NCJ Number
52060
Journal
Indiana Law Journal Volume: 50 Issue: 4 Dated: (1975) Pages: 783-807
Date Published
1974
Length
25 pages
Annotation
THE LEGALITY OF PRETRIAL DIVERSION IS EXPLORED, AND A DIVERSION MODEL THAT SOLVES CONSTITUTIONAL PROBLEMS ASSOCIATED WITH INTAKE PROCEDURES IN EXISTING DIVERSION PROGRAMS IS PROPOSED FOR INDIANA.
Abstract
THE DISCUSSION OPENS WITH A REVIEW OF THE GOALS AND BENEFITS OF PRETRIAL DIVERSION, THE HISTORY OF DIVERSION, AND DIVERSION PROCESSES. A DIAGRAM ILLUSTRATING THE STAGES OF THE CRIMINAL PROCESS AT WHICH DIVERSION OCCURS IN VARIOUS PROGRAMS IS PRESENTED. IT IS POINTED OUT THAT EARLY DIVERSION FROM THE CRIMINAL PROCESS BYPASSES THE CONSTITUTIONAL PROTECTIONS THAT NORMALLY COME INTO PLAY AT LATER STAGES OF THE PROCESS. TO PREVENT DIVERSION OF THE INNOCENT AND TO PROTECT THE INTEGRITY OF THE DIVERSION CONCEPT, TRADITIONAL CONSTITUTIONAL SAFEGUARDS FOR THE ACCUSED MUST BE INCORPORATED INTO DIVERSION PROCEDURES. IN THE PROPOSED MODEL DIVERSION PROGRAM, INTAKE IS POSTPONED UNTIL THE ACCUSED HAS BEEN INFORMED OF THE CHARGE, COUNSEL HAS BEEN RETAINED OR APPOINTED AND GIVEN ADEQUATE TIME TO ASSESS THE CASE, AND A JUDICIAL HEARING HAS BEEN HELD. AT THE HEARING, THE ACCUSED, HIS OR HER COUNSEL, THE PROSECUTOR, AND POSSIBLY WITNESSES ARE PRESENT, AND THE JUDGE MUST MAKE THREE DETERMINATIONS: (1) WHETHER THE ACCUSED IS A FIT SUBJECT FOR COMMUNITY-BASED REHABILITATION; (2) WHETHER THERE IS PROBABLE CAUSE TO BELIEVE THE ACCUSED COMMITTED THE CRIME CHARGED; AND (3) WHETHER THE ACCUSED VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY AGREES TO THE CONDITIONS OF DIVERSION AND WAIVES THE RIGHT TO A SPEEDY TRIAL. IT IS SUGGESTED THAT IMPLEMENTATION OF A MODEL DIVERSION PROCEDURE IN INDIANA BE CARRIED OUT BY PROMULGATION OF RULES OF COURT OR BY LEGISLATION, AND THAT THE RULES OR STATUTE ALLOW THE PROSECUTOR DISCRETION TO RECOMMEND DIVERSION TO THE COURT ON A CASE-BY-CASE BASIS. (AUTHOR ABSTRACT MODIFIED)