By Collin County Criminal Defense Lawyer Jeremy Rosenthal
I get asked about the dreaded background check a lot. As in every day.
The whole point of criminal defense is (1) keeping my client out of jail; and (2) keeping my client’s record as clean as possible. It stands to reason this is a huge concern for everyone who comes into my office.
I’m a criminal defense lawyer and I can bore you about the rules of evidence, the Constitution, and what the 5th Court of Appeals in Dallas has been up to all day long. I’ve picked up a thing or two about criminal background checks along the way so here is some basic info:
Who Keeps Criminal Records?
Criminal records are kept by the Federal Bureau of Investigation (FBI) and the Texas Department of Public Safety (DPS). The FBI’s database is called the “National Crime Information Center, or “NCIC” for short. DPS maintains the “TCIC” or the Texas Crime Information Center. Every time someone is arrested in Texas they get both a TCIC and NCIC tracking number.
TCIC and NCIC records are not public and it’s actually a crime for someone to disseminate it to the public.
Also city and county jails keep records with varying degrees of success as well. This could show arrests or tickets on a city level which may or may not get reported either to the TCIC, NCIC or online. Some publish citations directly to the public.
Private companies are allowed to purchase records. These companies in turn re-format them to make them more user friendly and are the traditional back-ground search companies typically used.
So How Does a Background Search Work?
Police and law enforcement can directly access TCIC and NCIC records when they run a report. Everyone else has to go through a private company. Some search engines are more reputable than others. Again, the private search engines typically purchase records and provide a more user-friendly product to whomever is doing the search.
So generally a lender, employer, or apartment complex first has to have a legal reason and/or authorization to run your background check. This is under the Gramm-Leach-Bliley Act of 1999. When logging onto the search engine a user is asked the purpose of the search. Not to get too bogged down on this point, people can’t run your back-ground just to do it. They have to have a reason.
Will The Background Search Be Accurate?
It’s a human process so there will be an error rate. An additional problem is prospective employers, bankers or landlords also tend to not understand what it is they are reading. Ultimately you have to recognize the world isn’t a fair place. Bad background searches will happen and even a good result from a criminal case can be mis-read by someone making a hiring decision.
Some Anecdotal Good News
Experience teaches me a few things about background searches. First, is when someone or their loved one is charged with a crime — there is a feeling every eyeball in the planet is on them. It is common to feel everyone knows everything about what they are going through. This is not true. Additionally, background checks are probably much more rare than you think. Not everyone is running you every day.
Also my experience is most employers tend to take a ‘wait and see’ attitude when they do learn of something negative on a background report. They are afraid to take action and really do want to get both sides of the story before they make a decision. This at least allows the person a chance to explain their side.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about this or any situation you should contact an attorney directly.