Pretrial Diversion and Deferred Adjudication

The programs that let an eligible defendant avoid a conviction by completing conditions - treatment, classes, community service, restitution - after which the charge is dismissed; the difference between diversion before a plea and deferred adjudication after one, and what each does to the record.

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What it means

Diversion is the prosecutor's or the court's agreement to suspend a prosecution while the defendant completes a program, and to dismiss the charge on completion. Pretrial diversion, in its purest form, requires no plea: the defendant signs an agreement, often waiving the speedy-trial clock and sometimes admitting the facts, completes the conditions over a period the agreement sets, and the case is dismissed as though it had not been filed. It is typically offered for first-time, non-violent offenses - drug possession, shoplifting, minor assault, some driving offenses - and eligibility is set by statute, by the prosecutor's office policy, or by the court. Specialized versions run through drug courts, mental-health courts and veterans' courts, which supervise intensively and dismiss on graduation.

Deferred adjudication, known in some states as a deferred judgment, deferred sentence, probation before judgment or conditional discharge, works differently: the defendant pleads guilty or no contest, the court accepts the plea but does not enter a judgment of conviction, and places the defendant on probation-like conditions. On successful completion the plea is withdrawn and the charge dismissed; on failure the court enters the conviction on the existing plea and sentences, without a trial. The plea already on file is the leverage, and it is why the consequences of failing are heavier than in pretrial diversion.

What a dismissal after diversion or deferral does to the record varies. In some states it leaves an arrest and case record that must be separately sealed or expunged; in others the statute seals it automatically; in almost all, the plea or the participation may still be used for some purposes - enhancement of a later offense, licensing, immigration, and federal law, which treats a plea plus any restraint on liberty as a conviction regardless of the state's label. A defendant offered either should know the completion terms, whether the case is dismissed automatically or on motion, what the record will show, and who can see it.

Where this comes from

When people hire a lawyer for this

A diversion offer is often the most favorable outcome available, and a lawyer's value is in the terms rather than the yes: whether an admission of facts is required and can be used later, whether the record will be sealed and when, what happens on a missed class or a failed test, and - for anyone who is not a United States citizen - whether the form of the program creates a conviction under federal immigration law even though the state calls it a dismissal. A defendant who has already failed a condition should contact the lawyer before the review hearing, because the remedies for a first slip are usually negotiable and the alternative is the conviction.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• ArraignmentThe first court appearance in a criminal case, where the charges are read and a plea is entered.
• Bail and Pretrial ReleaseThe decision about whether someone stays in custody while their case is pending - which is about appearance and safety, not about guilt.
• Bench Warrant and Failure to AppearThe arrest warrant a judge issues from the bench when a defendant misses a court date or violates a court order - what it authorizes, the separate failure-to-appear charge and bond forfeiture that often follow, and how a person clears one by surrendering on their own terms rather than being picked up.
• Criminal RestitutionThe order, entered at sentencing, requiring a defendant to repay the victim's losses caused by the offense - what losses it covers, how it differs from a fine and from a civil judgment, the payment schedule and enforcement, and why it survives bankruptcy and the end of the sentence.
• Double JeopardyThe constitutional bar on being tried twice for the same offense after an acquittal or conviction, or punished twice for it - when jeopardy attaches, what counts as the "same offense", the mistrial and appeal exceptions, and why a state and the federal government may each prosecute the same act.
• Expungement and Record SealingCourt processes that erase or restrict access to a criminal record, available only in defined circumstances that vary by state.
• Felony and MisdemeanorThe basic division of criminal offenses by seriousness - which drives the procedure, the possible sentence, and the consequences that outlast it.
• Grand Jury and IndictmentA closed proceeding in which citizens decide whether there is enough evidence to charge someone - not whether they are guilty.
• Miranda RightsThe warning police must give before questioning someone in custody - and the reason a missing warning suppresses a statement rather than ending a case.
• Motion to Suppress (Exclusionary Rule)The pretrial request to keep evidence out of a criminal trial because it was obtained in violation of the Constitution - an unlawful search, an involuntary or un-warned confession, a suggestive identification - the hearing it triggers, the "fruit of the poisonous tree" rule, and the exceptions that let evidence in anyway.
• Plea BargainAn agreement resolving a criminal case by guilty plea, usually in exchange for reduced charges or a sentencing concession.
• Preliminary HearingAn early court hearing at which a judge decides whether there is enough evidence for a case to proceed - the defense's first real look at it.
• Probable CauseThe level of justification the Fourth Amendment requires before police may arrest someone or search a place - more than a hunch, and less than proof.
• Probation and Parole ViolationWhat happens when someone under supervision is said to have broken its conditions - a proceeding with fewer protections than the trial that preceded it.
• Right to a Speedy TrialThe constitutional guarantee that a criminal case be brought to trial without unreasonable delay, and the statutes in the federal system and most states that put a clock on it - what starts the clock, what stops it, why a defendant's own motions extend it, and the remedy of dismissal when it runs out.
• Right to Counsel and the Public DefenderThe Sixth Amendment right to a lawyer in a criminal case, including one paid for by the state if the defendant cannot afford one.
• Search WarrantA judge's written authorization to search a specified place for specified things - and the exceptions that let police search without one are broad.
• Self-Defense and JustificationThe defense that a use of force was lawful because it was necessary to protect oneself or another from imminent unlawful force - the reasonableness and proportionality requirements, the duty-to-retreat and stand-your-ground split among the states, the castle doctrine, and who bears the burden once the defense is raised.
• Sentencing and EnhancementsHow a criminal sentence is decided after a plea or verdict - the statutory range, the guidelines or presumptive scheme the jurisdiction uses, the enhancements for prior convictions, weapons, victims and quantities that raise it, the presentence report, and the constitutional rule that any fact raising the maximum must be found by a jury.

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