Ivey Files

November 12, 2009

Disclosing Criminal Issues in Your Application: Useful Terminology and FAQs

In a previous post we discussed the general rules to follow when assessing when and how to disclose a criminal issue in your background. Even with those rules in mind, however, you might find yourself struggling with how to answer a "disclosure" question on an application (whether college, law school, business school, etc.) because you aren't familiar with the terminology.

Criminal disclosure questions often include terms that may seem familiar to you, but have specific meaning in the context of an application (e.g., arrest, charge, adjudication, conviction, "no contest," expunge, etc.).

When you are being asked to disclose information as part of your application, it is your responsibility to know which terms apply to your situation and whether disclosure is required. You may feel comfortable remaining blissfully ignorant now (after all, if you don't know what the terms mean, how can you be held accountable if you make a mistake?), but as we discussed in the previous post the repercussions of a "mistake" in your disclosure can be far reaching.

The best way to guarantee that you are fully informed before answering a disclosure question is to speak to an attorney who practices criminal law in the jurisdiction where your incident took place. Then, and only then, can you be certain how to classify your situation before answering the application question. The descriptions below should not in any way be taken as legal advice. Instead, they provide a general overview of the terminology you might find on applications, a basic glossary to consider before you seek further assistance in addressing your concerns.

Was I Charged with a Crime?

Applications may ask if you have ever been "arrested, cited, or charged with any criminal violation." Generally speaking, a charge is a formal accusation of a crime. A charge is usually brought by way of some "charging document." Charging documents include criminal complaints, indictments, or an information. It is not essential that you know the definitions of complaint, indictment or information. The important thing to determine is whether one of these documents was ever filed accusing you of a crime.

The best way to determine this is to order any paperwork related to your criminal case. In most states you have a right to order your criminal record (it may cost you a little bit of money and it's possible that you will have to appear in person to receive the copy). You can also request copies of the court file (sometimes called a "docket") relating to your case. This can sometimes become more complicated if the incident took place when you were a minor. Once you have gathered all of the paperwork you can consult with an attorney to see if there is a charging document accusing you of a crime.

For the vast majority of applicants, the information and indictment will be inapplicable. That is, few applicants will have been charged with a crime by an information or indicted by a grand jury for a criminal offense. If this happened to you, chances are that you are well aware of the circumstances of your case.

For most applicants who have a criminal disclosure issue, the criminal charge will come by way of a "complaint." A complaint is a document that someone files accusing you -- literally "complaining" -- that you have violated the law in some way. Police officers usually apply for complaints, thus you may see a police report filed among court papers in your case or attached to an application for a criminal complaint.

But civilians may also apply for a criminal complaint. This is important to remember because it is possible that you were "charged" with a crime even if you were never arrested.

If you were charged with a crime, it is possible that you were "arraigned" on the charge. An arraignment is a formal proceeding in court where the charges are read aloud (or presented to you in hand), you enter a plea of guilty or not guilty, and bail (if applicable) is argued. You may also be appointed an attorney or asked to hire one yourself. If you recall going through this process in front of a judge or magistrate then chances are you were charged with a crime.

It is also possible, however, that you were charged with a crime but did not have to appear in court. In some jurisdictions, a person can have an attorney appear on his or her behalf to respond to a criminal charge. Thus even if you never appeared in court to enter a plea or to have charges read to you, you may have been charged with a crime.

FAQ about Being Charged With a Crime:

1. Can I be charged with a crime without being arrested? YES. The police or a civilian can accuse you of a crime and file a criminal charge against you even if you were never arrested.

2. If I receive a ticket from a police officer is that a criminal charge? MAYBE. Police can give you a ticket for some offenses and then file documents afterward that accuse you of a criminal offense. It is important to request all paperwork related to your incident in order to determine what happened. For example, you may be pulled over and given a citation from a police officer and then later have charges filed against you relating to your driving in that case.

3. If the case was dismissed when I first went to court was I still charged? MAYBE. It's possible that you had your case dismissed when you first appeared in court either by agreeing to some minor punishment (dismissal in exchange for community service, for example) or because the attorney convinced the prosecutor or the court that the case should be dismissed. But it is possible that you were formally charged with the crime and then the charges were dismissed; this may still count as being "charged" for purposes of the application question.

4. My case was "expunged" - doesn't that mean I was never charged? NO. Whether you were charged has little to do with the outcome of the case. Even if the matter was dismissed, expunged, or sealed, it is possible that you were still "charged" with a criminal offense. For more on this see the section below on "sealed" or "expunged" cases.

5. A spouse / family member / significant other had me arrested and then "dropped the charges" in court before anything happened. Was I charged with a crime? MAYBE. The actions of your spouse / family member / significant other regarding the resolution of the case are irrelevant. If a charge was brought against you by an acquaintance, the police, or some other authority - even if the charges were "dropped" or the party "refused to press charges" later on - it's possible that you were still charged with a crime.

Was I Arrested?

For most people, a formal arrest is an event that sticks in their mind and requires no further explanation. In some cases, however, confusion, intoxication, or the complexity of a situation will leave someone uncertain as to whether he was arrested.

An arrest is a seizure - usually by police officers - that is often accompanied by a prolonged detention and/or the filing of criminal charges. The stereotypical arrest involves the use of handcuffs, verbal warnings about an individual's rights, traveling to a police station or some other detention facility, and often a post-arrest processing (booking). There are other types of detentions that may apply to law school applicants, and it's important once again to research your particular situation to figure out if you were actually arrested.

FAQ about Being Arrested:

1. I was never put in handcuffs - was I still arrested? MAYBE. Police can arrest you without handcuffing you (for your safety, for health reasons, etc.) so don't assume you were not arrested just because you were not handcuffed.

2. I was handcuffed - does that mean I was arrested? MAYBE. Police can handcuff you for a number of reasons. Just because you were handcuffed does not mean you were necessarily arrested (although you might also have been arrested).

3. I was handcuffed, brought to jail, fingerprinted, and booked - but then they dismissed the charges. That's not an arrest, is it? MAYBE. That situation has all the hallmarks of an arrest; whether you were charged with a crime has nothing to do with whether you were arrested.

4. I was drunk and was brought to the police station overnight to sober up - is that an arrest? MAYBE. Some law enforcement agencies will place people in what's called "protective custody," an event that involves detention by the authorities without the additional characteristics of an arrest (handcuffing, reading of rights, booking, etc.). However, in some cases police do make a formal arrest in order to place you in some form of temporary detention. If you believe you fall into this category, consult with an attorney to determine how to classify your situation.

5. I was caught by store security for stealing and then police came and took my information before releasing me. Was I arrested? MAYBE. Store security can effect an arrest and often assist law enforcement authorities with formal arrests. If you believe you fall into this category, consult with an attorney to determine how to classify your situation.

6. I was handcuffed, brought to the police station, fingerprinted, and booked - but no one ever said "you're under arrest." Was I arrested? MAYBE. There are no magic words that indicate an arrest. While most arrests include a police officer telling you what's happening, you can still be arrested even if no one says the word "arrest."

Was I Convicted or did I Plead "Nolo Contendere," "No Contest," "Admit to Sufficient Facts," or "Adjournment in Contemplation of Dismissal"?

Some disclosure questions will ask if you have ever been "convicted of a criminal offense." What is a conviction?

A conviction is a finding (or judgment) by a judge or jury that a person is guilty of a particular crime or charge. This judgment can come by way of a plea of guilty or a finding after a trial. If you'd stood trial as a defendant in a criminal case, it's a good bet that you had legal counsel, know the outcome of the case, and remember the details of the event.

For most applicants, the issue of criminal convictions arises if they have been charged with a criminal offense and resolved the case in some way short of going to trial or pleading and being found guilty. While some applicants may have plead guilty to a criminal offense (and therefore were "convicted" of the charge), a number of applicants have resolved a criminal matter by some other method that involves a combination of punishment and a partial admission of responsibility.

The nature and circumstances of those resolutions varies considerably among states. Pleas can include:

  • "Continuance Without a Finding" (aka CWOF or "admission to sufficient facts")
  • "Nolo Contendere" (aka "no contest plea")
  • "Adjournment in Contemplation of Dismissal" (aka "ACOD," "pre-trial diversion," "pre-trial probation," or "Probation before Judgment")


Each of the terms above involves a different set of circumstances and is defined by the law of the state where the incident took place. In some cases, such as a plea to "sufficient facts," the defendant must make an admission or acknowledgment before the court that he has done something wrong. In other cases, including some forms of pre-trial diversion or probation, no such admission is required.

These types of adjudications often involve a nominal punishment of some kind, including a fine, a diversion program (most often for driving offenses or incidents involving alcohol or drugs), community service, or a probationary period.

Applicants are often confused or ill-informed about what these terms mean. Because the terms vary so much among jurisdictions, you should gather the relevant documents from your case and seek legal advice about how to classify your situation.

FAQ about Convictions, Probation, and Pre-Trial Diversion:

1. My lawyer told me that if I admitted what happened and did community service, the case would get dismissed. Is that a conviction? MAYBE. In most cases, if a charge was dismissed then there is not a conviction for that charge. However, in some cases a person can admit to doing something, sustain a conviction, and be placed on a period of probation, after which the case is dismissed. Depending on the jurisdiction, this can amount to a conviction. You should consult an attorney if you admitted to wrongdoing as part of your case.

2. I was given pre-trial diversion and stayed out of trouble for some period of time. I was not punished in any way (no community service, no fine, etc.). Is this considered probation? MAYBE. Being placed on pre-trial diversion, pre-trial probation, or some period of supervision - without more, such as an admission of guilt or responsibility - is usually not considered probation. However, these pre-trial diversion programs may qualify as "probation" in the jurisdiction where the incident took place. You should read the paperwork from your case very carefully and then consult with an attorney to see if your situation qualified as "probation" in that jurisdiction.

3. I don't remember what happened in my case but I know it was eventually dismissed and my attorney said it would never appear on my record. So I was never put on probation, right? MAYBE. Just because a case ended in dismissal does not mean that you avoided probation. In some jurisdictions, a case can be continued, deferred, or stayed for a period of time, after which the case is dismissed. However, the period during which the case was continued or stayed may qualify as a probationary period. The laws of each jurisdiction determine whether this period of adjournment or continuation was considered "probation," so once again, you should receive legal advice if you have a question about classifying your case.

My Case was Sealed / My Case was Expunged

Many jurisdictions have a process for "sealing" a criminal record, an act that closes the criminal record from public view unless it is sought by a court order. In other places a record can be expunged from the public rolls. This is considered more permanent than "sealing" a record, and has the effect of eliminating or eradicating the record (with a few exceptions).

Sealing or expunging a record is usually done by either (1) the passage of time or (2) a motion or request by someone made before a court or magistrate. The laws of each jurisdiction determine if, and how, records are sealed or expunged in that jurisdiction. For some jurisdictions, juvenile cases are expunged after a set period of time, such as when the defendant reaches the age of 18. In other cases, a person can move to seal his or her record after a set number of years passes from the date the case concluded.

There is great confusion surrounding the notion of sealing or expunging a record, and many people believe - incorrectly - that if their case resulted in something short of a conviction, it was automatically sealed or expunged. Unless you have a document from a court indicating that your case was sealed or expunged, you should assume that neither applies to your case. Expungement and sealing of a record is not the default status for a case that has been concluded (even if the charges were dismissed).

Even if your case was sealed or expunged, you may still have to disclose the incident on your application (and, for future lawyers, for admission to a state bar). Sealing or expunging a criminal case can prevent it from appearing on a standard criminal record check, but by applying to school you likely waive any protection of that information because you agree to be honest on your application.

FAQs about Sealed / Expunged Cases

1. My case was dismissed prior to trial in exchange for 20 hours of community service, so my case was expunged, right? MAYBE . The outcome of a case (in terms of guilt or innocence, or the disposition of the case) has little effect on whether the case is expunged or sealed.

2. My case happened when I was a 14-year old kid, so it's sealed now because it's a juvenile case, right? MAYBE. The sealing or expungement of juvenile records varies from state to state. Do not assume that a juvenile case is automatically sealed. Order your paperwork from the case and consult with an attorney from the jurisdiction where the case took place.

3. I was on probation, but my attorney said that if I didn't get into trouble again I would not have "a criminal record" - so I don't have to disclose anything at all? MAYBE. A "criminal record" is a general team that has many meanings. You can have a "criminal record" even if you've never been convicted of a crime (but have been arrested and charged with one). Law enforcement and the courts have records of prior arrests and criminal charges, even if the person was not convicted. This would be the broadest definition of a "criminal record."

The term could also be interpreted to mean that unless a person was convicted of a crime, he has no criminal record. Under that narrower definition, you might not have a "criminal record," and you would need to get clarification on what, exactly, the application is asking for.

However, few schools will ask if you have a "criminal record." Instead, they'll be much more specific in the inquiry, asking about arrests, charges, convictions, etc. Instead of guessing about which definition is being used by the school and whether you have a "criminal record," read the instructions on the disclosure question very carefully and consult an attorney if necessary.

 

Gregory Henning is a graduate of Harvard College and the University of Virginia Law School. After graduating from law school, he clerked for Judge R. Lanier Anderson of the United States Court of Appeals for the Eleventh Circuit and then became an Assistant District Attorney in Boston. As part of the Ivey Consulting team, Greg works with law school applicants. (Note that in this capacity, and on this blog, he dispenses admissions advice, not legal advice. If you need legal advice, do seek legal counsel. Do not confuse Greg or this blog or Ivey Consulting with legal counsel.)

 

I'm applying to law school. As an undergraduate, I was caught by school campus safety officers for underage drinking and and smoking marijuana (twice). No police were involved. The school I went to handles incidents like these internally, and nothing happened to me except a warning that if I got caught while on "social probation," they could consider punishment--like suspension. Nothing happened. Do I have to disclose this on my application? If I do, how much will it hurt my chances of admission? If I don't, will I have a problem with the bar ethics exam down the road? Do law schools routinely ask an undergraduate school for the social record of a candidate if that student has not disclosed any such issues?
Thank you.

I have a question- I was charged with a misdemeanor and the charges were dropped upon my first appearance in court. Now I am applying for a job that requires a background check. My question is, that if the charges were dismissed does that still mean that I am considered to have committed the crime?