition the Superior Court for an expungement. The petition and the proposed order ask the Court to expunge the record. It is up to the Superior Court to review the petition and decide if the expungement shall be granted or not.

If a person has an old conviction, can a new acquittal be expunged? No, if there are any convictions on a person's record, then the record cannot be expunged. A record is expunged so that an innocent person will not be hindered by an arrest record. If someone is found or pleads guilty, the damage is already done.

When should an expungement petition be filed? As soon as possible. A petition for expungement of criminal records should be filed right after the person becomes eligible either by acquittal, nolle prosequi, or dismissal. This way, the potential creditors or employers who would be able to see the record is kept to a minimum.

Even after an expungement is granted, it is still a good idea to have a criminal record search done a few months later to make sure the expungement process was completed. If the expungement has been successful, no record will be found.

Generally, while the drafting of a petition for expungement can be complicated, expungement is a relatively simple and inexpensive process. The problem is that many people and their lawyers are so happy to be done with a criminal case that they forget all about expunging the record.

A criminal record is something that most people don't think about until it comes back to haunt them. An expungement is a relatively easy way to alleviate those headaches down the line.

Larry D. Sullivan, Esq.