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NCJRS Abstract

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NCJ Number: 81775 Find in a Library
Title: Legal Protections in Diversion of Juveniles
Author(s): T M Shakman
Corporate Author: University of Chicago
National Ctr for Assessment of Alternatives to Juvenile Justice Processing
United States of Amer
Project Director: C Shireman
Date Published: 1979
Page Count: 44
Sponsoring Agency: National Institute of Justice/
Rockville, MD 20849
University of Chicago
Chicago, IL 60637
Sale Source: National Institute of Justice/
NCJRS paper reproduction
Box 6000, Dept F
Rockville, MD 20849
United States of America
Document: PDF
Language: English
Country: United States of America
Annotation: This paper examines judicial decisions involving adult diversion programs for standards which might apply to juvenile court diversion and then discusses procedural protections that apply to juveniles in regular court processing in order to assess their relevance for juvenile diversion.
Abstract: Cases involving diversion of adults show a significant controversy in the law on diversion. One approach considers the decision to divert criminal defendants as a matter of prosecutor's discretion not subject to judicial supervision. Thus, it is unlikely that due process or equal protection rights would apply, and individual rights would probably be limited. A review of cases on diversion indicates that the prosecutor's discretion theory of diversion tends to apply where no rules exist to the contrary. Courts in California, Pennsylvania, and New Jersey have evolved a different approach by perceiving diversion as a judicial decision. Laws and court rulings in Pennsylvania and California leave the initiative with the prosecutor to recommend diversion but require a judicial hearing on whether to divert. New Jersey courts have established similar rules which afford diverted defendants some procedural protections. An examination of the preadjudicatory rights of juveniles in the context of diversion covers probable cause hearings, the privilege against self-incrimination, expungement of records, and the right to representation by counsel. The amount of social control exercised in diversion programs varies widely and should influence the perceived need for procedural protections. Safeguards are also important when the conditions of the decision make it likely that the defendant will accept diversion uncritically. A probable cause hearing should be held in all cases, and admission and confessions made during the diversion process should reach the trial court only if protected and voluntary. When more restraints are involved in the diversion program, the defendant also should have legal advice and protection against self-incrimination. Diversion of juveniles into voluntary or minimally restrictive programs could be done under the doctrine of prosecutor's discretion. Approximately 100 footnotes are included.
Index Term(s): Juvenile court diversion; Juvenile court procedures; Right to Due Process; Rights of the accused
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