A little known fact within the Massachusetts criminal justice system, is the potential for any criminal defendant to be put on pretrial probation in lieu of criminal charges. You read that right, any potential defendant.The relevant statute reads as follows:
The superior court, any district court and any juvenile court may place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper, with the defendant’s consent, before trial and before a plea of guilty, or in any case after a finding or verdict of guilty;
Therefore, in addition to stating that any person may be placed on probation, it also states that the terms of such probation to be those that it deems proper. This allows the court the flexibility to customize the terms based upon the individual case at hand. As you can imagine, however, the reality of actually securing a pretrial diversion in lieu of criminal charges depends upon a variety of factors. Most notably among these is the experience and persuasiveness of your defense attorney.
In practice, the pre-trial probation, which is technically referred to as pre-trial diversion, is a court approved agreement reached between the defendant and the prosecutor prior to trial or the entering a guilty plea. Therefore, if you enter a guilty plea prematurely, such as if you decide to forego the advice of counsel, you effectively waive your right to this potential option.
According to the terms of a pre-trial diversion agreement, the defendant is placed on probation under the care of a probation officer, either supervised or unsupervised, for a defined period of time, and according to certain agreed upon terms. Once the defendant successfully completes the probation term, the charges will be dismissed completely.
However, if the defendant violates any condition of his probation, the charges will not be dismissed, and the case will proceed normally. Meaning charges will be formally filed, and the defendant could face a trial, and potentially jail time. However, a defendant cannot be jailed for violating this pretrial probation, since technically, that individual has not been found guilty of anything yet. However, the court could then decide to hold a person without bail, if it so decides.