By: Joe Hoover, Anni Adkins and Dr. Lew Deitch
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
paperwork.
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The following are examples of imperative reasons why a
criminal records check is of paramount value: Workplace Violence
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.
Negligent Hiring
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 others.
Childcare Institutions, Nursing Homes, and Hospitals
“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
institution.
Government Contractors
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.
Neighborhood Communities
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 residential community.
The Internet
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.
CRIMINAL RECORDS
A criminal records check provides the following basic
information:
Subject's name
Aliases used
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 county¯ "b" will not reveal the crime committed in
county "a".¯ 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."¯ Ask: "Which jurisdictions are included
within the state I am searching?"
"No Records“ 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.
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.
Driving Records
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
person's record:
Nolle Prossed
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.
Adjudication
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.
Disposition
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.
Sentence
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.
NATIONAL DATABASES
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 database.
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.
INFORMATION PROVIDERS
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
for employment:
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, ©2012 Information
Providers
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