Over the past several years federal agencies and state legislatures have written legislation that creates confusion in the background check world.  There are five (5) main parts to a criminal case.  Understanding these elements will help you better analyze criminal records and help you understand legislation being proposed by our local governments.

The following are the processes used when law enforcement has reasonable belief or probable cause that a person has committed a crime.

  1. Arrest – Detained and taken into custody by a police officer where the defendant is not free to leave, prior to the defendant being formally charged with a crime.
  2. Charge – Crimes charged against the person by the officer (ticket or booking) or prosecutor (indictment or long form complaint)
  3. Plea – A plea is that which a defendant agrees to say he/she did or did not do regarding the charge.  A plea is also the agreement that the defendant reaches with the prosecutor and the court and can take many forms. 
  4. Trial – The Defendant pleads “Not Guilty” of the charges and the matter goes to Trial where a judge determines the law and facts, or to a jury to decide what are the facts.
  5. Disposition –  This is the final designation of the case in the Court System.  The disposition is the verdict of the jury or decision of the judge at the end of the case.

Interesting facts about each step:


HUD and legislatures around the country are focused on not using arrest records in the background check process.  In fact, today a simple arrest that does not result in a “charge” cannot be reported in a criminal history report by a credit reporting agency. If there is no charge, a prosecutor has made the decision that they do not have enough evidence to pursue the case and achieve a conviction.  The bottom line is that a simple arrest does not mean much.  Often an arrest does not lead to a charge.  For example, I had an old friend from high school driving down the freeway last month in his truck while pulling a trailer.  He noticed the car in front of him unexpectedly started braking in the slow lane.  He drove around the slowing car and noticed a man walking down the middle of the lane right into oncoming traffic.   Ben, my friend, was concerned for all parties so he pulled over on the right shoulder behind the man who continued to walk towards the slowing car.  He got out of his truck and walked toward the now stopped car and asked if he could help the man.  The wandering stranger shouted a few choice words, ran past him and jumped into his running truck.  Since the window was down my friend quickly ran over and climbed halfway through the window and grabbed the gun he kept in the side door.  He put the gun to the guys head and told him to get out of the truck. The man pressed the gas and drove off. Ben fell out of the window but managed to shoot 3 shots through the door, intentionally aiming at the baseboard of the truck frame.  He had a distinct feeling not to shoot this individual.

The authorities later found the truck and trailer in a town nearby where they apprehended the suspect who was high on crystal meth.  After getting word where his truck was, Ben went to get his shot-up truck, only to find himself under arrest for discharging a firearm in city limits.  He was not taken to jail, but the recommendation for charges was sent to the county prosecutor.  After the county prosecutor reviewed the case and testimony of all parties, they chose not to prosecute.

If we were to investigate Ben’s criminal history, he would have an arrest record.  If we stopped there and denied him a job, insurance, or a rental home, we would be doing him an injustice and under the current law he would have a case for damages for such an act.  Today it is standard procedure to look past an arrest and look for the charge and disposition of the case.  As a result of legislatures and HUD taking away arrest records from the analysis framework, it does not affect us as we are looking for what actually happened at the end of the case.



Police departments and other agencies can request charges to be filed, but it is the prosecutor that must prove the case and they must see proper admissible evidence to do so.  Often prosecutors realize they are not able to reach the burden of proof that is needed in a criminal case, and therefore, refuse to file charges.  But if the prosecutor feels they have sufficient proof, they will file charges with the court or bring an indictment.  Once charges are filed, the criminal history will show that the case is “open” or “ pending”.  The case will stay in open/pending status until a final disposition where the case could be dismissed, a plea is accepted by the court, or the case goes to trial. Credit Reporting Agencies are allowed to report “open” or “pending” cases.



Once charges are filed the defendant can plead guilty at the arraignment where the charge(s) is/are explained to the defendant. A guilty plea at this stage is rare.  Usually the defendant enters a not guilty plea at the arraignment and a pre-trial conference is scheduled where the defendant is presented with the evidence that the prosecutor has against the defendant.

At the pre-trial conference the defendant will talk with the prosecutor and learn what the prosecutor is offering the defendant.  If the defendant comes to an agreement with the prosecutor, the defendant may present the agreement to the court as a “plea to the court” asking the court to accept the agreement. 

There are straightforward pleas and more complicated pleas.  First, the easy pleas.  The defendant pleads guilty to the charge, as it is set forth or as reduced, i.e the defendant did what the state said he/she did; this is a conviction.  Or, the defendant pleads, “no-contest” to the charge or a reduced charge.  This means the defendant agrees that the state has enough evidence to get a conviction even though the defendant does not fully agree with the charge or reduced charge; this is also a conviction. 

The difficult pleas occur where there is much more interaction between the prosecutor and the defendant to work out an agreement with each other. With that in mind, most cities and counties want to save money on jail/prison costs and problems with jail/prison overpopulation and save money by not going to trial. They want to find ways to help offenders stay out of jail and keep a clean criminal history so the defendant will not have issues with current or future employers. Therefore, depending on the nature and severity of the charge and the facts of the case, prosecutors use a tool called a diversion to help negotiate a deal or an agreement with the defendant.   There are many kinds of diversions, but the basic nature of any diversion is to offer a defendant that does not pose a significant risk to others a way to have some consequences, yet avoid a conviction, jail or prison time.   

For example, where a defendant is caught with a small amount of marijuana, a prosecutor may offer the defendant to take some drug education classes, have clean urinalysis for six (6) months, do some community service and remain law abiding for six (6) months, when, upon successful completion of those terms, the prosecutor would dismiss the case completely.  Then there would be no conviction on the defendant’s criminal record.  In some courts an initial plea of guilt is required as an extra incentive for the defendant to want to successfully complete the terms in order to have the plea of guilt removed. 

A plea agreement can give a defendant a second chance to keep a conviction off their record.  This kind of situation can leave employers and landlords in a tricky situation.  I recommend you consult with your legal counsel on how to handle those cases when making any decision regarding that individual. The reality with diversion plea agreements is that the offender agreed to a court-imposed consequence, not that the offender did not do the criminal act.



If a defendant does not believe they are guilty, or if the defendant does not want to negotiate a deal, or cannot get the prosecutor to agree to any terms suitable to the defendant, then the court will schedule the case for trial.



A final disposition is what the public sees on the court record at the end of the case.  A disposition will be one of the following:

  1. Plead guilty to the charge at arraignment;
  2. Plead guilty or no contest to the charge or amended charge at the pretrial conference or some time before trial. 
  3. The defendant entered into some form of plea agreement for diversion.  The defendant successfully completed the terms and the defendant receives whatever was promised by the prosecutor.  If the defendant did not successfully complete terms, the defendant is found guilty, is re-instated to the terms to have another try at completion, or the matter goes to trial. 
  4. The matter went to trial and the defendant is either acquitted and found not guilty or is found guilty. 



Analyzing criminal history is not an easy task.  It takes experience in the criminal system to get it right.  Every case is different, yet we are supposed to treat everyone the same.  We cannot re-litigate the case or talk to witnesses or prosecutors.  We can only look at the criminal history and make the best decision possible based on the information we have.  Understanding some of these terms can help you more thoroughly analyze criminal histories. 

The good news is that a criminal history analysis should not include arrest records by themselves.  It’s the charges in the court and the final disposition that makes the difference.  So when a jurisdiction like Chicago passes a law that says we cannot use arrest records, it really is a moot point and not something to worry about.



About the Author

David Pickron has been a licensed private investigator for over 20 years, specializing in tenant screening for real estate investment owners and property management companies. His company, Rent Perfect, an Investigative Screening Company, helps clients onboard tenants from the initial background check to leasing and payment collection. You can learn more by visiting www.rentperfect.com or calling 1-877-922-2547.

Comments & Upvotes