Many people about to undergo a background check wonder, “can you be charged with a crime without knowing it?” While it may be true that not all surprises are bad, there are some that can actually be downright scary, like having a criminal record without knowing.
In fact, these surprises often float under the radar and only surface when running a background check for employment. Some examples include being charged with a crime without actually committing one or being charged for a crime by the police without knowing. The scary part about it is that it can happen in a variety of ways…to anyone at any time.
Is It Legal to Charge Someone With a Crime Without Them Knowing?
It is entirely possible and legal to be charged with a crime without being notified.1 If police suspect that a crime has been committed, an investigation might take place before any charges are filed. But, an investigation does not always lead to charges being filed, and this is very different from being formally charged.
Throughout this process, law enforcement has no legal obligation to notify the parties targeted of any investigation or charges.
This protection especially extends to sealed indictments, which are formal accusations of felony crimes. Sealed indictments are issued by grand juries and are not accessible to the public, staying hidden until they are unsealed at a time determined by specific conditions. In fact, until the indictment is unsealed by the courts, it cannot even be legally discussed, outside of grand jury hearings.7
Sealed indictments may alternatively be referred to as “secret indictments.” Prosecutors typically use sealed indictments out of concern for a suspect’s flight risk and/or the safety of witnesses involved in the proceedings, so they can charge a person for a crime, before the person has been arrested or even notified.
Can You Be Charged Without an Arrest? (Citations and Summons)
In many states, law enforcement agencies and personnel use citations instead of arrests, as a formal summons.4 As an alternative to making arrests for minor violations and misdemeanors, police can hand out citations for suspects to appear in court before a certain date.
In fact, citations have become more popular among law enforcement officers in recent years, as a means for avoiding overcrowding in jails, when the number of local ordinances has increased.
Although it’s quite possible to not be notified of outstanding citations, charges or convictions, courts may send out a summons to request an appearance at a clerk magistrate’s hearing or an arraignment. During an arraignment, charges are announced and the person offers a plea, or response, to the charges being brought.
A clerk magistrate hearing occurs before any charges are filed and serves as a discovery platform for additional information.3
Arrests Without a Conviction
Each state approaches the subject of arrests without convictions differently. While a few states will keep these charges out of ‘official’ criminal history records, most states do include this information.
This means that if police investigate, arrest someone, and bring charges that are later proven false, the person targeted for the investigation will have a criminal record of the incident, even if it never resulted in a conviction.
Across the country, arrests, pending charges, dismissed charges, and police reports can show up on background checks, because they are considered part of the public record, and anyone can legally access them.
Can You Have a Criminal Record Without Knowing?
A common misconception about criminal records is that an arrest has to take place in order for them to exist, therefore, the answer to “can you be charged with a crime without knowing it,” is yes. It is entirely possible to have a record without being arrested or convicted of a crime, and there is fundamentally nothing illegal about it.
While many citations are issued at the point of arrest, police also often investigate crimes after the fact, without an actual arrest taking place first.
Police can gather, collect, or be presented with evidence of wrongdoing, and then turn it all over to prosecution without making an arrest. Prosecutors then have the ability to authorize criminal charges, present them to a court and subsequently obtain arrest warrants without notifying the targeted parties.1
Identity theft can also be a part of unwittingly being charged with a crime. Perpetrators can use stolen or fraudulent documentation like state ID cards or driver’s licenses when taken into custody.
This means that victims of fraud may accumulate criminal charges without ever knowing. When this happens, usually the first indication is during a failed background check. To avoid falling prey to erroneous charges as a result of identity theft, a good rule of thumb is to proactively run background checks on yourself at regular intervals to ensure all the information is accurate and up-to-date.
With lapses in cybersecurity, personal data leaks and the hacking of private databases being a regular part of our digital age, identity theft has become increasingly common. The Federal Trade Commission has put together a useful checklist of steps to follow if you fall prey to it. Common signs of identity theft may include calls from debt collectors, unrecognized withdrawals from your bank accounts, notifications from the IRS regarding mismatched tax returns, and more.
In addition to deliberate identity theft, a person’s background check may show them convicted of a crime due to a data entry error. Although technically in this case, ‘can you be charged with a crime without knowing it’ doesn’t mean the crime was actually committed… it simply means that the background check will report that the person committed it.
Since much of the data that is returned on a background check comes from state criminal databases, police departments and local court clerks, it can be all too easy for a human to have a data entry error without realizing it.
For the same reason as identity theft, running a personal background check to scan reports for inaccurate information, which can occur for a variety of reasons, is a good call.
How to Find Out If You Have Been or Will Be Charged with a Crime
There are several options available for checking outstanding criminal charges. The following steps can be used when wondering can you be charged with a crime without knowing it:
Obtain Local or State Police Records
As a rule of thumb, it is highly recommended to communicate with law enforcement through an attorney.
Local police typically accept requests for warrant searches, which can uncover any criminal charges that have been filed and processed. It’s also possible to request a copy of a police report from the state District Attorney’s office, in order to better understand the charges.
Police reports typically contain detailed descriptions of incidents and information about any involved parties. The following information may be required to submit a warrant search request:
- Name and address.
- Social Security Number or a driver’s license number.
- Payment for the service. The cost of the service will vary depending on the agency.
- Fingerprint file, which may be required at time of submission.
While the background check may take several weeks to complete, it’s a small price to pay for having some clarity and peace of mind.
To get a background check from local law enforcement, follow these steps:
Step 1. Visit the Local Law Enforcement Facility
To request a background check or to find pending charges and public records in person, first find the nearest law enforcement facility.
For example, to find the nearest State Police station in Vermont quickly, open any web browser and type “state police station near me;” the search will yield a link to the Vermont State Police Station finder on their official website. Applicants can also search “local police station [town]” to find it.
Choose the appropriate location and visit. Once there, ask about the specific process required to search for pending charges.
The downside to an in-person request is that if pending charges have been filed, police may go ahead and detain the person in question, making the arrest.
Step 2. Request Public Records Online
A bit safer process to use is an online search for pending charges. Similar to finding a physical location to request public records, you can often submit a records search request online by visiting the local law enforcement agency’s official website and navigating its online portal.
For example, the Vermont State Police website offers a secure, fillable PDF form to use when making public record requests.
Keep in mind that not all pending charges will definitely show up on this sort of history search. If the charges stem from a sealed indictment, they won’t show up.
While the state of Vermont doesn’t require any specific case information (i.e police case number, date of incident), the requester must provide their full name, telephone, complete mailing address, e-mail address, their relationship to the case and a reason for the request. Most states have additional statutes that apply to public records. In Vermont, the Public Records Act compels agencies to provide requested records within a certain date.
When a public record request is given to the government, the statute makes it mandatory for that agency to provide the report within 72 hours (business hours), redact it with an explanation, or request an extension of the records takes longer to find. The law does allow for denials, but these must comply with the reasons allowable to deny a public records request.
Obtain Local or State Court Records
Court cases are also public information and can be accessed at a local courthouse, either on paper, digitally, or both.5 Depending on the court, records may be accessible remotely online as well.
Although most cases are available to be publicly viewed, there are some types of cases that cannot be accessed (i.e cases involving juveniles and other sealed or expunged records).3
Of course, it’s important to note that court records won’t always yield results about ‘can you be charged with a crime without knowing.’ Depending on the jurisdiction, pending cases may or may not be listed in a report.
Accessing Court Records Online
The easiest way to obtain or view court records is through an online portal, if available. In California, there are two ways to access court records electronically: using a computer at the courthouse, or using a personal computer or device with browsing capabilities. The latter is referred to as “remote access” and its use is limited.
To view court records in person using a courthouse computer, visit the courthouse in the area of the search. For example, to find the nearest courthouse in California, open your web browser and type “courthouse near me;” the search will yield a link to the official California Courts website, where you can use the “Find Your Court” feature to search for the nearest courthouse by ZIP code.
To gain remote access to court records in California, a request form must be filled out and submitted by email, U.S. Mail, or fax. Judicial records can be accessed remotely by the following individuals:
- Party in question
- Party’s attorney
- Court-appointed personnel
- Legal aid staff
- Government staff
Obtain Federal Court Records
To search for federal cases there is no better system than PACER, maintained by the Administrative Office of the U.S. Courts on behalf of the federal Judiciary. Case searches require users to complete a registration.
While registration for PACER is free, using the service to find cases is not and is priced according to the type and size of files associated with any given case. To avoid mounting unnecessary fees, it is recommended to search using specific case numbers and additional filters explained on the PACER fees page.
Department of Justice – FOIA Request
When all else fails, FOIA prevails. The Freedom of Information Act allows individuals to submit requests for the Department of Justice to deliver local, state and/or federal reports; the DOJ can provide reports from any agency.
Before submitting a FOIA request it is crucial to be sure you are submitting to the correct agency in order to avoid rejections and delays. Requests can be submitted online through the Department of Justice’s FOIA Portal.2
Check for Pending Court Cases
Depending on the level of a background check being conducted, it’s also entirely possible for pending court cases to appear. Several states limit employers or others from seeing pending criminal charges when conducting a background check.
Some states make it illegal to ask a job applicant about an arrest that did not result in a conviction unless the court case is still pending. Alternatively there are states which only allow employers to ask about pending charges or arrests if the nature of the crime bears relevance to the job being applied for.
Whether or not a pending court case will show up on a background check can be determined by the type of charge. Because most criminal charges occur at the local or county level, they may become available quicker since they are entered at the county courthouse level, as compared to the state level.
State criminal charges are less in number and are not recorded in state databases as often, making it possible to take as long as weeks or months for pending charges to show up in the state system.
Check the Sex Offender Registry
Being charged with a sex crime without knowing can effectively reshape the way you live, impacting employment, residency and more. This can happen when data entry errors cause someone to be listed on the sex offender registry, who haven’t committed any crime.
In order to make sure that the data is correct, the federal and state system is simple to navigate.
Checking the registry is a fairly straightforward and simple process, thanks to the existence of National Sex Offender Public Website.
To check the registry, simply navigate to the registry website using a browser. The website home page offers two different search options, either by entering the first and last names of the party in question, or by using an address.
If searching by address, the NSOPW search tool uses the address provided as a central point and looks for sex offenders located within a 1, 2 or 3 mile radius from that address; the radius can be selected by the searching party.
It is worth noting that every jurisdiction approaches release of sex offender information differently. The ways sex offender information is collected, maintained and displayed is determined by local laws in every respective jurisdiction.
These laws also apply to the process of removing oneself from the registry. In order to be removed from the registry, individuals must contact the jurisdiction directly. Anyone can find all the information regarding different jurisdictions using the All Registries section of the NSOPW.
For example, Maryland oversees sex offenders through their Department of Public Safety & Correctional Services, offering their own search tool to find local offenders. Within this department, Maryland has a specific sex offender registry unit which handles all registry-related inquiries.
When wondering, “can you be charged with a crime without knowing it,” the scary truth is yes, anyone can. Individuals who suspect they may be the subject of an investigation should obtain the advice of a criminal defense attorney, who will be able to search for pending charges quickly, since many officers of the court have accelerated access to information.
In addition to searching for pending charges manually, a reputable background check can also scour police report and court databases to find any pending charges, even those that have been entered erroneously. Knowing the answer to “can you be charged with a crime without knowing it” and how to discover the truth can help individuals meet the legal challenges that accompany criminal charges.