Will My Dismissed or Non-Criminal Case Come Up in Background Checks?

A common source of puzzlement for people who have been arrested is how to understand what type of information about the case will be available to potential employers if the case is dismissed or settled without a criminal conviction.  People frequently expect that when their cases are dismissed or settled favorably, that the information about the case, including the arrest is obliterated from the universe and unavailable to anyone including the Government.  Or, if they don't believe this automatically happens, they believe that there is some process by which a criminal defense lawyer can make it happen.

Unfortunately, things are a bit more complicated than that.  The good news, or calming news that you should know up front is that for most circumstances, with most employers, a case that is settled favorably (by way of dismissal or non-criminal settlement) will neither be asked about or capable of being found.  

The more unsettling news is that arrest information and the information about the existence of a criminal case against you is always going to be available in some circumstances regardless of the outcome in Criminal Court, and there is little to nothing that Criminal Court is going to do about it.  This is because the Government reserves the right, under some circumstances, for some sorts of employment regulated by the Government, to run background checks that ask about and can access arrest information, independent of the outcome in Criminal Court.  Typically, this will be in the context of law enforcement related employment (think FBI, police officer, spy, secret service, top secret security clearances).  But also, this may apply in situations involving teachers, health profession, lawyers, and people in FDIC regulated businesses, like banks.

Now if you think this is unfair that you will be forced to account for an arrest that happened to you where the case was dismissed or even if you were acquitted after trial, the Government's desire to access the information is not actually all that crazy, as frustrating as it is.  In order to understand why that is, you need to take a step back and consider a bit about the criminal justice system in the United States, and how it operates.

So here goes...(stick with it, because in the end, the news is not as terrible as you may believe).

In Criminal Court, in the USA anyway, we have established an artificially high burden of proof (beyond a reasonable doubt) that the Government must achieve before anyone can be found guilty of a crime.  We do this for philosophical reasons born out of a fear of Government abuse of power at the expense of comparatively powerless citizens.  We choose to make it very difficult for the Government to convict us of crimes and send us to jail, even if it means that people who are actually guilty of crimes may go unconvicted and unpunished.  We believe we have more to fear from a sinister government than individual people.

But people often forget that these rights like presumption of innocence and the burden of proof of beyond a reasonable doubt really only apply in that narrow context of when the government is seeking to convict us of crimes and send us to jail.  Outside of that context, the presumption of innocence does not apply.  Your employer is not required to presume you innocent.  Neither is your neighbor.

Further, people often imagine that being acquitted in criminal court, or, winning at a trial, means that they are "innocent".  That is not technically accurate.  No criminal trial in the history of the United States has ever actually been about whether someone is innocent.  The question is whether or not the Government has met this artificially high standard of proof called beyond a reasonable doubt.  We know from the get go that there can be plenty of reasons that the Government may be unable to reach the very high burden of proof on someone who is absolutely guilty of exactly the crime he is being prosecuted for.  Maybe witnesses are a little too fuzzy on their memory of the events or the description of the person who did it.  Maybe the prosecutor is terrible at putting a case together and clearly making arguments to the jury to establish the proof.  A thousand possible pathways exist to a failure to meet such a high burden even if the defendant is actually guilty.  

Therefore, being found "not guilty" by a jury is absolutely NOT an entitlement to say that you have been found to be "innocent".  It is no coincidence that the term used in criminal courts in this country is "not guilty".  Jury verdict forms have only two choices: 1) guilty or 2) not guilty.  There is no choice of innocent.  This is purposeful.

All of this is a long winded way of getting to the point of why the Government allows itself to consider the underlying allegations in criminal, or criminal "ish" charges in preparing some background investigations of people.  The Government in this context is not looking to put you in jail or convict you of a crime.  The Government is simply deciding whether or not to give you a job.  You don't have the protection of the presumption of innocence and the Government isn't bound by the burden of proof of beyond a reasonable doubt when it is deciding whether or not to give you a job.

So while it is certainly great that the outcome of your case may end up being a dismissal where you never acknowledge guilt or wrongdoing of any kind, that doesn't mean that the Government is required to pretend that the accusation never happened or that they are not entitled at least to review the circumstances so that they are satisfied that the outcome from criminal court had a connection to reality as opposed to being a result that was generated out of an abundance of caution where a citizen's freedom was at stake or by some sort of plea bargain that had more to do with mercy and prosecutorial discretion than reality about what actually happened.

To illustrate this point starkly:  Imagine that Jack is applying to be an FBI agent.  It is a legally true statement that Jack has no prior criminal convictions.  At the interview for FBI agent, Jack is asked the question, "Have you ever been convicted of a crime?"  Jack answers truthfully, "No."

Assuming all other aspects of Jack's application are perfect and highly competitive as to other candidates, Jack now gets the job.  Congratulations to Jack.  He is now an FBI agent.

But what if the interviewer at the FBI were allowed to ask this follow-up question: "Have you ever been accused of an offense?"  And what if Jack's answer to that question were, "Yes, I was arrested for a string of armed robbery/ murders across the midwest about 10 years ago, but I beat the raps because the witnesses couldn't make a positive enough identification."

This is obviously an extreme and silly example, but it illustrates the point of why the Government believes it should not be bound by the outcomes alone of criminal cases when making determinations about jobs and security clearances, and such.  Now sure, it could be that Jack was found not guilty because in fact he was innocent, and the people could not identify him because in fact he was not the killer.  But most people would say that the FBI would be entitled to know about the case regardless of the result, and at least investigate it themselves before handing Jack a gun and a badge.  It could also be that in reality, Jack was absolutely guilty of everything but that he gained the benefit of an artificially high burden of proof.  Lucky for Jack, and consistent with our overall philosophy of when the Government should be allowed to put people into jail, but maybe we don't want to hand Jack a gun and a badge.

The silver lining in all of this, for people who are arrested and gain the benefit of acquittal, or dismissal by the ADA, or otherwise some favorable non-criminal resolution is that the Government is not generally interested in the accusations against people in this context because it really cares about small matters from when you were young that resulted in non-criminal convictions.  The Government is more interested in less common, more sinister situations such as the example about Jack the FBI agent above.  So, especially if the matter is dismissed, and was not terribly serious or troubling to begin with, the Government is unlikely to give two hoots about the case.  

By Don Murray

The Eagle's Eye - Volume 1, Episode 1

Welcome to the Eagle's Eye Blog, where we will ruminate about ruminations on Westchester and Putnam criminal defense practice and experience.  If we repeat a lawyer's war story of some adventure of his or hers in Court, please know in advance that a lawyer's stories about adventures in Court are nearly as reliable as stories spun by the Devil himself.  You have been warned.  Of course we except ourselves from this rule because as your humble scribes, we have no particular agenda other than to inform or entertain (never both, always one or the other).  If you don't feel informed by one of our posts, then you should be feeling entertained.  If you don't feel entertained, we would at least hope that you would feel informed about something or other.  If you feel neither informed nor entertained, then I'm afraid we have failed and we beg your forgiveness.  But check back in and something more to your liking one way or another is bound to appear sooner or later.

Don Murray