3 Reasons to Be Careful About Admitting Guilt When Entering a Pretrial Diversion Program

          On July 12, 2008, I wrote an article on this website entitled "How to Get a Criminal Charge Dropped" in which I discussed Florida's pretrial intervention programs [PTI] that are authorized by Florida statutes sections 948.08 and 948.16.  In that article, I stated that "[s]uccessfully completing a PTI program is one way of getting a criminal charge dropped without having to go through the stress of a trial." 

          While that is undoubtedly true, one prerequisite for entering a pretrial diversion program in Florida frequently includes admitting in writing that one is guilty of the charge that one is accused of committing.  What difference does that make, you might ask, given the fact that the case will eventually be dropped by the prosecutor if the person entering the PTI program successfully completes it? 

          This article addresses that question by identifying three situations in which admitting guilt as part of entering a PTI program can have unforeseen and potentially disastrous consequences for the person who admits guilt.

          1.  The situation that I see arise most frequently involves those clients who have been offered an opportunity to enter and complete the PTI program but who are not yet United States' citizens. Immigrants such as these who admit that they have committed even minor criminal offenses can face various negative consequences including deportation. 

          When this situation arises, it is almost always a good idea to see if the prosecutor who is handling the case will agree to waive the requirement that the client admit guilt so that the client does not later face unintended immigration consequences.

          The New York City Bar Association has published an article entitled "The Immigration Consequences of Deferred Adjudication Programs in New York City."  Although this article pertains to New York City in particular, much of the information contained in it is applicable to Florida residents as well. 

          2.  The second situation involves those clients who are fearful that they will lose their jobs if their employers discover that they have admitted committing a crime.  This particular situation is addressed in the October 2008 issue of the The Florida Bar Journal in an article entitled "Diversion Programs:  PTI  . . .  Dismissal  . . .  Problem Solved . . . or Is It?"  The authors of this article, George E. Tragos and Peter A. Sartes, write that admitting guilt as part of entering a PTI program "has been known to cause problems with employers whose employee conduct manuals include language about accepting responsibility or guilt as a cause for termination." 

          One solution suggested by the authors is to try to get the prosecutor to waive the admission of guilt by providing the prosecutor with that portion of the client's employment manual which states that such an admission may result in the client being fired.

          3.  The third situation arises when a client violates one or more conditions of the PTI agreement.  What that happens, the client is removed from the PTI program and ordered to return to court to resolve his case.  If the client decides to resolve his case by proceeding to trial, it would seem that his prior admission of guilt when first entering the PTI program could be used against him at his trial.  Florida statute section 90.608 seems to state as much when it says that "[a]ny party, including the party calling the witness, may attack the credibility of a witness by: (1) Introducing statements of the witness which are inconsistent with the witness's present testimony."

          However, attorneys Tragos and Sartes, who were quoted above, disagree with this  conclusion when they write in their article that the "acceptance of guilt cannot be used as a confession or admission later should the intervention fail and the case reverts to prosecution . . . ."  The authors do not, however, cite any statutory or case law authority to support such a statement.