Section 5 Assessment report; recommendations; final determination; stay of criminal proceedings
Section 5. Upon the expiration of a fourteen-day continuance granted pursuant to section three, the director of the program to which the defendant has been referred shall submit to the court a written report of its assessment. The report shall contain the information obtained through the program’s assessment, the program’s recommendation as to whether the defendant would benefit from diversion to the program, and a plan of services for the defendant if it has been determined that the defendant would so benefit.
The judge, upon receipt of the report, shall provide an opportunity for a recommendation by the prosecution regarding the diversion of the defendant. After receiving the report and having provided an opportunity for the prosecution to make its recommendation, the judge shall make a final determination as to the eligibility of the defendant for diversion to the program. The criminal proceedings of a defendant who qualifies for diversions under section two and who agrees to abide by the terms and conditions contained in the plan of services approved by the judge, shall be stayed for a period of ninety days, unless the judge in his discretion considers that the interest of justice would best be served by a hearing of the facts, after which the case may be continued without a finding for ninety days. No appeal shall be allowed from such final determination.
A defendant who has been determined to be ineligible by reason of his failure to satisfy certain provisions of section two, but who, in the judge’s discretion, received a fourteen-day continuance for assessment, may, on the basis of the report submitted by a program, be granted a like stay of proceedings.
In no event shall a stay of proceedings be granted pursuant to this section unless the defendant consents in writing to the terms and conditions of the stay of proceedings and knowingly executes a waiver of his right to a speedy trial on a form approved by the chief justice of the district courts, and, in Boston, the chief justice of the municipal court of the city of Boston. Such consent shall be with the advice of defendant’s counsel. Any request for assessment, or a decision by the defendant not to enter such a program, or a determination by the program that the defendant would not benefit from it, or any statement made by the defendant during the course of assessment, shall not be admissible against the defendant in any criminal proceedings; nor shall any consent by the defendant to the stay of proceedings or any act done or statement made in fulfillment of the terms and conditions of such stay of proceedings be admissible as an admission, implied or otherwise, against the defendant, should the stay of proceedings be terminated and criminal proceedings resumed on the original charge or charges. No statement or other disclosure or records thereof made by a defendant during the course of assessment or during the stay of proceedings shall be disclosed at any time to a prosecutor or other law enforcement officer in connection with the charge or charges pending against said defendant or any co-defendant.