Understanding The U.S. Court System For Effective Criminal Background Checks

Robert Capwell

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Court HouseCriminal background checks have become a vital part of the screening process for employers striving to achieve due diligence for the purposes of increasing workplace safety and reducing the potential of negligent hiring litigation.  There are thousands of criminal courts across the United States, each with its own court structure.  For employers, it is critical to understand the availability and limitations of criminal history data and knowing where the data can be found, the difficulties in obtaining accurate information, and how to develop appropriate search strategies that are thorough and cost-effective.  This article provides an overview of various court structures and where to find different types of criminal information.

 

Municipal, Local And Community Courts
In many states, local courts serve the purpose of resolving local, village or city issues dealing with minor misdemeanors, ordinance violations and licensing infractions.  Often these types of courts do not offer a jury trial, just interpretation of local and state laws.  Most criminal or non-criminal convictions at this level will require restitution, a fine or probation, and typically don’t include incarceration.  Although some offenses can involve criminal activity, most can be resolved by a local Magistrate or law enforcement official that is an appointed or elected representative with specific training and legal or law enforcement experience.  If a decision cannot be rendered by this appointed judge or magistrate, the case would then be sent to a higher court for further action, or even a jury trial, if warranted.

Records within these courts must be searched at the local level and are typically not maintained by the county court.  Most employers don’t request a court search of this type due to time, expense and actionable information as it pertains to adjudication within screening policies.  This could be a reason that certain convictions disclosed by a candidate are not discovered through the typical scope of a criminal records search program.

County Courts
County courts are typically located at the county seat and provide the most accurate and current source of criminal record information, as an overwhelming majority of both misdemeanor and felony cases originate and are heard at this level.  Certain states breakdown county courts further into district courts (lower courts) and circuit/superior courts (upper courts). Misdemeanors and felony cases can be heard at either court level in many states; however, depending on the charge level (felony or misdemeanor), the case may be transferred to a higher court for trial or appeal.  Both lower and upper county courts should be searched to insure the delivery of comprehensive information.  It is always best practice to search where an applicant has lived and worked.

If the applicant is a new college graduate, you may want to also consider searching the county court where the university they attended is located.  Focusing efforts on where a candidate spends most of their time will yield the best results.

State Repository Information
Many states operate a central record repository that receives criminal information (including felonies and certain misdemeanors) contributed by law enforcement agencies, prosecutors, county courts and corrections agencies throughout the state.  These repositories compile the information into a state criminal history records database made available to criminal justice personnel and non-criminal justice agencies, like background screening firms, that are authorized by law to obtain the records for purposes such as employment screening and occupational licensing.

Although a few states maintain these repositories with complete and accurate information that is consistently updated in a timely manner, including all reporting county jurisdictions, most do not.  Many counties do not report to these state databases on a regular basis due to limited budgets and personnel, or they are not obligated to report information based on the absence of state law.  In many of these repositories, records lack critical case identifiers or subject identifiers such as complete name, date of birth or other identifier to identify the subject being searched.  Certain misdemeanor cases and final dispositions on arrest records may not be available as well.  In some cases, there is no way to know where the case was originated without going to the original court of jurisdiction.  It is best practice to insure that any record without a final disposition from a state repository is further verified to be sure you have the latest case information as there could be a significant lag in updating the state database.  It is always best practice to include both a county search and a statewide search on each candidate wherever possible.

Federal Criminal Courts
Understand that federal crimes will not appear in statewide or county court record searches.  It is often assumed that a federal criminal record search implies a search of the entire federal court system, or even implies a national criminal search - neither of these assumptions is correct.  Federal jurisdictions, or districts, are typically broken down into regions that coincide with county borders.  There are over three hundred federal districts across the United States and every state has at least one district, and up to four, depending on size of the state and overall population.

Federal records include criminal complaints brought by the U.S. government against defendants for violation of federal criminal law.  Crimes such as bank robbery, embezzlement, drug trafficking, crimes committed across state-lines, or even tax evasions are examples of offenses that would fall under federal jurisdiction.  Best practice would indicate that one should conduct a search of federal criminal records in all districts within the state where a subject has lived and worked.

National Criminal Records Data
A national criminal records database is typically a privately held database that includes criminal records and information compiled from county courts, the Department of Corrections (DOC) and Administration of the Court (AOC); and prison inmate records are typically included within the database.  This includes any jurisdiction that allows electronic access and the ability for non-law enforcement entities to aggregate and store such information.  Many databases also include state sex offender registry data, information pertaining to national and international terrorist watch lists (OFAC), and sanctioned parties’ lists held by various governments.

The information contained within these databases includes hundreds of millions of records, both current and historical.  These databases should be used as a tool for conducting additional research and any potential record discovered on a given applicant should be verified at the original reporting jurisdiction to ensure accuracy and compliance with the Fair Credit Reporting Act (FCRA).  A national criminal records database search is an excellent tool that can be used to "fill in the gaps" by only searching areas where the applicant has lived or worked.  The result could be the opportunity to uncover additional criminal offenses that may have occurred outside of an applicant’s listed residence history; however, this search should never replace county and/or statewide criminal searches for proper due diligence as this information is spotty at best.

Credibility Of FBI Records
A true national criminal records search or database, where all criminal county, state, and federal records are centrally stored, does not exist.  Many people inaccurately refer to the Integrated Automated Fingerprint Identification System (IAFIS), which is housed by the FBI’s NCIC (National Crime Information Center), as a "national database."  This is a misconception for the same reason that statewide repositories do not include all records from that state.  There are often serious lapses in the reporting of data from all states to the FBI or even data-entry errors or lack of proper fingerprint information to properly identify a subject.  In addition, only law enforcement, government agencies and certain employers authorized by state and federal law can access this information.  There are severe penalties for unauthorized access to, or purchase of, this data.

The most significant issue with the FBI database is the inconsistencies and lack of current information in the system.   An independent study conducted by the National Association of Professional Background Screeners (NAPBS) revealed that the FBI database missed 11.7% of criminal records that should have been identified.  Even more disturbing was the fact that of the more than 10,000 criminal records found, 5.5% of them were falsely attributed to those who were never convicted of a crime.  This study supports the methodology of searching at the county level where criminal charges are first entered into record and where one can depend on receiving the most accurate and up-to-date information.

Specific Industry Regulations May Also Be A Factor
Employers dealing with the care of children, the elderly or vulnerable classes, healthcare, banking, security or public transportation, among others, have certain federal and/or state legal guidelines that dictate which criminal searches are required.  A professional background screening provider can help employers identify these compliance measures based on a specific industry and position, and design a program that meets state and federal laws.

Navigating The Courts Is Not A Simple Task
Background screening firms, along with the NAPBS, continue to focus on developing “best practices” for conducting effective criminal records search programs.  The ideal background check should be accurate, comprehensive, consistent, timely and compliant.  Rely on court experts that utilize highly qualified court researchers that are fully vetted with specific jurisdictional knowledge required to deliver the highest quality information.  Having a better understand of the United States court system will certainly guide you on developing a criminal records research program that is both comprehensive and compliant.

Employment Background Investigations works with employers across the nation and around the world to provide a full range of comprehensive and legally compliant criminal background check solutions to help reduce the risks and liability of a bad hire.  EBI can help design a program that is comprehensive, compliant, and timely by using a combination of county, state, federal and national electronic database resources for a complete criminal background check solution.

EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local and international legal requirements.  All content provided by EBI is published for the convenience of its readers and should never be deemed as legal guidance or advice.  Always consult your legal counsel for specific advice on local laws and industry regulations.

If you found this information useful, select the button listed below and access more industry news, resources and tips from EBI, a NAPBS Accredited screening firm and global leader in the background screening industry.

 

Background Checks

Robert Capwell

Posted By: Robert Capwell

EBI’s Chief Knowledge Officer, Mr. Robert E. Capwell, is considered one of the leading experts in the background screening industry with over 22 years of experience in the field. Mr. Capwell was a contributing author of the second edition of the ASIS Pre-employment Background Screening Guidelines and has written numerous articles and whitepapers for various publications including a periodic column on background screening for The Society for Human Resource Management (SHRM) Online. He has been quoted in The Wall Street Journal, Human Resource Executive Magazine, Entrepreneur Magazine, and several HR-related publications. Mr. Capwell speaks regularly to industry colleagues and HR Professionals both nationally and internationally.

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