Pre-trial diversion is an alternative to prosecution that diverts certain offenders from traditional criminal justice processing into a program of supervision. The offenders must acknowledge responsibility for their actions, but need not admit guilt.
See UNITED STATES ATTORNEY'S MANUAL, ch. 22, 9–22.400. “Participants who successfully complete the program will not be charged or, if charged, have the charges against them dismissed; unsuccessful participants are returned for prosecution.”
Id., 9–22.000. The Fifth Circuit has not addressed whether a pre-trial diversion agreement is a favorable termination of a criminal action for purposes of maintaining a malicious prosecution claim. Our brethren of the Second Circuit, however, have held that agreements of this nature preclude a
§ 1983 malicious prosecution claim.