From the earliest stages of reviewing a suspicious claim, insurance professionals often rely on criminal background searches to make informed decisions about claimants, witnesses, experts, physicians, and occasionally their own employees. Full discovery of undisclosed criminal histories should be the result of advance preparation and due diligence, leaving no opportunity for surprises during settlement negotiations or “Perry Mason moments” at trial.
Whether the criminal search is conducted by an internal special investigations unit (SIU) or an outside firm, there are a number of pitfalls to avoid when managing or contracting these kinds of investigations. Even experienced claims managers will be hard-pressed to interpret correctly the results of an incomplete, ambiguous, or contradictory work product. Faulty assumptions can lead to costly mistakes for insurers. Here we’ll look at five of the most persistent misconceptions about criminal record searches.
Myth #1: Only the FBI Has Instant Access to National Criminal Records.
Actually, not even the Federal Bureau of Investigation (FBI) has exhaustive nationwide coverage. The FBI maintains the National Crime Information Center (NCIC), a computerized criminal record repository that is queried several million times daily by law enforcement and government agents. Established in 1967, the NCIC is the gold standard for criminal background searches, but it is not legally accessible to the public—and it is not without its problems.
After the Oklahoma City bombing in 1995, for example, FBI agents were forced to rely on an “offline” search of traffic stops after identifying Timothy McVeigh as a suspect. It was not until nearly three days after the attack when they contacted the Oklahoma State Highway Patrol that they discovered McVeigh was already sitting in a jail cell on an unrelated charge. In another example, an innocent Los Angeles man was arrested three times at gunpoint due to an error of mistaken identity in the NCIC.
Records in the millions have come online in recent years. Yet still there are a surprising number of local courts and law enforcement agencies that lack digitized systems capable of communicating information in real time, creating persistent “black holes” in NCIC coverage.
Myth #2: Commercial Database Searches Are Sufficient for Most Situations.
Legal and investigative databases from providers such as LexisNexis, Reuters/WestlawNext, and TransUnions’ TLOxp are essential resources for beginning a background investigation. They produce quick hits on convictions, judgments, liens, and bankruptcies. However, though these databases claim to be national in scope, there can be serious limitations in their geographic coverages—limitations that are almost never fully acknowledged up front. Some courts are covered only for a few years, while others are excluded entirely.
For example, a background investigation of an individual showed that he had only a single reported conviction for assault from the 1980s, according to the “comprehensive” report of a well-known national database. Yet after tracing his history of prior residences and manually checking every municipal, county, state, and federal court in those jurisdictions, a dozen convictions were identified. His extensive criminal history included charges for criminal trespassing, battery of a corrections officer, and multiple counts of arson.
The initial database search indicated that this individual was a one-time offender, but the full investigation revealed that he was, in fact, a lifelong criminal.
Myth #3: Local Court Searches Require a Local Investigator
In reality, the majority of most background investigations can be conducted from an office anywhere in the country but only if the investigator is experienced in dealing with distant courts and their policies, terminology, and idiosyncrasies.
Courts that do not offer online public case access often will accept requests by fax or mail, but their turnaround times do not always correspond with tight litigation timelines. Fortunately, if you call the court during a slow period and are professional, patient, and polite, oftentimes a clerk will run a name (or two) while you wait on the phone. This can reduce the time and costs to complete a background investigation greatly. Still, in some places searches simply cannot be performed remotely; you will need somebody local to directly gain access to an on-site court terminal or dig through the docket books.
Myth #4: Seven Years Is an Appropriate Stopping Point
Many background investigation firms automatically—and artificially—limit their searches to the past seven years. This simply is baffling. Though the Fair Credit Reporting Act (FCRA) does limit the reporting of adverse information more than seven years old and bankruptcies more than 10 years old, these rules apply only to offers of credit or employment. They have no bearing whatsoever on the admissibility of evidence in civil or criminal actions.
Unless you are planning to hire the subject, your investigator should be searching back as far as possible. The availability of records will vary considerably by court venue. If practicable, the search should extend back to the subject’s 18th birthday.
Importantly, the final report should specify date ranges of available records for all courts. Date ranges provide essential context on what the report contains and whether older historical records were excluded from the scope. When it comes to interpreting a criminal record search report correctly, these kinds of caveats are critical. Unfortunately, many investigators focus solely on the records they successfully locate without acknowledging the potential blind spots.
Myth #5: All Juvenile Records Are Sealed and Unsearchable
Running criminal records searches on minors or searching for historical juvenile records on adult subjects may seem like a waste of time since most juvenile records are sealed. Minors with a criminal history often are shielded by state disclosure rules, yielding an official response of “no offenses found” when a search request is submitted.
For older juveniles charged with serious crimes, however, some defendants are transferred to adult court, making the proceedings a matter of public record. Moreover, in some states such as Maine, the state police will disclose report information readily on serious and violent crimes committed by juveniles.
In addition, for juvenile sex offenders, the Adam Walsh Child Protection and Safety Act of 2006 requires registration of minors age 14 and older who are convicted of violent sexual assault. In recent years, 16 states have expanded the amount of related offense information available to the public under the Sex Offender Registration and Notification Act (SORNA), which is Title I of the Adam Walsh Child Protection and Safety Act of 2006.