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Pre-Arraignment Diversion

Under Massachusetts law there is a process to “divert” criminal cases from the criminal courts and resolve them without creation of a criminal record.

Under General Laws 276A many defendants in cases in the district courts of Massachusetts can qualify for a pre-arraignment diversion. This means the case is diverted from the criminal justice system before there is an official CORI record made. The criteria for eligibility for diversion are: 1) imprisonment may be imposed for the charged offenses; 2) the District Court may exercise final jurisdiction over the charged offenses; 3) the defendant has not previously been convicted of a crime; 4) the defendant does not have any outstanding criminal cases, warrants, etc.; and 5) that the defendant would benefit from participation in a program. If a defendant meets these criteria she may be diverted to a “program of community supervision and services.” There are certain crimes which are not eligible for pre-arraignment diversion, including crimes for which a term of imprisonment greater than five years can be imposed, crimes for which there is a mandatory minimum sentence, most crimes of violence, including assault and battery causing serious bodily injury, violations of restraining orders, many sex crimes, and certain crimes against public peace.

To request a diversion a defendant can, at her arraignment, ask for a two-week continuance to be evaluated by a program to see if she might be eligible for the diversion. After two weeks, the defendant returns to court, with a report from the program attesting to her eligibility and a plan for services. A that hearing the prosecution and any victim of the alleged crime can be heard on whether the defendant should be diverted, and the judge decides whether to issue the diversion. If the judge allows the diversion the criminal proceedings are stayed for 90 days while the defendant partakes in the diversionary program. After 90 days there is another hearing where the court considers the report of the diversionary program. If the defendant has completed the program, the judge can dismiss the case. If the program recommends an extension of the diversion, the judge has significant latitude to decide what to do: he or she can dismiss the case, extend the stay on proceedings to allow the defendant more time in the program, or resume the criminal case against the defendant.

The law also allows for pre-arraignment and pre-trial diversions of veterans. Unlike civilians, there is no limitation on the types of cases that can be diverted for veterans. In addition, veterans who qualify for assessment to see if a diversion would benefit them and who show signs of mental illness are required to be evaluated by a psychologist, psychiatrist, or physician who will write a report for the court to aid the court in deciding the petition for diversion.

General Laws chapter 119, § 54A provides a similar pre-arraignment diversion process for defendants in the juvenile courts.

We have had substantial success seeking pre-arraignment diversions for our clients in district courts in Massachusetts, ensuring that they have no record of any criminal charge being brought against them. We have represented clients facing potential charges of, for example, assault and battery and assault and battery with a dangerous weapon. We have assisted our clients in identifying appropriate diversionary programs, including volunteering with soup kitchens and participating in family therapy programs. We believe the opportunity for pre-arraignment diversion is a critical took for criminal defendants and their lawyers, and we are working to ensure that courts throughout the Commonwealth are aware of their ability to divert cases and give defendants a chance at resolving potential charges with no criminal record.

If you have a criminal case and are seeking an attorney, we encourage you to contact us at (617) 742-6020 to speak with an attorney.

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I contacted Zalkind Duncan & Bernstein Law in April 2018 to get help for my son on an education-related matter. We worked primarily with Zoraida Fernandez, an Associate, and when needed met with Ruth O'Meara-Costello, a Partner. Zoraida was excellent. The whole process was emotionally exhausting and depressing and Zoraida was the only bright light in all of it... Nancy O
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