|By: Joe Hoover, Anni Adkins and Dr. Lew Deitch
May 15, 2007
Why conduct a criminal records check? This is a question that many
prospective employers, landlords or business people ask when first considering
an individual for employment, property rental or as a business associate. People
often put too much faith in a resume, a simple background check or contacting
referees. In today's society, it is necessary to follow through with a criminal
records check to be absolutely certain that the person under consideration is as
trustworthy as they may appear to be from an initial interview or check of their
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The following are examples of imperative reasons why a
criminal records check is of paramount value:
Acts of violence against a co-worker or a member of the public can be
devastating. Even the simple threat of violence can cause panic or havoc.
Workplace or residential safety is a major concern to employers, landlords and
those who work or reside on the premises. A background check may often reveal a
record of past violence, which could be a deciding factor in deciding upon a
person's character, as often there is a propensity to re-offend in the future.
Prevention of workplace or neighborhood violence means thoroughly pre-screening
all new applicants.
Employers have been the subject of large jury verdicts for negligent hiring
in cases where they hire a person with a criminal record who later harms others.
An employer who hires someone who is dangerous or unfit for a job, or who hires
a person with a criminal record, can be found liable for negligent hiring.
Employers Legal Duty
To insure a safe workplace, employers should exercise due diligence in the
hiring process by making reasonable inquiries about who they hire. As well as
being an important preventative measure, checking criminal records demonstrates
due diligence. The same need for due diligence can be applied to landlords if
they rent to a tenant who later is proven to have been responsible for property
loss, damage or violence against other.
Childcare Institutions, Nursing Homes, and Hospitals
Ã¢â‚¬Å“Caregiver institutions should exercise extra caution when recruiting
personnel. Does the prospect have a record of child molestation or a history of
violent behavior or drug abuse? Once again, these institutions can be held
liable for any harm brought to their clients or patients by an employee who was
not properly screened. And jury awards in such cases can be devastating to the
Industries that execute government contracts will not hire employees with an
anti-establishment disposition or with a felony record or a terrorist
connection. Such contractors should conduct criminal background checks for both
national security and to guard against loss of their contracts.
Community watch groups or homeowner's associations should conduct criminal
record checks to assure that individuals planning to move in do not have a
criminal background or a history of complaints to local law enforcement
authorities. Such checks help to insure the continuation of a peaceful and safe
The biggest dangers one confronts online are frauds and sex crimes.
Face-to-face meetings set up after online acquaintances develop can end up as an
unpleasant or dangerous experience for one party. A criminal background check
helps one to avoid such a scenario.
A criminal records check provides the following basic
Subject's gender and race
Date of Birth
Offenses and dates
Dispositions or convictions and dates
Criminal records information is obtained from sources that include county and
state criminal court records, federal fugitive files, state Department of
Corrections (DOC) files, prison parole records and sex offender databases. Each
level of search provides important information, as detailed below:
County Criminal Searches
The county criminal records search offers the most current detailed
information, as it is being retrieved from the source. Note: If a crime was
committed in county "a" search of the records in countyÃ‚Â "b" will not reveal
the crime committed in county "a".Ã‚Â Search the records in each county
where the applicant is known to have lived or worked.
County Criminal Databases
Not all counties maintain their criminal records on a database. Arcane and
fragmented record keeping systems still exist in many jurisdictions. Databases
may not be current or accurate. If a name match is made, the actual records must
still be retrieved for review from the county courthouse. In many jurisdictions,
older records have been placed in storage. Therefore one's search must be
thorough so as to not overlook any information of value.
Felonies & Misdemeanors
Most counties maintain separate records for felonies and misdemeanors. In
some counties felony and misdemeanor records are maintained in a combined index.
Felonies are the more serious crimes that carry a greater potential punishment,
but misdemeanor convictions can include assaults, threats, weapons charges, and
drug or alcohol related crimes. Check both categories and not assume that
misdemeanors are simply related to traffic laws or noise ordinances.
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CONDUCTING THE RECORDS SEARCH
If one is conducting a search, the task can seem daunting. Keep in mind that
there are public record researchers at every courthouse in the United States. It
is their job to provide assistance for those not familiar with utilizing court
records. The minimum information one must have to initiate a search is the
subject's full name, possible aliases and date of birth.
The United States Department of Justice reminds those conducting criminal
records searches that crimes are usually committed near the perpetrator's home.
Forty-three percent of inmates spend time in prison for crimes committed in
their own neighborhoods.
Criminal records are indexed by defendant's name and date of birth. Therefore,
having the CORRECT SPELLING of the FULL NAME and being POSITIVE that the date of
birth is correct are critical to obtaining accurate results. If the person has
used other names, those names should be checked. Be sure to run a database name
search and address history BEFORE attempting criminal history records searches.
In 1998, Congress amended the Fair Credit Reporting Act to eliminate the
seven-year limitation on criminal records reporting, but left intact the portion
of the law that said if states had more restricted rules in their statutes, the
more restricted rule would apply. Since many states, such as California, passed
laws that copied the provisions of the Fair Credit Reporting Act, including the
seven-year limitation in certain instances, there is currently no workable
national rule. These limitations are not meant to restrict the searches
conducted by prospective employers, landlords or any concerned parties
conducting criminal records checks.
Statewide Criminal Checks. Statewide criminal court records are available from
29 states. State criminal indexes receive their data from the counties. If a
county fails to report criminal data to the state, the statewide index may not
be up to date. It is necessary to cross check data from statewide criminal court
records with the county of concern, or at least contact that county's courts to
ascertain if they have updated the state files.
Some commercial public records providers, who claim to provide statewide
criminal ', actually provide statewide inmate searches, and call them criminal
searches. If the subject has been placed on probation, released from prison, or
is sentenced to the county jail rather than state prison, the search will likely
yield a "no record."Ã‚Â Ask: "Which jurisdictions are included within the
state I am searching?"
"No RecordsÃ¢â‚¬Å“ Some states have procedures to judicially "erase" a criminal
offense. In California, for example, if the matter was a misdemeanor and a
person received a certificate of rehabilitation under Penal Code 1203.4 from the
court, then that old conviction is not reportable.
Criminal Docket Index
The court may provide access to its criminal docket index, which is often in
a book or on microfiche. The index usually contains dates, case numbers and
names of defendants. If the subject has a common name, many ' will be found for
that name. Penal code violations may or may not be listed. Case disposition is
rarely included. Some of these databases include felony convictions only. Find
out what's included. Statewide searches are excellent for due diligence
research, but are not a substitute for county level searches.
Databases - Computerized Records
Most jurisdictions have computerized their criminal records, but the majority
do not allow off-site access. One can search the public access terminals in the
courthouse or state records depositories. Many county courts do not offer public
access terminals, as they have not developed systems that separate public
records data from nonpublic records. In these jurisdictions, it may be necessary
to submit a request to the clerk and return in a day or two for the results.
Free Records Search
A few courts will perform a free check by phone. The clerk may or may not
provide correct or complete information. Most courts will respond to written
requests, but may take weeks or even months to get the results to the requestor.
Criminal Records Accuracy
Not all statewide records depositories are accurate. Some statewide systems
are only clearing houses for those counties that choose to deposit records.
There are no guarantees that all counties are up to date or are even
participating. Once again, cross check with the concerned county.
Department of Motor Vehicle driver history records (driving records) are
available if requestor has a permissible purpose for requesting the records.
These records are very important if the prospective employee will be driving as
part of their job performance, especially if using a company owned vehicle.
Department of Corrections (DOC)
The DOC search yields information about current and past incarceration. This
is an instant database search of 47 states' DOC, which are tied to the National
Department of Corrections database.
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IMPORTANT RECORDS TERMINOLOGY
In reviewing criminal records, the following terminology should be understood
because it may have important implications regarding the charges listed on the
From Latin term "Nolle Prosqui" meaning "We shall no longer prosecute." It is
an admission by the prosecution that there is a lack of evidence to pursue the
case. It is also used in plea bargains. It is different than a "dismissal"
because it is the prosecution that drops the charge, not the judge.
This is an agreement between the defendant and the courts to clear the charge
from the docket. For this to occur, the defendant has agreed to complete some
sort of arrangement, such as a fine, community service, etc. If the defendant
fails to hold up his or her end of the agreement, then he or she will be
convicted of the charge and sentenced accordingly.
The final settlement of a matter. This represents a judge's ruling,
regardless of the level of resolution. In a criminal procedure, disposition is
the final settlement of a criminal case.
The punishment for the crime, a judgment formally pronounced by the court or
judge upon the defendant after his/her conviction in a criminal court, which
dictates the punishment to be assigned. It can vary from a fine to incarceration
or probation. The term "sentence" is only used in criminal proceedings. In civil
cases, the terms "judgment", "decision", "award", "finding", etc., apply.
United States District Courts
The federal court system is entirely separate from the state court systems.
Federal crime can be offenses such as large-scale drug cases, bank and financial
fraud, or other violations of federal laws. Depending upon what county and state
records searches uncover, it may be important to check into federal records to
gain a full and accurate picture of a subject's criminal activity.
Thousands of criminal indexes are maintained at county/parish, township/city
levels throughout the United States. As noted, above 29 states offer statewide
criminal records files, but they vary as to their degree of accuracy. Numerous
investigative firms advertise "Comprehensive Nationwide Criminal Records." This
can be highly misleading since such a search would require checking with every
state in the union.
National Crime Information Center (NCIC)
Contrary to popular belief, there is no national database of criminal records
available to private citizens or employers, therefore, there is no such thing as
a national criminal records check. There is one "nationwide" criminal database,
the FBI's National Crime Information Center (NCIC). This is not a public records
database. It cannot be legally accessed by anyone other than criminal justice
agencies. The FBI and state law enforcement have access to it, but it is illegal
for a private company or individual to obtain criminal information from this
Black Market for Data
There is an enormous black market for the information found in the NCIC
database, information often obtained by individuals who were formerly in law
enforcement and who have an "old boy" network of associates with access to NCIC.
There are strict penalties for unauthorized access to this data, and penalties
for buying information illegally obtained.
National Wants and Warrants
The Nationwide Active Warrants search is conducted through the FBI's NCIC
database. One may search for individuals who have outstanding and extraditable
Federal and State warrants in the United States, which are usually issued for
more serious felony offenses such as bank robbery, violent crimes, sex offenses,
military desertions, and terrorist activities.
If one is planning to use the services of an information provider, it is best
to sign up with a good public records research company that has direct
connections to multiple proprietary databases and a nationwide network of
skilled on-site court researchers. Engage an established, credentialed
information provider with extensive experience in conducting in-depth criminal
background checks. Information Providers conduct criminal background checks for
people in the United States, Canada, and the United Kingdom.
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DENIAL OF EMPLOYMENT
The simple fact of a prospective employee's name showing up in a criminal
records database does not necessarily mean that this person should not be hired,
especially if he or she is qualified in every other manner. An employer should
not automatically deny employment based upon discovery of a criminal conviction,
but should consider the nature of the offense, whether it is job related, when
it occurred and what the person has done since. To automatically bar employment
to a person solely because of a criminal record can be a form of discrimination.
Most employment applications contain language that the conviction for a crime
will not automatically result in a denial of employment. Automatic
disqualification could be a violation of state and federal discrimination laws.
An employer may deny employment if it can be justified as a business-related
reason or if there has been a lack of honesty during the application process.
Denial based upon a history of violence, sexual offenses or other serious
criminal acts may be justifiable depending upon the nature of the business and
the prospective applicant's duties if hired.
Often, it is not the criminal record itself that disqualifies the applicant, but
rather the lack of honesty regarding the completion of their application.
The following are valid questions that an employer may ask on the application
1. Have you ever been convicted for a crime?
Yes ___ No ___ If yes, please briefly describe the nature of the crime(s), the
date and place of conviction and the legal disposition of the case.
2. Are you currently out on bail, the subject of warrant for arrest, or released
on your own recognizance pending trial?
Yes ___ No ___
A person with a criminal record faces greater challenges in seeking employment.
The employment application will ask if a person has a criminal record. If the
person lies, they risk being terminated if a criminal record is later
discovered. If the person admits the past misconduct, there is a risk of not
being hired. The applicant is under no obligation to report arrests not
resulting in a conviction or that are not currently pending
The best indicator of future job performance is past job performance. An
ex-offender is anxious to get back into the workforce to start making a living.
Past job performance evaluations from former employers should also be taken into
consideration along with the criminal records information garnered.
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Article provided by: Investigative Professionals LLC, Ã‚Â©2012 Information