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by Joe Hoover
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, for property rental, or as a personal
or business associate/partner. 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.
The following are examples of imperative reasons why a
criminal records check is of paramount value:
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
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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:
1. 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,” 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.
2. 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 it is
important that one’s search be thorough so as to not overlook any
possible information of value.
3. 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 35 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 records, 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 Record” – 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.
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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
records 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.
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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.
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:
1. 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.
2. 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.
3. 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.
4. 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.
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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.
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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