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If you have filed a petition for expungement in Virginia, you will likely need to attend a hearing before a judge. Many people feel anxious about this step because they do not know what to expect. This guide walks you through the entire hearing process so you can go in prepared and confident.
Overview of the Expungement Hearing
An expungement hearing in Virginia is a court proceeding where a circuit court judge reviews your petition and decides whether to grant or deny your request to seal your criminal record. The hearing is governed by Virginia Code § 19.2-392.2.
Hearings are typically scheduled 30 to 90 days after you file your petition, though the exact timing depends on the court’s docket. The hearing itself is usually relatively brief — often lasting between 15 and 30 minutes — but preparation is key to a successful outcome.
Note: Not all expungement cases require a contested hearing. In some cases, if the Commonwealth’s Attorney does not object and the facts clearly support expungement, the judge may grant the petition without a lengthy proceeding. However, you should always be prepared for questions from the judge.
What to Do Before Your Hearing
Preparation is the most important factor in a successful expungement hearing. Before your hearing date, make sure you have completed the following:
- Review your petition: Re-read your expungement petition and supporting documents to make sure everything is accurate and complete
- Bring copies of all filed documents: Have extra copies of your petition, criminal history record, and any supporting affidavits
- Prepare your statement: Be ready to explain in your own words why expungement is important to you and how the record has affected your life
- Gather supporting evidence: Bring any documents that demonstrate the impact of the record, such as rejection letters from employers, evidence of rehabilitation, or letters of recommendation
- Dress appropriately: Treat this like a job interview — business casual or professional attire is recommended
- Arrive early: Plan to arrive at the circuit court at least 30 minutes before your scheduled hearing time
Who Attends the Hearing
A typical expungement hearing involves the following parties:
- The Judge: A circuit court judge who will hear your case and make the final decision
- You (the Petitioner): You are required to attend. If you have an attorney, they will appear with you
- The Commonwealth’s Attorney: A prosecutor from the jurisdiction where the case was heard. They may support, oppose, or take no position on your petition
- Court Clerk and Reporter: Court staff who manage the proceedings and create the official record
Expungement hearings are typically open to the public, but they rarely draw spectators. You are welcome to bring a support person, though they will sit in the gallery and not participate in the proceedings.
What Happens During the Hearing
Here is what a typical expungement hearing looks like, step by step:
- Your case is called: The judge or clerk will call your case by name and case number. Step forward to the petitioner’s table or podium
- Introduction: The judge will confirm your identity and verify that you are the person who filed the petition
- Presentation of your case: You (or your attorney) will present the petition to the judge, explaining what charge you are seeking to expunge and why. This is your opportunity to explain the manifest injustice caused by the continued existence of the record
- Commonwealth’s Attorney response: The prosecutor will state their position — they may agree with your petition, oppose it, or take no position
- Questions from the judge: The judge may ask you questions about the circumstances of the case, your current situation, and why expungement is warranted
- Judge’s decision: In many cases, the judge will make a ruling from the bench (immediately). In some cases, the judge may take the matter under advisement and issue a written decision later
Tip: Speak clearly, be honest, and be respectful to the judge and all court staff. Address the judge as “Your Honor.” If you do not understand a question, it is perfectly acceptable to ask for clarification.
Questions the Judge May Ask
Being prepared for the judge’s questions can make the difference between a granted and denied petition. Common questions include:
- “Can you explain the circumstances of the original charge?” — Give a brief, factual account. Do not embellish or cast blame
- “How has this record affected your life?” — This is where you discuss difficulties with employment, housing, education, or other areas. Be specific with examples
- “What have you been doing since the charge?” — Highlight positive developments: employment, education, community involvement, family responsibilities
- “Have you had any other criminal charges since this one?” — Be honest. If you have, explain the circumstances. If not, emphasize your clean record
- “Why should this record be expunged?” — Tie everything together. Explain how the continued existence of the record causes manifest injustice given that the charge was dismissed or you were acquitted
Important: Never lie to the judge. If you are caught being dishonest, it will almost certainly result in your petition being denied. Judges appreciate candor, even about difficult topics. If there are unfavorable facts in your history, it is better to address them honestly than to have them raised by the prosecutor.
The Commonwealth Attorney’s Role
The Commonwealth’s Attorney (prosecutor) plays an important role in your hearing. When you file your petition, a copy is served on the prosecutor’s office, giving them the opportunity to review your case before the hearing.
The prosecutor can take one of three positions:
- No objection: This is the best scenario. If the prosecutor does not object, the judge will often grant the petition with minimal questioning
- Objection: The prosecutor may argue that expungement is not warranted. Common objections include concerns about the nature of the charge, your criminal history, or public safety. You will have the opportunity to respond to any objections
- No position: Sometimes the prosecutor neither supports nor opposes the petition, leaving the decision entirely to the judge
If the case involved a dismissal or nolle prosequi, prosecutors are less likely to object since there was no conviction.
Possible Outcomes
After hearing your case, the judge will issue one of the following rulings:
Petition Granted: The judge signs the expungement order directing the Virginia State Police and other agencies to seal your record. This is the outcome you are hoping for. The actual sealing of records takes additional time after the order is signed — typically several weeks to a few months.
Petition Denied: The judge determines that expungement is not warranted. If this happens, you may be able to refile in the future, but you should understand the specific reasons for the denial first. Consider consulting with an attorney through the Virginia State Bar or Virginia Legal Aid.
Taken Under Advisement: The judge may want more time to consider the case and will issue a written ruling at a later date, usually within 30 days.
What Happens After the Hearing
If your petition is granted:
- The judge signs the expungement order
- The court sends copies of the order to the Virginia State Police and other relevant agencies
- The VSP processes the order and removes the record from their database
- Court records related to the charge are sealed
- You can legally state that you were not arrested or charged for that offense in most circumstances
The entire process after the hearing typically takes 6 to 12 weeks, though it can sometimes take longer. Learn more about how expungement affects background checks.
Prepare for Success with SealMyRecordVirginia.com
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