Is a conditional discharge a conviction?

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ceereeus420
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Is a conditional discharge a conviction?

Postby ceereeus420 » Mon Feb 28, 2011 9:22 am

I recieved a conditional discharge in NJ for posession of marijuana a few years back. The question on an application's character and fitness is worded as follows:

Have you ever been convicted of or entered a plea of guilty or no contest to any violation of law other than minor traffic violations?

Do I have to disclose?

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barklm
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Re: Is a conditional discharge a conviction?

Postby barklm » Mon Feb 28, 2011 10:47 am

ceereeus420 wrote:I recieved a conditional discharge in NJ for posession of marijuana a few years back. The question on an application's character and fitness is worded as follows:

Have you ever been convicted of or entered a plea of guilty or no contest to any violation of law other than minor traffic violations?

Do I have to disclose?


My understanding of a conditional discharge is precisely as it sounds - if you abide by the agreement set out than after the allotted period of time the charges are dropped. If this occurred than I don't believe it counts as a conviction. If you violated the terms of your agreement, however, than yes - it would count and be part of your record.

Perhaps someone else could enlighten us further?

too old for this sh*
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Re: Is a conditional discharge a conviction?

Postby too old for this sh* » Mon Feb 28, 2011 10:49 am

As noted in another thread, it LIKELY is not a conviction but it IS a plea of guilty/no contest in most jurisdictions that was required in order to get the favorable treatment on disposition. And in the case of the language you have posted, it is not something that has to meet both prongs but is an EITHER/OR scenario.

CanadianWolf
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Re: Is a conditional discharge a conviction?

Postby CanadianWolf » Mon Feb 28, 2011 11:18 am

Depends upon your plea entered if you were not found guilty by a judge or jury after a hearing.

Some jurisdictions require a "not guilty" plea to be entered to enter into a "diversion program" or into "deferred adjudication", while other jurisdictions require a "guilty" or a "nolo" plea. Under the requirements posted in your original post, the answer may be different depending upon the jurisdiction & the way you got into the deferred adjudication option. Regardless, my best advice is to disclose, but you might be wise to discuss this with your attorney who handled your case.

If you want to handle this yourself, then how did you plead ?

P.S. In some states, the plea required to be eligible to enter into a "diversion program" vary from county to county. "Conditional discharges" seem to require a "guilty" or "nolo" plea in most jurisdictions, so disclosure is required under the terms of the application in question. Terminology may also differ by jurisdiction so you are likely to receive mixed or confusing advice on an open forum. You need to contact an attorney in the jurisdiction in which the offense & plea occurred to answer your specific question.
Last edited by CanadianWolf on Mon Feb 28, 2011 11:54 am, edited 3 times in total.

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ebo
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Re: Is a conditional discharge a conviction?

Postby ebo » Mon Feb 28, 2011 11:21 am

Just disclose it anyways. They won't care. Only way this can possibly hurt you is if you don't disclose it and it comes back to haunt you later with C&F

LSATclincher
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Re: Is a conditional discharge a conviction?

Postby LSATclincher » Mon Feb 28, 2011 2:35 pm

ebo wrote:Just disclose it anyways. They won't care. Only way this can possibly hurt you is if you don't disclose it and it comes back to haunt you later with C&F

Agreed. This is less than a dui, and they don't care about those.

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rdcws000
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Re: Is a conditional discharge a conviction?

Postby rdcws000 » Mon Feb 28, 2011 4:02 pm

LSATclincher wrote:
ebo wrote:Just disclose it anyways. They won't care. Only way this can possibly hurt you is if you don't disclose it and it comes back to haunt you later with C&F

Agreed. This is less than a dui, and they don't care about those.


YES. Don't even toy with the idea of getting all technical in what you do and don't have to report for C & F. Keep in mind, you have your school's requirements, and then you will likely have a state bar requirement down the road. The two must match, or you will have to explain to your school why you left something out, and "The state bar has tougher requirements than you did" will not work as an excuse.

You'll be amazed at how much can be forgiven if you disclose it, and equally amazed at how hard they will come down on you if you try to get sneaky and avoid disclosure.

ceereeus420
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Re: Is a conditional discharge a conviction?

Postby ceereeus420 » Tue Mar 01, 2011 1:32 pm

I appreciate the advice, and I will definitely disclose the conditional discharge. The comments in this thread make me wonder if I need to disclose anything else. I was arrested for a DUI which was immediately dismissed in court because I was not, in fact, operating a motor vehicle. Is it a good idea to disclose arrests like that, even though they were not directly asked about, or would I be releasing too much information for no reason?

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ebo
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Re: Is a conditional discharge a conviction?

Postby ebo » Tue Mar 01, 2011 2:50 pm

ceereeus420 wrote:I appreciate the advice, and I will definitely disclose the conditional discharge. The comments in this thread make me wonder if I need to disclose anything else. I was arrested for a DUI which was immediately dismissed in court because I was not, in fact, operating a motor vehicle. Is it a good idea to disclose arrests like that, even though they were not directly asked about, or would I be releasing too much information for no reason?

If the app only asks for convictions and you weren't convicted of anything, then I don't see any reason to disclose this charge. Some apps, however, ask if you've ever been charged with any violation of the law. In this instance, you would need to disclose this and explain that it was subsequently dismissed. Disclosing too much isn't going to hurt you, not disclosing something can really bite you in the ass down the road. In these situations, I think it's always better to be safe than sorry.

Denny
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Re: Is a conditional discharge a conviction?

Postby Denny » Tue Aug 02, 2011 5:52 pm

ceereeus420 wrote:I recieved a conditional discharge in NJ for posession of marijuana a few years back. The question on an application's character and fitness is worded as follows:

Have you ever been convicted of or entered a plea of guilty or no contest to any violation of law other than minor traffic violations?

Do I have to disclose?


NOT GUILTY (TRIAL)

I can't speak for US law, but under English law, which is unlikely to differ that much, a conditional discharge is a vitiation of guilt (found guilty on day of disposal, but set aside thereafter until proven that it should stand) not an absolute finding of guilt ongoing. The problem is not the sentence, therefore, but people's understanding of it - which is normally wrong because they don't know sentencing law very well. Even NACRO and many lawyers too who don't understand sentencing policy properly get it wrong too.

English sentencing policy is underpinned by law, and it is very clear in law that a CD is not a recorded conviction and this is very relevant if you were involved in a contested case (went to trial) and still lost because the Defence / Counsel did not challenge the prosecution's case well enough to get an acquittal, but the judge privately had some doubt on the defendent's personal culpability, or believed it was a one off or unusual situation unlikely to be repeated, which is not consistent with having a 'guilty' mind that requires penalty to set them on the road to being law abiding. That's what a CD is useful for: it's a sentence that gets around the perverse verdict problem, which judges would want to avoid and wouldn't do the defendent any good either if the Prosecution appeals and the Appeal is then upheld. A CD, at least, gives the defendent a chance to prove, over a set probationary period (1-3 years). whether they did or was likely to have had a 'guilty mind' for the charge meriting a CD. So any further charges during the court imposed probationary period (plea of guilt / finding of guilt) would not only be sentenced by the court in its own right; but the original CD offence would also be sentenced as well - this time to a recorded conviction - implying 'that you were guilty after all of that CD offence because you committed other crimes within a short space of time. Therefore, the Prosecution case did suggest actual culpability after all - whereas before it was in doubt or, at least, wasn't worth penalising implying a potential to commit crimes ongoing and posing a threat to society.

Therefore, in a contested case, a CD is an ideal sentence if someone has been framed and the defendent pleads not guilty as they should do. The CJS is not perfect and it's perfectly possible for a defendent to be acquitted when they are personally culpable of committing a crime; and it's just as feasible that they can be found 'guilty' to be convicted (or otherwise would be if there were no CD's) if they are innocent of committing the alleged offence.

So in answer to your question, for English law at least, the answer is NO. You definitely do not have to disclose whether you have a criminal conviction if you were handed a CD. Only recorded convictions (and when capable of and are unspent) need be declared' and the probationary period for a CD cannot be spent when it wasn't a recorded conviction in the first place. Only convictions are 'spent' if they are capable of being spent, that is. Not all are if they are for very serious custodial sentences. The 'finding of guilt' at trial resulting in a CD is strictly for the purposes of the law enforcement authorities and the courts (for repeat offences). For everyone else - including employers - you have no criminal record at all).

Although it is possible that emigrating or visiting another country (where the rules may differ) may need some explanation as to why you have a CD or if employers carry out advanced CRB checks or are exempt from limited questioning of criminal background under the ROO Act 1974. Not all countries treat the handing down of a CD in the same way but most jurisdictions will certainly not consider them a recorded conviction - but some may be worried about what the offence was for if it touches on something sensitive to them.

If you are ever compromised by employers, asking awkward background check questions, when you have a CD you can sue for discrimination if they have treated a CD as though it is an unspent conviction and sacked you for non disclosure. Again, this is grounded in law (see Patel -v- Crown). The whole point of flexible sentencing policy is to give ex-offenders a chance to rehabilitate and start afresh and get on with their lives. Not be hamstrung by lifelong millstone that makes it impossible to let go of their checkered past. That's why the recidivism rate is so high: too many people won't let ex-offenders get over their mistakes, and so they are forced to re-offend or are not sufficiently motivated to stay on the straight and narrow and get deeper and deeper into trouble. This can't be good for them; and it surely isn't good for society either.

NON CONTESTED CASES (GUILTY PLEA)

If you pleaded 'guilty' (the other half of the question above) and were given a CD, which can happen, although I am not sure why that is when a fine, absolute discharge, bind over is more appropriate for non contested cases, you probably would have to answer YES to the other half of that question). Having said that, you shouldn't be asked it in the first place (unless exemptions on questions posed apply as described) because even if you plead guilty a CD is still a vitiation of guilt in the same way as it is for a contested trial - again attracting no penalty based sentence unless the defendent re-offends within the court imposed set probationary period.

Frankly, unless you are exempt under the ROOA, it is never safe for anyone to ask background check questions over and above the usual and most typical 'have you any previous convictions? Any tag on questions that probe whether you have been processed by the CJS per se, irrespective of the sentencing outcome or police disposal not only implies that you are guilty by dint of your association with the CJS - before being found innocent or charges dropped - it implies that an acquittal is not worth the paper it's written on. This is constitutionally unsound, and questioners are leaving themselves wide open for civil action if discrimination results from honest replies of YES; or forced but unnecessary disclosure results in an applicant compromising their honesty to answer a form correctly as NO by not disclosing information that is no one else's business.
Last edited by Denny on Tue Aug 02, 2011 6:20 pm, edited 1 time in total.

dkt4
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Re: Is a conditional discharge a conviction?

Postby dkt4 » Tue Aug 02, 2011 6:18 pm

basically everything written about english law isn't applicable.

disclose the marijuana thing, and the DUI thing (if you didn't do anything, you didn't do anything).

Denny
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Re: Is a conditional discharge a conviction?

Postby Denny » Tue Aug 02, 2011 6:53 pm

ebo wrote:
ceereeus420 wrote:I appreciate the advice, and I will definitely disclose the conditional discharge. The comments in this thread make me wonder if I need to disclose anything else. I was arrested for a DUI which was immediately dismissed in court because I was not, in fact, operating a motor vehicle. Is it a good idea to disclose arrests like that, even though they were not directly asked about, or would I be releasing too much information for no reason?

Disclosing too much isn't going to hurt you, not disclosing something can really bite you in the ass down the road.


Can't agree with you at all. Disclosing too much can lead to irrational discrimination, otherwise why ask the question in the first place? If you say NO and an employer later claims you should have answered YES, they would have to prove that you lied rather than made an honest mistake.

Frankly, my inclination would be to say NO - but first find out what your own jurisdiction claims a CD is. I fail to see how it can mean anything other than a vitiation of guilt. After all, what has been discharged unless it is the finding of guilt? It can't just be the penalty, because there are numerous other police and court disposals that don't include the word 'discharge' - and are clearly on penalty. Cautions, Official Warnings, Bind Overs - all given for guilty pleas (or admissions of guilt if no charges) but don't merit additional penalty. That's why Absolute Discharges, again only given for guilty pleas, also results in a vitiation of guilt (it simply means 'being found guilty' on the day of disposal, but is 'set aside' thereafter for always). An AD can't be given in a contested case because it would make a mockery out of the purpose of prosecuting (vitiation of guilt and no penalty possible forever!! Why prosecute at all? That means only the police and courts need to consider you guilty of the offence you got an AD for.

Common sense really. Sentencing policy clearly bridges the gap between the purpose of the CJS - to convict the guilty and acquit the innocent and what can go wrong in practice to arrive at that outcome. A carefully handed down sentence can bridge those gaps whenever they occur. There are clearly weaknesses and abuses in the criminal justice system: irubbish defence lawyers, problems with disclosure, the strict rules of evidence and the peculiarities of the trial process - if witnesses lie or don't turn up etc. All of which can result in outcomes that don't result in convicting the guilty and finding the innocent not guilty as the CJS is supposed to do.

CanadianWolf
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Re: Is a conditional discharge a conviction?

Postby CanadianWolf » Tue Aug 02, 2011 7:01 pm

@Denny: This is not an employment situation, nor is it an English employment situation. The OP is applying to US law schools, after which OP must file character & fitness statements for each & every state bar taken. In my opinion, your rambling & slightly confusing responses are inaccurate in the OP's situation.

P.S. "Irrational discrimination", however, is a concept worth understanding. Many equate "discrimination" with illegality or wrongfulness. I certainly see reason for discriminating against blind pilots, for example.

CanadianWolf
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Re: Is a conditional discharge a conviction?

Postby CanadianWolf » Tue Aug 02, 2011 7:49 pm

@OP: Whether or not a "conditional discharge" is a conviction depends upon the jurisdiction. Typically, if you violate the conditions of a conditional discharge, then you are likely to receive a sentence for the underlying offense/activity that gave rise to the conditional discharge. Has your "conditional" discharge matured into an "absolute" discharge ?

With respect as to whether or not you should disclose, the answer is yes; but, however, whether or not you are required to disclose may depend upon the law in the jurisdiction in which the "conditional discharge" occurred & the facts & circumstances of your plea entered. Nevertheless, the safe answer is that you should disclose, in my opinion.

MumofCad
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Re: Is a conditional discharge a conviction?

Postby MumofCad » Wed Aug 03, 2011 4:51 pm

Disclose everything, always, period. If there is question, disclose it.

Perhaps its better to hear it straight from Admissions at Yale though:

http://blogs.law.yale.edu/blogs/admissi ... -fire.aspx

oregon000
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Re: Is a conditional discharge a conviction?

Postby oregon000 » Mon Sep 19, 2011 6:09 pm

I am reapplying to schools. Last cycle did not disclose a deferred adjudication ( for a minor traffic violation). I did not think it counted as a conviction. Of course now I would like to disclose it since apparently it is a conviction. Do you think they'll notice/care that it wasn't disclosed last year? Should I risk drawing attention to it with an addenda that essentially says "my bad'? How could I address it without seeming incompetent, or worse, dishonest?

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theadvancededit
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Re: Is a conditional discharge a conviction?

Postby theadvancededit » Tue Sep 20, 2011 1:54 pm

MumofCad wrote:Disclose everything, always, period. If there is question, disclose it.

Perhaps its better to hear it straight from Admissions at Yale though:

http://blogs.law.yale.edu/blogs/admissi ... -fire.aspx


This, this, this, this.

@oregon000, disclose it this time around, for sure. I can't imagine that they would compare this application to last cycle's but it's equally unimaginable that they would hold it against if you they did.

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Opie
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Re: Is a conditional discharge a conviction?

Postby Opie » Tue Sep 20, 2011 2:08 pm

I am so much more paranoid after having read that blog. I ALMOST wish I hadn't.
Research into my full record to commence immediately. Man it sucks being a non-trad in this situation.




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