"Close Enough for Jazz Characterizing the Disposition of Criminal Cases in News Reports" by Robb Harvey and Kevin Elkins in Communications Lawyer 

February, 2019 - Robb S. Harvey, Kevin T. Elkins

The pressure of the 24/7 news cycle leaves media professionals with competing demands of getting the news out quickly and ensuring that the published/broadcast story is right. The “substantial truth” doctrine provides some comfort but is no guarantee against a lawsuit. This is especially the case in reporting about the disposition of criminal charges, where reporters are expected to appreciate the distinctions between various devices created by state legislatures that few lawyers can define. These include divining the niceties of, among others, convictions, guilty pleas, nolo contendere (no contest) pleas, “best interest” pleas, “Alford” pleas, “Kennedy” pleas (in West Virginia), “deferred convictions,” “judicial diversions,” and “deferred sentences.”

Criminal defendants frequently take offense to reporting—even accurate reporting—about their offenses. It is a short hop from criminal defendant to libel plaintiff. This article addresses some recent lawsuits in which a plaintiff asserted libel and other claims based upon a news outlet’s reporting of a “judicial diversion” or “deferred conviction” as a conviction based upon a determination of guilt.

Although the name and particulars differ from jurisdiction to jurisdiction, “deferred sentences,” “deferred convictions,” and “judicial diversions” are synonymous descriptions for the discretionary method by which a judge may choose to defer proceedings against a qualified defendant and place the individual on probation. Whether a criminal defendant qualifies for deferral depends upon applicable state statutes. In Tennessee, for example, individuals qualify for deferrals if they have been found guilty or plead guilty or nolo contendere to certain classes of felonies and misdemeanors.1 Upon the completion of a successful probationary period, the court dismisses the deferred charges, and the individual can petition the court for an order expunging all recordation relating to the person’s arrest, indictment or information, trial, finding of guilty, and dismissal and discharge.2 As such, judicial deferrals act as a “second-chance” opportunity for certain offenders.


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