What is Judicial Diversion?

What is Judicial Diversion?

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Often, I am asked by friends, family members, or clients: “what is diversion?” So in case any of my readers have that question burning in their minds, this blog should sufficiently answer the question. I will illustrate with the following story.

So you get fresh and clean and head out for a Friday night of excitement and adventure.  You meet up with friends and have dinner; watch a movie, and then head to the “club” for a night and morning of dancing your heart out.  You’re minding your own business when someone spills their drink on your date on the dance-floor.  Your date pretends not to be offended but something on the inside of you is boiling about this time because the drunk on the dance floor has not even offered an apology for his ignorance.  You are trying to calm down but the Patron shots have made you a bit braver than normal and you decide to confront the drunken idiot on the dance floor.

Words get said; the drunk doesn’t listen; and somehow or another your fist is attacked by the face of the drunk and the dance-floor comes up to break the drunk’s fall and swaddle the drunk like the baby Jesus wrapped in the manger.  Here comes the law and they get the statements of witnesses and the witnesses say how wonderful of a stand up person you are; however, you are arrested and now a prosecution against you has commenced.  This is the first time you have ever been in trouble.

Well when you get to court, you find out that either your attorney has asked for or the district attorney has offered diversion in the matter and the attorney rightfully tells you this is a great deal because there are 4 eye witnesses to your fist gracefully putting the drunk to sleep while the D.J. spun the lullaby.   Or sometimes, the district attorney will not be amenable to such a disposition and it is up to the judge.  If this is the case, the judge will have to weigh some factors to determine if you are a good candidate or not for judicial diversion.

Judicial diversion is a process set up within the Tennessee Code Annotated which will allow for the judge to withhold entering a judgment in the case until the defendant (you) has met the conditions of a probationary period.  After set probationary period and if you have kept your temper in check and not committed any further crimes whatsoever; the bad night at the club can be erased from your history forever and the case will be dismissed against you.  However, there are some criteria you must meet: for instance, you basically could not have been in trouble and the analysis is a little more complicated than that but I don’t want this to turn boring.  So just stay out of any kind of trouble.  Next, your lack of criminal history has to be verified through the Tennessee Bureau of Investigations.

The judge has some factors the judge has to weigh and again without boring you I will keep them simple.  The factors are as follows:

  1. Your amenability to correction- this is the first thing the judge gets a gauge for because if you are not going to obey orders, probation and diversion are a waste of time;
  2. The circumstances of the offence you committed- as long as the events surrounding the crime are significantly heinous, you will be a good candidate for diversion;
  3. Your criminal record-again this needs to be a clean record;
  4. Your social history- your community involvement with good influences versus bad influences in a strong factor;
  5. Your physical and mental health- there may be an extreme illness or mental defect of some type which prompted you to wild out on the dance floor;
  6. The deterrence value to you and to others- will this be a lesson learned for you and others in the court room at the time of your hearings; and
  7. Whether judicial diversion will serve the ends of justice; the interests of the public as well as you- my guess is this a good catch all, most judges I’ve appeared before have glossed quickly over this factor.
These are called the Electroplating and Parker factors; State v. Electroplating, Inc., 990 S.W.2d 211 (Tenn. Crim. App. 1998) and State v. Parker, 932 S.W.2d 945 (Tenn. Crim. App. 1996). 
So if the judge feels like these factor weigh more in your favor than they do against you, the judge will grant you diversion and issue a stern warning not to violate your diversion.  If you catch a new charge, not only could your diversion be in jeopardy, so could your freedom.  I hope this was both entertaining and informative.  Please keep checking back for additional information.

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