Legal definition of a "criminal record"

Question

This news article starts with:

One in three Americans have a criminal record, according to the Bureau of Justice Statistics. Simply being arrested, even without a conviction, can lead to lifelong struggles...

which implies that being arrested, but not convicted, leads to a criminal record, at least in America.

On the other hand, the Wikipedia entry for 'Criminal Record' starts with:

A criminal record (not to be confused with a police record or arrest record) is a record of a person's criminal convictions history.

I'm interested to know if there's a technical legal definition of the term 'criminal record', in addition to any less-formal common usages, in any jurisdiction.

Answer 1

The word "criminal record" normally refers to convictions only. This is the definition used for most purposes, for example, for recidivist sentencing provisions in state and federal penal codes, and to determine the collateral effects of a criminal conviction (e.g. disqualification from voting).

But, it is also possible and common to obtain someone's "arrest record" and this can have negative consequences for someone even if they are never convicted of the crimes for which they are arrested.

The news article is worded in a confusing manner that conflates the two kinds of records, because the term "criminal record" is not used in a consistent manner. For example, the National Conference of State Legislatures website states:

Approximately 77 million Americans, or 1 in every 3 adults, have a criminal record. A criminal record—which can be an arrest record, criminal charges, or a conviction—creates barriers to jobs, occupational licensing, housing, and higher education opportunities.

The FBI apparently also includes arrest records in its definition, contrary to the common sense definition of the term, according to Politifact:

The FBI considers anyone who has been arrested on a felony charge to have a criminal record, even if the arrest did not lead to a conviction. The FBI only counts those with a misdemeanor if a state agency asks the bureau to keep it on file.

So by the FBI’s standard, 73.5 million people in the United States had a criminal record as of June 30. . . .

There is no federal data on the number of people with a criminal conviction living in the U.S.

The U.S. Bureau of Justice Statistics does have an estimate for how many people were under correctional supervision in 2015. The bureau reported 6.7 million adults either incarcerated or on parole or probation. That’s close to three out of every 100 adults.

Another source confirms this FBI practice:

According to a 2012 Department of Justice survey, state criminal history repositories contain more than 100 million records. These are popularly referred to as “rap sheets” or “criminal records” although most people who have them have never been convicted of a serious crime. These repositories chronicle nearly every arrest, regardless of whether or not it leads to an indictment or conviction. And while 100 million records do exist, this figure almost certainly overstates the true number of individuals who have been arrested at any point in their lives, since one person can have an arrest record in multiple states.

In an effort to make complete criminal histories easily accessible to all law enforcement agencies, the FBI maintains a database indexing these records known as the Interstate Identification Index (III). Whenever a suspected criminal is arrested and fingerprinted by a local, state, or federal law enforcement agency; those records are forwarded to the FBI to be included in the III. The FBI assigns each subject a unique identification number that indexes all state records existing for that person, meaning each number corresponds to a distinct individual.

As of July 1, 2015, more than 70 million people have records indexed by the III.

Answer 2

In the united-kingdom there are basically three relevant levels of criminal record. The legislation is a little different between England and Wales, Scotland, and Northern Ireland. The official terminology in the Police Act 1997 is:

1. "Criminal conviction certificate"
2. "Criminal record certificate"
3. "Enhanced criminal record certificate"

A "DBS check" (Disclosure and Barring Service), or the equivalent in other UK jurisdictions for obtaining somebody's criminal record, will include one of these - DBS calls them "basic", "standard", and "enhanced".

These are distinct from "all the stuff that the police knows about you": any particular police force or similar agency might have all sorts of records about you. But they represent the three tiers of what other people are able to find out, from the police records. The level of information available is scoped for the reason that it's needed, e.g. somebody wanting a job working with children would need the highest level check.

In essence, the basic level shows convictions that are not "spent" (long enough ago that they do not need to be disclosed). The standard level shows convictions, cautions and warnings, even from long ago. The enhanced level can additionally include police information that they deem to be relevant, such as an arrest that did not lead to a conviction, or other reasons why the person has come to the police's attention. For convictions, the certificate shows the title of the offence (e.g. "theft"), date, and sentence, but no real detail (e.g. what was stolen).

An individual can obtain more information from their own police records by making a Subject Access Request under data protection law. But it's illegal for a prospective employer to say "show us the results of your SAR or else you're not getting the job" - they have to go through the appropriate DBS channel.

Exceptionally, there may be other kinds of disclosure for national security vetting or the like. And while you can still ask MI5 for a copy of their file on you, such a request is unlikely to be successful.

Answer 3

germany

Any resident can request a copy of the Führungszeugnis for themselves. This is a redacted copy of the records on criminal convictions, acquittals by reason of mental incapacity, and some other legal decisions, see the BZRG. Convictions are getting redacted after a certain time, and there are some more or less obscure categories which are not exactly criminal in nature included in this record.

It is possible to see but not get the almost completely unredacted version for oneself. After a request, one would go to the local courthouse and look at it in their offices, but one may not copy it. This is so that nobody can be pressured into getting and showing the unredacted details.

For some jobs, the employer may demand that the prospective employee gets the redacted copy and presents it. Employers may not generally demand it, but if one candidate includes it and one does not, that may be prejudicial against the reticient candidate ...

A slightly extended version of the Führungszeugnis can be requested/issued when a person would work with children, e.g. in a sports club. This changes the reporting cutoff for sexual offenses.

Various authorities can demand a record with even fewer deletions. This would be transmitted directly between authorities, not handed to the subject of the record.

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It is possible to request information about ongoing criminal cases from the police. The police may redact their answer to protect ongoing investigations, so a blank answer does not really say anything. And for a complete answer, one would have to query all states. There were some scandals where one of the state police authorities forgot to mark a multi-state organized crime investigation as confidential, and they revealed the covert investigations by another state when the lawyer for a crime boss made these information requests.