In setting up a new diversion program, a prosecutor’s office should clearly define the legal outcomes of a successful completion of the program’s requirements. Outcomes may include dismissal or nolle pros of charges, a decision to not file charges, and case expungement or sealing. Programs may include different outcomes for different types of offenders or offences.  For example, one outcome may be offered to first-time offenders, while a different option may be offered to offenders with a previous criminal history. Outcomes should be clearly communicated to participants before they enter into the program.

Legal Outcomes of Prosecutor-Led Diversion

Once the legal outcome of participation in a diversion program have been resolved, different expungement and records sealing paths are dictated.  Possible expungement routes include:

If the diversion was successfully completed, court and prosecution records may be:

  • Expunged or sealed automatically with case closure
  • Expunged or sealed upon request
  • Expungement or sealed through subsequent action by the participant
  • Expunged or sealed consistent with existing practice and/or statutory authority

If a diversion was not successfully completed, records expungement and sealing is subject to the existing practice and/or statutory authority.

Police records are subject to whatever rules for disclosure exist.

Prosecutors should carefully examine their existing statutes and case law to determine the appropriate path to accomplishing records sealing or expungement in appropriate cases.  Criminal records privacy, non-conviction data, public disclosure obligations, and potential Brady obligations may be implicated.