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Real World Criminal Background Checks

October 13, 2018

 

 

Criminal History Records;

 

Introduction:

 

For many, an integral part of a background investigation is to determine if someone has a criminal record.  With so much information available over the internet it is logical to assume that criminal history records are there as well, you just need to know where to look.  There is some truth to this, but it is not the whole story as what holds true for one state, can be completely wrong for another state.  There are many misconceptions surrounding availability, accuracy, cost and ease of access to, criminal history records.   We have written this guide to Criminal History Records to help dispel some of these misconceptions.  No doubt, since you have found us via our website, that during your search you probably came across numerous websites advertising criminal records searches, where you can “Instantly find anyone’s arrest record, National Wants & Warrants Searches, check out your nanny, the person you met through a dating site” etc. Or even seemingly legitimate Pre-employment Background Screening Companies that tout their membership credentials in professional organizations.  Although there are certainly legitimate background screening companies on the internet, unfortunately, much of what is found on the internet is very much a “Buyer Beware” situation.    Obviously, the preceding statement appears to be self-serving, they are our competitors after all.  Please don’t take our word for it.  Google “HireRight and FTC” or “Uber Criminal Charges”, these are but two examples of how major players in the Background Screening industry failed their clients when it came to the handling of criminal record searches.  Our purpose here to is ensure our clients have an realistic understanding of how criminal history records are searched for and obtained, and how they may be used when the Fair Credit Reporting Act (FCRA) or state employment law comes in to play.  This will enable our clients to make an informed decision as to how extensive a criminal history record search will fit their needs.   Please understand that this guide to criminal history records is written for informational purposes, Chart House Research & Investigation Co. is not a law firm, and this should not be construed as legal advice. 

 

  1. Reality vs. the Internet or where criminal history records really come from!

 

There are several ways an individual can develop a criminal history record including when they have no connection to an arrest or a crime, whatsoever.  The majority of criminal history records originate with an arrest by local or state law enforcement or coming into contact with law enforcement in connection with their investigation of a crime.   This frequently begins the legal process that continues in the criminal court system.  The criminal court’s records are updated as the case proceeds, and eventually decided.  Elements of the court’s records are usually at some point transmitted to a central state repository.  The court, if approved, can transmit case information to a Federal Database administered by the FBI called the National Criminal Information Center (NCIC). The law enforcement agency can also transmit information regarding the case to the central state repository, as well as to NCIC.  This holds true for federal law enforcement agencies and federal courts as well.  Local law enforcement and courts can input wants & warrants into NCIC, however they frequently don’t for relatively minor or non-violent crimes since they do not want to bear the cost of an extradition hearing and transporting the accused from one state to another if the accused is arrested in another state.  Many courts are underfunded and therefore understaffed, so there can be long delays between when a court file is updated and when information is transmitted to the state repository and/or NCIC.

 

 A person can develop a criminal history record in the State repositories as well as NCIC as a result of applying for a position or license that by state or federal law is required to have a statewide criminal or national criminal history search done on the applicant, usually via submitting the applicant’s fingerprints to the appropriate agency.

 

  1. Who can access criminal records?

 

The answer is dependent on which government entity holds the records.  Criminal records and related information are compiled and stored by federal, state and local law enforcement agencies as well as courts, prison systems and state repositories.  Who and how we may access criminal records is regulated by law.  Members of accredited law enforcement agencies can access records through the FBI’s National Criminal Information Center (NCIC).  NCIC is a national computerized index available only to accredited law enforcement agencies, and to state agencies for licensing purposes, it contains an individual’s RAP (Record of Arrests & Prosecutions) Sheet, Convictions, Wants & Warrants, Stolen Properties Information, Known Gang Members, Individuals who have been fingerprinted, and criminal history obtained, Missing Persons information.  Data is provided to NCIC by the FBI, federal, state, local, and foreign criminal justice agencies, and authorized courts and State Registries of Motor Vehicles.  Unauthorized access or dissemination of NCIC information is a criminal offense.       State and local governments and certain industries (Banking, Securities, those working with vulnerable populations, or whose position requires a Security Clearance) that are required by state or federal law can have an individual’s fingerprints transmitted via a fingerprint card (10 Card) or Live Scan to the FBI for a criminal history search.  For those of you who are frequent flyers and decided to go through the TSA’s Pre check program your fingerprints were transmitted to NCIC via the Live Scan system.  If you have never been fingerprinted before, you now have a criminal history file in NCIC. Firearms dealers have access to a subset of the NCIC system called the National Instant Criminal Background Check System (NICS) which either approves or declines the sale of a firearm to an individual.  If a sale is declined no details are transmitted to the firearms dealer.  No Consumer Reporting Agency (CRA) which includes private detectives and background screening agencies can access NCIC.   Do not confuse so called “National Criminal Background Checks” that you will see advertised on the internet with NCIC.  They do not have access to NCIC.  Other than NCIC there is no such thing as a “National” or “Nationwide” criminal background search. 

 

State Repositories are a mixed bag, like NCIC they are open to law enforcement agencies but depending on the state, access covers the spectrum from not at all; to only the subject of the criminal record; to select industries with prior approval; to public access,  turnaround time can range from immediate to 6 weeks.  Information provided ranges from convictions only within a given time frame, to complete criminal history information.  Those that allow access frequently charge fees.

 

Court criminal files are public record, but can be sealed for a variety of reasons and juvenile records are usually sealed unless they have been tried as an adult or are considered sexual offenders. In most states, criminal records are maintained in the county or district in which the criminal action occurred.  In the federal courts, records are maintained in the appropriate district for that state.   It’s important to understand that a search in one county or district will reveal criminal actions in that county or district only.  Criminal records in other districts, counties or states will be revealed only if a search performed there.

 

Department Of Corrections/Bureau of Prisons

 

Frequently publically accessible (varies by state); information may include conviction information and release date.   Public information can be limited to those currently incarcerated. Does not include those sentenced to probation or time already served while awaiting trial.  Frequently does not include Local/County Jail Information.

 

  1. What information is available from an individual’s criminal history record?

 

  The answer is dependent on which state is involved and which government entity is the source of the record.  The state repositories frequently will provide a simple Rap-Sheet that includes the person’s name, the identifying information used to match the record to the search, arrests for pending charges, convictions and dispositions and the jurisdiction (county, district, and municipality) that it occurred.  Arrests that do not result in a conviction or cannot be linked to a conviction may or may not be reported depending on the state.  Some central repositories will provide conviction information only.  Some will exclude misdemeanors that are eligible for automatic expungement if certain conditions are met. The most up to date and accurate information comes from the court where the case originated. 

 

The criminal court case files have the most extensive and current information available.  It usually contains the following: Criminal Complaint, Original Charges, and Affidavits by law enforcement, Witness statements, name, aliases, personal identifiers such as Date of Birth, Social Security Number, Driver’s License Number, address, Bail information, motions, pleadings, and disposition. If other parties were arrested with the subject or part of the criminal action they are usually identified in the court file.  We cannot emphasize enough the importance of reviewing the court file.  Aside from the arrest and initial investigation, everything else relevant to a criminal case is filed in the courts.  It is the courts who transmit the case information to the central state repository when they get to it.   This could be days, weeks, months or not at all, after it was filed in the court.   This means a criminal history search done only through the central state repository can miss multiple arrests for Assault & Battery (but no convictions), convictions, and reversals on appeals. As well as, court orders disallowing the conviction to be used in determining eligibility for employment.    It should also be noted that particularly in cases of domestic violence, an individual can have multiple arrests for Assault & Battery but no prosecutions or conviction for it because the victim refuses to testify or co-operate with prosecutor’s office.  In those states, where the central repository only reports convictions, this information will not show up on a statewide search.

 

  1. What information is required to search for a criminal history record?

 

There are several pieces of information needed to search for a subject’s criminal history record.  They are the subject’s name, date of birth and address history.

 

Because many people share the same name (just search for John Smith in the White Pages), other identifiers are required to insure the correct record for the subject is found, not for someone who happens to have the same name.   Contrary to popular belief, the majority of criminal records are indexed by name and date of birth, not by Social Security number.  However, the subject’s Social Security or Driver’s License number can be used to help facilitate a match, once a record is found via a name and Date of Birth search.  However, most central repositories and courts will not conduct a search by name and Social Security number alone.   Depending on the state and court system, records may be indexed by name only, which requires pulling and examining each file, for identifiers (Date of Birth, Social Security Number, Driver’s License Number), before it can be determined if the criminal history record belongs to the subject or to someone else of the same name.  Depending on which central state repository is being searched, maiden names, aliases are considered separate searches therefore separate searches must be submitted for each name that is known for the subject.  Fingerprints are the most accurate way to search for a criminal history file, since it eliminates the risk of someone using a false name and identification, but unfortunately that avenue of search is not open in many instances.

 

The subject’s address history steers us to the appropriate search venues.

 

  1. Are criminal history records available over the internet?

 

Of the over 6000 criminal courts in the United States, 32% do not provide any form of on-line access to their criminal records.  Nor is there consistency within certain states.  Certain county courts will make information available on-line, while the court in the next county will not.   Those that do offer on-line access, the information can be limited to a case index only, may only show open criminal cases, may not be searchable by name and personal identifier.  In criminal cases where there is more than one defendant, a search may result in a “no record found” if the name searched is not the lead defendant.  Because criminal history files contain so much personally identifiable information, such as Name, Date of Birth, Driver’s License number, Social Security number, Address, in order to lower the risk of identity theft, much of that information is not available from on-line or internet based records.  Although many state repositories do allow you order a search over the internet, the search is conducted by repository staff, who then either electronically post the information to the requester’s account or mail the results.

 

  1. Now that we have given you an idea of how criminal history records are compiled and obtained, we are going to examine why so many of these background check companies and internet based “check out anybody anywhere” companies fail to deliver what they claim.

 

You will frequently see advertised a “National Criminal Record Search” for prices ranging from as low as $4.95 to in excess of $120.00. This is a proprietary database, which aggregates records from three sources.  They make bulks purchase of records from central state repositories that allow for the bulk sale of records, local, state and federal law enforcement most wanted records, and web crawlers that compile corrections records.  The main advantage of using this database is that it provides one of the broadest searches possible at a very low cost.

 

Although this provides a broad low cost search, here is what is frequently not being disclosed to you:

 

  • Not Everyone convicted ofcrime enters the State Prison System, therefore they are not included in the records from the Corrections Departments

  • Some of the most populous states do not make bulk sales of criminal conviction data

  • State/Court fees are frequently set by statue and cannot be discounted, e.g. New York State $65.00/Name, does not include maiden name or alias. E.G. Jane Smith, Maiden Name: Jones New York State fee $130.00.  No one who is charging $49.95 for a background check is going to take an $80.00 loss on a search.So are they really searching criminal conviction records in one of the most populous states and a top tourist destination or just ignoring it?

  • State Turnaround Time where search inputs are available on-line varies from immediate to 6 Weeks.

  • Does not cover courts or States where the only way to conduct a search is by physically going to the Court House

  • There is a lag time between when a court updates a criminal file and when the update is transmitted to the central repository

  • Because courts are busy places, many limit the number of files that a person can request/day

 

The best methodology for searching for criminal history records is as follows:

 

 

  • Obtain a Social Security Number Trace through the major credit bureaus to determine the subject’s address history.

  • Verify the subject’s Date of Birth from government sources (Registry of Motor Vehicles, Voter Registration Records)

  • Search/Obtain Driving History from DMV, If they have moving violations/DUI in other states/ jurisdictions, this will frequently show up on their driving record no matter which state it occurred in, thereby giving an additional place to search.

  • Determine/Verify Central Repository update schedule/reporting methodology.Conduct Searches in all states/counties where the subject has resided, worked or attended college/high school by searching State Repositories as well as appropriate courts within whose jurisdictions that the subject resided or owns real property, as well as neighboring jurisdictions particularly in the Northeast where you have multiple states in a small geographic area.If using a central state repository identify any coverage gaps that may require additional site visits to courts/law enforcement in order to close those gaps.

 

  • Conduct search of Federal Court System, examine case files that match or disregard for lack of match.

  • Search Sexual Offender Databases

  • Search Civil Court Records for Restraining Orders and civil suits seeking to recover assets/money as the victim(s) of fraud, embezzlement etc. will frequently seek redress in the civil courts because recovering their money is far more of a priority to them then the prosecution of the person responsible.

 

  1. Because there is so much variation from one state to another on the best method(s) to search for and obtain criminal history records, we will only cover Massachusetts in detail.If you have questions about any other state(s), please do not hesitate to drop us an email, pick up phone, or send us a fax.

 

 

In Massachusetts, Criminal Offender Record Information (CORI) is the name of the commonwealth’s repository for criminal history records.  It is operated by the Department of Criminal Justice Information Services.  iCORI is their internet based service.    Although open to the public, Massachusetts has strict standards on which level of access to information an individual or organization may receive from CORI.

Everyone must apply for an account before they can search iCORI.   All levels of access provide information on convictions for Murder, Manslaughter and Sex Offenses.  Open access does not provide information on Pending Cases, nor most misdemeanor convictions that were disposed of more than one year prior to the iCORI inquiry nor most felony convictions that were disposed of or the release from incarceration was 2 or more years prior to the inquiry date.  Felony convictions punishable by 5 or more years in prison will be returned if the inquiry is 10 or less years from the date the individual was released from date of disposition or date of release from incarceration.  From Least to greatest amount of information:

 

  • Open Access (Available to anyone)

  • Standard Access (Most Employers)

  • Required Access Levels 1-4 (Employers & Organizations forbidden by law to employ those with convictions or pending charges)

 

 

 Effective May 4, 2012, all employers may receive standard access to CORI.  Chart House Research & Investigation Co. is authorized to access iCORI as Consumer Reporting Agency (CRA) on behalf of others who are also authorized to access iCORI.  Massachusetts does not allow a CRA to provide CORI reports to anyone other than an authorized user.   What this means is if you are an employer, property management company, volunteer organization, school or church group seeking a statewide criminal history records search in Massachusetts, you must first seek approval for an iCORI account, and either designate a CRA, to conduct the searches on your behalf or conduct your own searches.   Massachusetts has passed laws similar to but with distinct differences to the Fair Credit Reporting Act.   Massachusetts employers who make use of pre-employment investigations must comply with both Federal and Massachusetts law.  Including to the timing of and types of notifications to the applicant and a signed (wet signature) release from the subject is required.  An electronic signature is unacceptable.    A state issued photo identification or a driver’s license or a military identification or Passport must be presented when signing the CORI form.   If the applicant is unable to sign the form in person, then the form must be notarized. Penalties for violation of iCori access start at $5,000, all users of iCORI are subject to audit.   iCORI has strict standards on record retention and record storage for its users (no public cloud storage permitted).  A deliberate violation of CORI is a criminal offense.  Because the iCORI system limits the scope of information provided to users based on perceived need (i.e. as a Massachusetts private detective agency we are legally forbidden to employ anyone who has ever been convicted of a felony or a crime of moral turpitude) we have Required, Level 1 access to their records when screening our own potential hires, but when accessing on a client’s behalf we cannot override any limits placed on that client’s account by the Criminal History Records Board.  Although there are no time limits on Murder, Manslaughter and certain sexual offenses, other felonies are limited to a 10 year reporting period and misdemeanors to a 5 year reporting period. 

 

At this time the only alternative to iCORI is to conduct an in-person search at the appropriate District and Superior Courts.  District Court searches are indexed by name and Date of Birth.  Certain District Courts make available a public computer terminal for searching, in another one must search through 3 X 5 index cards, or computer print-outs, in certain district courts the clerk conducts the search and will print out a search result for the entire state.  The Superior Court’s search index is searched by name only and county.   Each name match requires pulling the case file(s) to determine if the case involves the subject. 

 

Effective May 4, 2012, unless working with an exempt organization or industry, Consumer Reporting Agencies (CRA) in Massachusetts, which includes Private Detectives, cannot report (even if found) any criminal history records from the courts that were resolved (defined as not on probation or parole or in prison) more than 7 years ago in connection with a pre-employment investigation.  Massachusetts also places limits on reporting first offenses for misdemeanors, simple assault, public drunkenness, affraying, speeding and minor motor vehicles violations, unless the applicant has been convicted of a subsequent offense in the past 5 years.   The federal Fair Credit Reporting Act permits employers to consider arrests that occurred more than 7 years prior if the applicant’s annual salary is $75,000 or is reasonably expected to be $75,000 or more.  The Fair Credit Reporting Act does not place a time limit on convictions.  The District Court hears all violations, misdemeanors and all felonies punishable by a sentence up to 5 years, and other specific felonies with greater potential penalties.  Each District Court’s jurisdiction is limited to specific towns or municipalities.  In felonies not within District Court final jurisdiction, the District Court conducts probable cause hearings to determine if a defendant should be bound over to the Superior Court.  The Superior Court has exclusive jurisdiction on all first degree murder cases and original jurisdiction of all other crimes.

 

Summation:

 

Unless you work in an industry that is required by law to check for a national criminal history record via an FBI fingerprint search, there is no single national source of criminal history records in the United States.  A diligent search for criminal history records requires knowledge of the different rules and modes of access for each of the fifty states and their political subdivisions, as well as the Federal Court System and U.S. Territories.  For state repositories that allow access to their records, fees range from $0.00 to close to $100.00 per name searched.  Many state repositories also charge an annual fee for access in addition to their per search charge.  Access to and information obtained from state repositories is regulated by state law and is different for each state.  State repositories are unlikely to have the most up to date information.  Diligence requires an in-person search at the court house for the most current and accurate information.  Many of the repositories that are on-line clearly state that information obtained from their internet based service cannot be used in making an employment decision.

 

 

 

 

 

 

 

 

 

 

 

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