People v. Hana

443 Mich 202 202 v HANA

PEOPLE 9). (Calendar 1, Argued April No. Decided 1993 Docket No. 94268. Supreme by August Court of the denied the 1993. Certiorari — (1994). 22, 1994, February US 510 United States on minor, Hana, iá-year-old charged in the Ma- B. 16 was Kafan a grams possession with of more than comb Probate Court cocaine, grams delivery less of more than but than cocaine, felony, conspiracy to a minor to commit a and induce prosecutor bribery public The moved for waiver official. a try Circuit the defendant to the Macomb court, hearing, E. a Robert an adult. After bifurcated J., probable Spier, cause to believe that there was concluded jurisdic- and waived committéd crimes defendant court, Bruff, J., B. concluded that there The circuit John tion. trial, Following ample support waiver. evidence charged, jury a convicted crimes defendant was Balkwill, P.J., Appeals, Hood, The Court of and Frederick D. J. J., part dissenting concurring in Sawyer, (Fitzgerald, J. curiam, opinion per part), unpublished in an hold- reversed pro- ing applicable in criminal the constitutional hearing ceedings dispositional phase of waiver extend to 119792). (Docket people appeal. No. The opinion by joined Riley, Brickley, In an Justices Justice Boyle, Griffin, Mallett, Court held: legislative purpose underpinnings of the Probate disposi- at the mandate that court’s discretion Code hearing unfettered eviden- tional of a waiver remains References 2d, Dependent Delinquent and Juvenile Courts and Chil- Am Jur 34, 38, 44-48. dren §§ proceedings. Applicability jeopardy double court 234. ALR4th proceedings. Right appointment to and of counsel in court 60 ALR2d 691. delinquency proceedings. Right jury trial 1241. ALR2d requirements under Federal Constitution Procedural delinquency proceedings 25 L Ed 2d 950. cases. —federal v Hana requirements recognized already tiary in criminal hearing. adjudicative phase of a waiver extended governed by justice procedures are statute and 1. Juvenile whether court rule. The to determine jurisdiction juvenile waived and the of a offender should be separate juvenile two tried as an adult in circuit court involves 27.3178(598.4) 712A.4; proceedings, by MSA as mandated MCL 5.950(B). i, phase adjudicative phase, determines and MCR The exists; probable suspect the defendant the whether cause to ii, dispositional phase, phase waiver to an determines whether evidentiary require- appropriate. The adult criminal court is legally phase Only differ. admissible evidence ments for each i; Michigan may phase in Rules of Evidence do not be used purposes apply phase appropriate ii. The standard for of a juvenile phase hearing is the interests of the and the whether ii short, granting public be served the waiver. In would best underlying phase requires public policy n relaxed eviden- investigation. tiary standards so as to ensure a full case, pur- Appeals 2. misconstrued the In this the Court of hearing underpinnings pose phase n of and the the waiver panoply The full of constitutionad the Juvenile Code. apply provided by the Fifth and Sixth Amendments does not i, concerning phase phase ii. The statutes and court rules when Thus, applied, appropriate protection. properly afford because alleged introduced none of the confessions or admissions were adjudicative phase hearing, was no at the of the waiver there alleged state- constitutional violation. Use of the defendant’s phase police psychologist at the ments to the court ii provisions. hearing any constitutional did not violate Reversed and remanded. dissenting, Levin, joined by Justice Cavanagh, Chief Justice may it is neces- that while there be instances which stated offenders, sary jurisdiction to waive over certain being cannot characterized as consistent decision to waive be underlying system. philosophy

with the reality, is not a the decision to waive rehabilitate, but, rather, punish one to decision to Thus, upon juvenile should be afforded the conviction. protections judicial proceed- process waiver traditional due ings enjoyed adults accused of crime. — n Hearings — — Waiver Probate Court Criminal Law Juveniles Dispositional — Phase. protections provided panoply the Fifth and Sixth The full apply not Constitution does Amendments of the United States 443 Mich Opinion op the Court (MCL dispositional 5.950[B]). 712A.4; 27.3178[598.4], MCR MSA Attorney Kelley, General, L. Thomas J. Frank Marlinga, Pros- Casey, General, Carl J. Solicitor Appel- Attorney, ecuting Berlin, Chief Robert J. Lawyer, Davis, Prosecut- Assistant Linda late people. ing Attorney, (Carole Kriger M. A. Mark H. Fink and Neil counsel), Stanyar, for the defendant. requires an us to consider case J. This

Riley, issues and constitutional mix of factual intricate pursu- juveniles surrounding procedures for provisions Code1 and the Probate ant primary ques- Michigan Court Rules.2 related protections panoply of the full tion is whether provided by Amendments of Fifth and Sixth dispo- apply to the Constitution the United States phase, adjudicative phase, to the as well as sitional hearing. hold that We a of underpinnings legislative purpose and pro- that a the conclusion Code mandate Probate phase dispositional at the discretion bate court’s unfettered certain remains a waiver recognized requirements evidentiary in criminal adjudica- already to the and extended hearing. Accordingly, we a waiver tive Appeals and of the Court of the decision reverse remain- the case for consideration remand ing raised issues defendant._ seq.; 1 1939 PA MCR 5.901 et MSA 27.3178(598.1) seq. ch XII, et seq. amended, now found at MCL 712A.1 et v Hana Opinion of the Court

I FACTS AND PROCEEDINGS January 6, 1988, defendant was arrested3 On drug Sterling City raid conducted Heights Department charged pos Police and with grams session of more than 650 containing of a substance delivery cocaine, of more than but containing grams less than cocaine,5 of a substance conspiracy to induce a minor to commit a public felony,6 bribery and official.7 We turn beginning period first to the facts at issue with the following immediately defendant’s arrest. way police Blasky station,

On the Officer testified that he informed defendant and his rights. testified brother of their Miranda8 He also told his to refrain he defendant and brother talking from to the officers "it wasn’t our because job them,” he them to to interview warned be began talking quiet to each when brothers According Blasky, other. to Officer defendant brother, descent, are seemed his who of Arabic proficient English, influence were not under the appeared any intoxicants, to understand rights. their Miranda

Shortly arriving police station, at the before juvenile.9 officers discovered that defendant was Therefore, taken to the defendant was had Also arrested were defendant’s brother and two others who arranged purchase with Officer Putnam to twelve ounces cocaine. 4 14.15(7403)(2)(a)(i). 333.7403(2)(a)(i); MCL MSA 5 14.15(7401)(2)(a)(ii). 333.7401(2)(a)(ii); MSA MCL 6 28.354(3). 750.157c; MCL MSA 7 750.117; 28.312. MCL MSA 8 Arizona, 1602; L 2d Miranda v 384 US 86 S Ct 16 Ed 694 (1966). arrest, years On the date of his defendant was 16 old. Vz 443 Mich Opinion of the Court transfer to await of the station bureau area by juvenile youth officer.10 home waiting Blasky for that while testified Officer officer, boasted about defendant drug deals, that he stated involvement other his had been years, selling drugs for a few twenty selling up kilo- to have been claimed per grams month. Officer O’Connor of cocaine Blasky and told Officer the room and entered they in defen- a safe had discovered defendant dant’s bedroom. Officer

Blasky asked defendant things easier to make to the safe the combination process already police in the were because gain securing access warrant and would a search began way Defendant or another. one to the safe gave ultimately cry, dead,” stated, "I’m but to police to the safe.11 the combination youth Shortly Brooks, thereafter, Officer Blasky arrived, left. Officer officer, and Officer of his defendant that he advised Brooks testified rights, not to discuss advised him Miranda attorney parent evening’s or until a events rights. present, if understood his asked he acknowledged did, never- that he but Defendant theless ments a incriminating state- to make continued speak again without not to and was warned attorney present. parent or custody, defendant was Brooks’ While Officer parents.12 phone permitted call to his to make following phone Brooks testified Officer call defendant asking began was the if Brooks person would defendant would decide whether who Sterling policy According Blasky, this was the to Officer Department. Heights Police police allegedly would have found stated that Defendant also $300,000 day they approximately searched it a earlier. in the safe had to contact his was unable The record indicates that defendant house, they they but that would parents had left his uncle’s because they arrived home. as soon as be contacted Hana v Opinion of overnight then Defendant or released. detained be pager, allegedly fol- Brooks a new offered Officer increasing money.13 amounts offers of lowed assigned to defen- Dodt, drive who was Officer youth home, that defendant’s testified to the dant conversation evening regarding of the the events "flip himself would whether defendant included with the detectives and make a deal over” incriminate supplier, much defen- defendant’s how together any with commis- made each month dant price, selling over a certain cocaine sions ordinarily in the sold to blacks that defendant fact through City Detroit, that defendant went against his that led to his arrest with the sale gam- judgment had incurred a because he better bling day approximately $11,000 the before debt money. Dodt also testi- Officer was need and fied expressed make a desire to that defendant "get $300,000, and live.”14 $200,000 then out or prosecutor’s to waive motion Pursuant adult,15 for trial as an over defendant hearings probate court conducted bifurcated February early 1988. At and March of hearing (phase phase probable of the waiver cause i), testimony prosecution of Officer offered the supervisor, Cleland, and an- Putnam, his Officer witness,, had been involved all of whom other the prosecution drug offered The also raid. bribery relating testimony to the Brooks of Officer testimony charge. involved of Officer Brooks’ None public bribery alleged the basis for the These offers formed charge. official home, youth transporting Dodt Officer While defendant any dispatch requested defendant if there was via radio to ask was allegedly money the home at which time defendant hidden in more $6,000 near the safe. there was in a closet stated that 712A.4; procedures in MCL MSA are set forth for waiver 27.3178(598.4) 27.3178(598.4) 712A.4; was MSA and MCE 5.950. MCL provisions PA 182. The 1988. 1988 amended effective October relevant substantially unchanged. proceeding this remain 443 Mich op the Court made allegedly or confessions admissions any segment i At the close defendant. court concluded hearing, the waiver to believe cause probable there re- charged as committed the crimes defendant 27.3178(598.4X3) 712A.4(3); MSA MCL quired by 5.950(B)(1). and MCR hear- later, conducted a the court

Several weeks should be the whether defendant ing on issue adult under or as an treated as a 712A.4(4); MSA in MCL set forth criteria n). 5.950(B)(2) 27.3178(598.4)(4) At (phase MCR and permitted hearing, probate phase ii psychologist16 of the testimony Brooks, concerning state- and Dodt Blasky, Officers his ar- made defendant after allegedly ments was "that admissibility court’s basis for rest. The here, [respon- . . . in to determine phase we’re ii character, that living, his pattern dent’s] probable in the i thing” phase rather than sort testimony to stage. The court also listened cause alleged pur- to have witnesses who were several past defendant in the narcotics from chased Michigan Tuttle of the State Lieutenant from prior involvement regarding likely Police three of someone entrusted to sell drug world of cocaine. kilograms a character wit- testimony

Defendant offered findings psycholo- as the of his own ness as well hearing, gist. Following phase ii waived. over defendant was the waiver decision appealed Defendant objected indicates that while defense counsel to The record officers, object testimony police failed to defense counsel psychologist testimony by “to the the court that defendant admitted charged being with . . . that his involvement offenses that he’s [and] on, things going he little more extensive and there were other was a everything.” if he wanted to tell wasn’t sure Hana v Opinion of the Court circuit court con- Court.17 The Macomb Circuit support ample evidence to there cluded relying Appeals, However, the Court of the waiver. L 2d 1428; 18 Ed Gault, 387 US 87 S Ct In re on (1967), holding the constitu- reversed, applicable in criminal tional phase dispositional phase n, the extended drawing hearing.18 Court, Moreover, upon trilogy States of United of this nature cases,19 that a waiver concluded of defendant’s an tantamount enhancement application required to a sentence, and thus pro- the same constitutional ii trials. found criminal tections granted 17, 1992, leave this Court November On appeal.20 II HISTORICAL OVERVIEW

A age law, of fourteen a child over At common capacity presumed to form the mental to have was the mens rea required specific intent crimes.21 17 27A.863(1) right (authorizing 600.863(1); a MSA See MCL order, sentence, any directly appropriate appeal circuit court of to the court) 600.867; probate MSA judgment MCL of a and 27A.867 or (permitting suspension of the of further court). appeal pending circuit an to a 18 Appeals, opinion per decided Unpublished of the Court of curiam 119792). (Docket 20, No. March 1992 19 States, 1045; 541; Gault, 16 supra; 86 S Ct v 383 US Kent United 1866; Smith, 454; L (1966); 101 S Ct 68 451 US 84 Estelle v L Ed 2d Ed 2d 359 (1981). 20 883. 441 Mich (14th ed), 96, pp Wharton, 426-427. See also Law § 21 1 Criminal Legislative Feld, principle juvenile offense: meets the The 471, statutes, Criminology juvenile L & changes 78 J Crim in therein; (1987), McCarthy, The role of the and authorities cited 521 concept delinquency proceedings, 10 U responsibility in (1977). 181, 184-185 J L Ref Mich 443 202 210 Mich op the Court result, age of fourteen from juveniles As adult crimi- penalties the same as could receive juveniles accountability nals.22 This criminal possi- highest punishment to the level of extended ble, punishment.23 capital century, this the end of the nineteenth

Near change radical attitude experienced country generally of children regarding the treatment jus- in the caught up those particular was called the exponents of what system. tice focusing on rehabil- began Movement24 Progressive retribution, pursuant than on itation rather parens patriae.25 doctrine of true court was established The first enabling in 1899.26 The Legislature the Illinois con- liberally the act "be legislation provided carried purpose may to the end that its be strued That, care, out, custody discipline to wit: as be approximate nearly may of a child shall . . . .”27 given parents its that which should be 22Feld, 524; supra supra McCarthy, n 21 at 185. See also n 21 at Gault, supra at 16-17. 23 522, 178; Feld, Thompson supra at ns 177 and v See n Oklahoma, 815, 832-833; 108 S Ct 101 L Ed 2d 702 487 US J.). (1988) Stevens, (opinion of Feld, See, Feld, 474-475; Criminalizing generally, supra n 21 at court, juvenile justice: procedure 69 Minn Rules of for the 141, (1984), and authorities cited therein. L R 142-151 courts, Shears, Legal problems peculiar 48 ABA to children’s See (1962) ("The 719, right liberty basic is not to but to J custody. parents so”), him, right have someone take care of and if his He has the privilege, him custodial the law must do do not afford this 17, 2d, Gault, See, quoted supra generally, n 21. 47 Am Jur at Children, 8, Delinquent Dependent 1 to Courts and § § Juvenile pp 986-990. 26McCarthy, supra n 21 at 189. 21, 1899, Laws, April quoting Act of Juvenile Id. at 27.3178(598.1X2), Courts, 712A.1(2); which mirrors MCL MSA §21. philosophy, provides: this chapter liberally the end that each This shall be construed to coming [probate] court shall

child within the of the 211 v Hana op the Court by quickly Illinois’ lead followed Several states enacting legislation, 1928, all but and similar system.28 adopted juvenile court a two states had century, quarters nearly laws of a For three surrounding juvenile procedures re- courts and unchanged. unchallenged virtually mained However, Supreme 1966, States the United 541, 556; 86 States, US in Kent v United Court (1966), that concluded 1045; 16 L Ed 2d 84 S Ct juveniles procedures to courts criminal determining important’ 'critically action "a were vitally juvenile.” rights important statutory of the juveniles several extended to The Kent Court29 recognized rights in adult criminal constitutional year Gault,30 the Court stated A later trials. recognized Amendment Fifth and Sixth applied to in adult criminal proceedings.31_ control, care, preferably guidance, in his or her receive home, and the to the child’s welfare will be conducive own from the control the state. If a child is removed interest of

best nearly placed parents, in care as child shall be her of his or as given possible equivalent should have been to the care which parents. her the child his or accompanying text. 42 and Id. at ns infra, pp 215-216. Discussed infra, pp 216-217. Discussed 358, 365-367; 1068; Ed 2d Winship, 90 S Ct 25 L In 397 US re (1970), Supreme criminal standard of extended the Court 368 proof the However, juvenile proceedings. beyond reasonable doubt a require "accurate jury trial in Supreme declined an invitation factfinding,” only requiring juvenile proceedings, instead Pennsyl judge jury. 29 v See McKeiver or could be satisfied which (1971) (opinion 528, 543; vania, L Ed 2d 647 91 S Ct 403 US J.). Blackmun, on the a reluctance Kent and Gault reveals review of both Careful link establish a clear part Court to the United States case, Amendments, the Miranda or even and Sixth the Fifth between concepts Rather, general on juvenile proceedings. both cases focus to of Amendment. indicate pursuant juveniles to the Fourteenth process extended to due Kent, ("[w]e supra ... do not mean at 562 See with all held must conform to be administrative or even of the usual requirements criminal trial 212 Mich Opinion op the Court body significant This of case law led to a in- judicial legislative regarding in crease action juvenile justice procedures.32 Particularly note- worthy judicial is the fact that extension of consti- protections juvenile proceedings tutional legislative in led to sentencing

restriction discretion probate short, of the In courts.33 the "constitu- juvenile justice sys- tional domestication”34 of prompted sentencing uniformity tem for more seri- legislative ous crimes via enactment at the ex- pense sentencing flexibility. hearing; hearing up but we do hold that must measure to the treatment”) process (emphasis added); essentials of due and fair ("neither Gault, supra at the Fourteenth Amendment nor the Bill alone”). Rights interpret of recognition differently is for adults We this reluctance as prevailing philosophy sought juveniles of the to treat require by very type than adults and would its nature a justice system. discretion alien to the adult criminal popular legislative dilemma, Michigan A resolution of this in which participates, recognizes is the bifurcated waiver adult protections adjudicative phase retaining criminal cal discretion in the in the while histori- Feld, dispositional phase. Legislative changes See statutes, supra

in n 21 at 487-491. 32See, Feld, e.g., Criminalizing juvenile justice, supra n 24 at 161- 164. 33Professor Feld states: 1970, Beginning response Supreme direct to the decision, Congress catalogue Court’s Kent excluded a of offenses from the Columbia. of the courts of the District of 1975, By suit, and, by four other states followed 1980, present juve- nine states excluded serious offenses from jurisdiction. remaining nile court states have acted simi- larly Thus, very strong legisla- since 1980. there is a trend to tively young excise the most serious offenders from jurisdiction solely on the basis of their offense. Regardless details, statutory the thrust of these laws is sentencing judges respect to remove discretion from with disposition [Feld, Legislative changes or adult .... statutes, supra Emphasis n 21 at 517. added.] appears term This to have been coined Justice Roberts of the Pennsylvania Court of in state held in Mc- McKeiver, Terry 339, 346; Keiver. See In re re 438 Pa (1970). A2d 350 v Hana Opinion of the Court

B justice regarding juvenile Michigan’s history procedures parallels trend. The first the national probate provision courts for the establishment Michigan of 1835.35 found in the Constitution in By Michigan included a Constitution jurisdiction, provision to wit: courts for the powers jurisdiction, courts and duties such "The prescribed by law.”36 This constitutional be shall unchanged.37 virtually empowerment has remained probate powers the Thereafter, and duties of the Legislature.38 by the courts were defined pro- Michigan Legislature first authorized juveniles jurisdiction in 1905.39 over bate court Michigan’s first waiver considered What would be Legisla- passed 1915, In 1907.40 statute was juveniles requiring passed who that a law ture 35 6, toto, probate 1835, provided, "A of shall 3 Const art § organized 4 of art 6 counties.” Section in each of the be established four-year provided qualified probate judges to terms were to be elected that of Before the Constitution within the several counties. voters subject 1835, ordinarily considered be matters that are province probate jurisdiction of a three-member were within court judgments empowered pass with the extant com in accord court 1787, 4. Ordinance of § mon law. Northwest 36 1850, 6, 13. Const art § 1963, 6, art 15.§ See Const (1968) Governor, 209, 226; 156 NW2d 549 380 Mich See Buback v respon (the sibility 283-284; jurisdiction defining probate is the responsibility 278, Estate, Legislature); 298 Mich In re Chamberlain (1941) power (probate from the courts derive no 299 NW 82 doings in the all of their must find warrant for law but common statutes). probate 312, subject "delinquent child” 1. A 39 1905PA § age years any boy under sixteen jurisdiction defined as was who, alia, age a state any girl law. inter violated of seventeen under 2, part: 325, pertinent provided, in 40 1907PA § be crimi- Proceedings not deemed to under this act shall be prevent trial this act shall not nal criminal fourteen proper under procedure courts of children in the felony. charged years age with the commission Mich Opinion of the Court immediately were arrested be taken before the 1939, made Legislature court.41 for specific provision waiver of over fifteen any age "charged child above the with im- penalty which involves a maximum felony life or a term of more than prisonment investigation full into the circum- years”, upon following stances a motion for filed prosecutor.42 legislation passed late By creating drug- class of cases of a violent or related nature for which waiver to an adult crimi- nal court was automatic.43

III

ANALYSIS It against foregoing backdrop historical that argument we consider defendant’s 712A.4(3), procedures provided (4); MCL (4) 5.950(B) 27.3178(598.4)(3), MSA and MCR are defendant, According waiving unconstitutional. probate jurisdiction over a minor is the harshest penalty imposed juvenile, could be on a who could expect otherwise to be released at nine- age teen, but for the waiver.44_ 325, 1, age delinquency boys 1907 PA also raised the for § years age. seventeen 308, provision 41 1915 PA 6. A similar is now § found at MCL 764.27; MSA 28.886. 288, XII, 42 1939PA 26. ch § 52, 600.606; 1988 PA found at MCL MSA 27A.606. Because the 1, 1988, apply effective date of this act was October it does not defendant, although charged he was with one of the felonies listed in statute, 333.7403(2)(a)(i); namely, the automatic waiver MCL MSA 14.15(7403X2)(a)(i)(possession grams of more than 650 of a controlled substance). 44 Michigan, jurisdiction juveniles In court retains over age who are committed to a state institution until See 1939 PA of nineteen. 288, XII, ch 19. This section was amended effective § 1, 1988, 54, XIIA, 712A.18c(4); 1988 PA October MSA ch 18c. See MCL § 27.3178(598.18c)(4). The amendment retained the automatic v Hana proce- notes that Defendant also process, phase” judicial are a "critical dures right rights, to counsel such as the that certain so and the recognized. right against self-incrimination, must be supra supra Gault, Kent, at at

See our attention 30-31. Defendant then directs 454, 462-463, 469-471; 101 Smith, 451 Estelle v US (1981), 1866; 68 L Ed 2d 359 wherein S Ct that all Fifth Court ruled United States recognized in crimi- Sixth Amendment and nal trials sentencing phase applied to the of Texas’ capital punishment procedure in bifurcated trial cases.45 Appeals Kent, treated Gault

The Court of dispositive. However, conclude that we Estelle as analysis flawed, cases is the Court’s of these reversing probate court’s it thus erred jurisdiction A defendant. to waive over decision careful review of proceedings in these cases instructive. year jurisdiction old who Kent, over a sixteen housebreaking, robbery, charged with

rape Columbia Juve- the District of was waived ques- arrested and nile Court. The defendant was tionéd for during approximately hours, seven apparently admitted involvement which time he information concern- the offense and volunteered overnight ing in a After detention similar offenses. po- home, released the defendant was interrogation day and then full lice for another he home where remained returned to the arraignment determination or for a week without of probable cause._ nineteen, age juveniles reaching it provision but for

release twenty-one age permitted until extension also certain XIIA, 18d(l), MCL PA ch now found at offenses. See 1988 § 27.3178(598.18d)(l). 712A.18d(l); MSA adopted context in the adult criminal The Estelle rationale was (1988). Wright, v 431 Mich 430 NW2d this Court in 443 Mich op the Court hearing motions held on the defendant’s was No him, court’s and the over retain findings any or made without order was After the waiver decision. of reasons for recitation through failing the District to secure a reversal process, appellate States the United Columbia’s Supreme five-justice granted A certiorari.46 majority held: as- District of Columbia statute] [The par- in the regularity sufficient procedural

sumes ticular ments of compliance require- satisfy the basic circumstances fairness, as well process due requirement a statutory with investigation.” full merits, whether, on the not consider We do [the transferred; but there have been should defendant] is no result of such reaching for a place system in our of law consequences without tremendous as hearing, without effective ceremony —without counsel, statement of rea a sistance of sons. without added; Emphasis citation 553-554. US [383 omitted.][47] boy adjudicated fifteen-year-old a Gault, was a making

delinquent remarks or indecent lewd telephone. boy neighbor by The female to a home. His deten- and taken to a detention arrested imposed entirely pending had been tion juvenile jurisdiction 381 US majority courts over (1965). had when also recognized and held: determining the "considerable whether to waive or retain latitude” that procedural safeguards and of solicitous This concern [lack however, accept care], not induce us in this case to does guaranties which would be to rule that constitutional invitation applicable charged with the serious offenses for which to adults applied juvenile proceed- was tried must be [the defendant] ings allegations US concerned with of law violation. [383 556.] v Hana Opinion the of of made him to the as a result statements at during proceedings which judge absent, no was complainant testimony the was After a given, and no record was made. of the same infirmities as the many that shared hearing, detention the defendant was committed the of age major- the State Industrial School until 4-8. Id. at ity.48 Court noted that Supreme

The United States recognized Court had Supreme already Arizona pre- law a constitutional process that due was that entailed finding delinquency to a requisite 12. ma- institution. Id. at The commitment to an jority stated: of the conclude that the Due Process Clause We requires respect in Amendment that Fourteenth may

proceedings result the his delinquency to determine which in which in commitment to an institution curtailed, the child and juvenile’s freedom right the child’s parents must be notified of them, or if represented by counsel retained be counsel, afford that counsel will they are unable to represent the child. at appointed be 41.][49] [Id. Estelle, Supreme the United States Finally, constitutionality asked to review the Court was sentencing testimony at using psychiatric bifurcated, murder trial where capital years age twenty-one in Arizona. Then did, however, following majority caveat: The Gault add opinion impact this consider of these We do not relationship provisions upon totality of the constitutional consider the entire and the state. We do not even the process relating "delinquents.” example, we are For procedures or constitutional not here concerned with applicable process, pre-judicial stages nor disposi- post-adjudicative or our attention to the do we direct tional process. at 13.] [Id. 443 Mich op the Court not warned were his counsel the defendant used could be his statements beforehand phase. penalty prosecution’s in the death case prosecution was the evidence asserted to establish it not offered because admissible against already guilt, decided been which had Finding defendant, the defendant. Court concluded: respon- Appeals that the Court of agree with We rights were violated Fifth Amendment dent’s testimony at the Grigson’s Dr. of

the admission phase. penalty defendant, a neither initiates who A criminal attempts to introduce nor

psychiatric evaluation evidence, compelled to may not be psychiatric any respond can be if his statements psychiatrist to a sentencing proceed capital him a against at used supra Burger, ing. [Estelle, (opinion at C.J.)[50] foregoing, it is clear that the the basis of

On significantly distin- Gault, are Kent, and Estelle support guishable case and do not from the instant Appeals reached the Court the conclusion reversing, waiver decision. the court’s 50 addition, In the Court held: precise scope, may layman not be aware of Because "[a] nuances, Fifth Amendment of his boundaries right depends upon legal privilege,” advice matter.” Maness v "often the assertion that subject skilled in the from who is trained and someone Meyers, Ct 42 L 419 US S[95 (1975). Ed 2d 574] Therefore, Amendment considera- in addition to the Fifth respondent

tions, penalty improperly imposed on the death Grigson psychiatric Dr. examination on which because the testified at the respon- proceeded penalty phase in violation of right to the assistance of counsel. Sixth Amendment dent’s [Estelle, supra at 471.] v Hana Opinion of the Court regu- holding requires degree procedural a Kent hearings comports larity in waiver process requirements of due with "the basic investigation.” supra Kent, at and "full fairness” required Accordingly, juvenile to courts are 553. establish counsel, right hearing procedures, afford the findings to avoid arbi- and set forth their dispo- inability and the to review waiver trariness findings. a sitions for lack of clear Gault assured right proceedings, juvenile the to counsel at waiver right proper including right notification of this right appointment of counsel and the appropriate Kent nor circumstances. Neither protections constitutional Gault extended these hearing51 dispositional phase of the balancing focuses on the interests both public. Estelle, the United States rights to Fifth and Sixth Amendment extended penalty psychiatric phase used at examinations capital enhance the murder case to guilt In con- had been established. sentence after distinguishable trast, decision is probable it to determine because i) (phase whether the best cause interests served adult court and to determine public juvenile would be and the waiving to an ii). (phase Thus, the waiver guilt. precedes any Therefore, determination of holding holdings nor the neither the Estelle extending protections mandate Kent and Gault hearings phase presently applicable n i to to hearings.52 argues is the harshest that waiver

Defendant have RH v concluded that 51 ^[52] Our See adopted State, ns 47 and 49. review of the constitutional 777 P2d 204 the compulsion the case law reveals that (Alas to submit to argument proffered by App, 1989), a psychiatric only an two appellate court defendant. jurisdictions examination In 443 Mich Opinion of the Court imposed penalty him. We dis- on that could be agree. to an is waived where a cases court, afforded a the is still criminal adult right presumption jury of inno- trial and the truly subjected ato cence, therefore not and he is yet guilt penalty is not estab- because harsher Moreover, unaware of a constitu- we are lished. juvenile.53 right Rather, as a tional to be treated derogation law, common governed by justice procedures statutes and are required courts are rules that the infirmity. It of constitutional follow the absence provisions turn. that we now is to these rule55 involved here and the court The statute54 warnings juvenile’s proper violated the without Fifth Amendment According right against Id. at 211. self-incrimination. constitutional furthering court, testimony psychiatric the "involved in that interests of potential punishment the adversary” exposed juvenile "to the child’s formal have been more severe than could otherwise far W, Wayne upon him.” Id. at 210. In Commonwealth v visited Mass Massachusetts concluded that pelled the (1993), Court of Judicial 606 NE2d precludes the Fifth Amendment com- psychological at a examination ordered self-incrimination proceeding dispositional phase a transfer unless position psychiatric that this first offers evidence. We believe history juvenile proceedings adequately fails to that permit follow the consider Michigan legislative not behind the statutes does intent reasons, interpretation. For these we decline a similar holdings Wayne in R H and W. W, Wayne supra (juveniles charged with murder do not n 52 See right juvenile justice to be retained in the have a constitutional system). 27.3178(598.4) 712A.4; provided: MCL MSA Former (3) jurisdiction, it shall determine if Before the court waives probable committed an cause to believe that the child there offense felony. which if committed an adult would be a (4) cause, Upon showing probable conduct the court shall hearing to whether or not the interests of the child determine granting public a waiver of and the would be served best determination, making jurisdiction to the criminal court. In following couj-t criteria: shall consider (a) child, physical prior his record and character of pattern living. maturity and mental and his (b) The seriousness of the offense. v Hana Opinion the of (c) offense, serious, part Whether the even if less is of a repetitive pattern of offenses which would lead to a determina- may beyond existing tion that child the be rehabilitation under juvenile programs statutory procedures. (d) suitability programs The relative of and facilities avail- juvenile able to the and criminal courts for the child. (e) public it Whether is the best interests of the welfare protection, public security and the the child stand trial as an adult offender. 5.950(B)provides: MCR (1) first-phase hearing First Phase. The is to determine probable whether there is cause that an offense has been by felony, committed which if committed and that an adult would be a probable juvenile there is cause who is years age or older committed the offense. (b) hearing, prosecuting attorney At the has the burden present legally admissible evidence to each element establish probable juvenile of the committed the offense. and to offense establish cause that the (2) requisite probable Second Phase. If the court finds the first-phase hearing second-phase hearing . . . cause at the shall be held to determine whether the interests of the and the granting public would best be served the motion. (b) prosecuting attorney establishing The has the burden of preponderance of the evidence that the best interests public and the would be served waiver. The Michigan apply Rules of Evidence do not to the second hearing. the waiver (c) court, determining whether to waive the having general jurisdiction, to the court criminal shall consider criteria, findings following giving weight and make as on the each appropriate to the circumstances: (i) character, juvenile’s prior physical record and maturity, pattern living; mental (ii) offense; the seriousness of the (iii) repetitive pattern part is whether the offense offenses which would lead to determination either that the to the treatment, that, owing is not or amenable behavior, delinquent likely nature of the disrupt despite is program, the rehabilitation of others in the treatment juvenile’s potential treatment; for (iv) treatment, whether, despite juvenile’s potential juvenile’s delinquent likely to at the nature of the render the behavior juvenile dangerous public when released age 19 or 443 Mich the Court hearing to de- bifurcated mandate a both probable separate whether termine phase suspect exists, i, and a defendant cause ap- is criminal to an adult whether requirements evidentiary phase propriate, The ii. juvenile phase admissibility of a at each differ for waiver Although hearing. silent on statute is only provides "le- that matter, rule the court the gally may to estab- be used evidence” admissible hearing phase probable i of a waiver cause lish while Michigan do not of Evidence Rules "[t]he hearing.”56 [phase apply of the waiver to . . . ii] adopted past, has this Court In the recent significant rules to the court revisions number proce- juvenile purpose clarifying for the bar, have de- and we the bench dures.57 To aid clared secure construed rules "are to be that these simplicity” flexibility, so fairness, and parties proper con- of all interests 5.902(A). ap- protected. The See MCR are cerned (v) likely rehabilitated is more be whether the programs and available in adult and facilities the services procedures programs procedures; than in (vi> public and the welfare the best interest of whether security require public that the stand protection of the [Emphasis added.] trial as an adult offender. amendment, 5.911(A)(1)which, provided: prior to MCR See 1985 Showing shall first Probable Cause. The court Phase I: committed .... The determina- if a crime has been determine [Emphasis legally evidence. admissible tion must be based on added.] (1981) Williams, App People NW2d 769 111 Mich v See also (noting preliminary through analogous hearing, phase to a which is i of a waiver only examination, probable requires proof cause n, phase legally which is evidence while use of admissible trial, similarly sentencing phase not of a criminal more like restricted). 1988, contained fourteen the Probate Code See n 2. Prior to regarding proceedings division of provisions court. in the subchap- forty-one provisions Today, the same under there are ter. v Hana Opinion of the Court purposes phase propriate standard for n hear- ing is "whether the interests of the public by granting would be served best 5.950(B)(2) (emphasis [for waiver].” motion added). MCR 5.911(A)(2) required Former MCR a "full investigation” provided into these interests and five-factor test that has been carried over to MCR 5.950(B)(2)(c) (See change.58 without substantial 11.) short, JCR also former we believe public policy underlying phase hearings that the requires n evidentiary

relaxed so standards investigation.”59 a "full ensure special played by n role 58 proper appellate People standard review is found in v for Dunbar, 380, (1985), 387; 423 in Mich 377 NW2d 262 which this Court held: waiving jurisdiction order will be affirmed whenever the [A]n findings,

judge’s upon show either that upon based substantial evidence and thorough investigation, is not treatment, or, despite potential amenable to that his for treat- ment, difficulty likely "the nature of his to render him dangerous public age [nineteen], if released at or to disrupt prior App program the rehabilitation of other children Schumacher, [Quoting People to his release.” v 75 Mich (1977). 505, 511-512;256 NW2d Citations omitted.] Fowler, 358, App See also (1992). v 193 Mich NW2d 59Moreover, Michigan we draw attention to the fact (effective 1988) Legislature step October went one further court, providing probate any for automatic waiver from without investigation, juveniles age fifteen, charged any for over the with 27.3178(598.2)(a)(2) 712A.2(a)(2); nine serious felonies. See MCL and MCL MCL MCL 750.91; MSA 600.606; MSA 27A.606. The automatic waiver felonies are (assault 750.83; murder); 28.278 with MSA intent to commit (armed 750.89; rob); MSA 28.284 assault with intent MCL means, (attempted e.g., MSA 28.286 murder nonassaultive 750.316; (first-degree murder); poisoning); MCL MSA 28.548 MCL 750.317; (second-degree murder); 750.520b; MSA 28.549 MCL MSA MSA 28.788(2) conduct); 750.529; (first-degree criminal sexual MCL (armed 14.15(7401)(2)(a)(i) robbery); 333.7401(2)(a)(i); 28.797 MCL MSA (manufacture possession grams or or more of controlled deliver); 333.7403(2)(a)(i); substance with intent MCL MSA 14.15(7403)(2)(a)(i)(possession grams of 650 or more of a controlled substance). 443 Mich Opinion of the Court 769.1(3); MSA MCL

is further 28.1072(3)60 illustrated provides 6.931, for a which and MCR sentencing hearing in automatic waiver juveniles a life convicted of have been cases where following trial. This adult criminal offense an equivalent procedure requires the "waiver-back” hearing correspond point phase ii whose criteria 712A.4(4); point in MCL to the criteria found 27.3178(598.4)(4) 5.950(B)(2), see and MCR MSA 6.931(E)(3), See of automatic waiver. MCR cases 6.901(B). proving Although the burden of MCR an adult is should be sentenced as that a 6.931(E)(2), prosecutor, "all relevant MCR on may by the be received and material evidence probative upon to the extent of its court and relied though may value, such evidence not be even 6.931(E)(1) (emphasis at trial” MCR admissible added). hearing Thus, mandates the waiver-back evidentiary of the same flexible standard use hearings though guilt phase even has found ii been established. foregoing, persuaded we are

On the basis pur Appeals misconstrued the the Court of pose and the n of a waiver require underpinnings of the Juvenile Code. The investigation, protection juve a full ments of public, the historic discre niles as well as the afforded our courts in these matters tion panoply full of constitutional convince us that the rights apply disposi was never intended to to the phase of a waiver tional hearing.61 by 1988 PA 78. This subsection was added 61Moreover, persuades our review of the court record us phase hearing properly prevent i sanitized to that defendant’s possibility prosecution involuntary allegedly confessions. The of taint from testimony a witness arrested in the same offered were involved in the transaction as defendant and two officers who controlled Brooks was purchase operation. Although testimony of Officer offered, establishing probable it was limited to cause for People v Hana Opinion of the Court

IV

CONCLUSION protections We conclude that the constitutional juvenile proceedings extended to in cases such as apply adjudica- Kent and Gault in full force to the phase hearing.62 tive find that phase hearings, of a We also concerning

the statutes and court rules properly applied, i when afford the appropriate protection. Thus, because none of the alleged confessions or admissions were introduced phase adjudicative phase at the i of the waiver hearing, there was no constitutional violation.63 panoply We conclude further the full of con- rights by stitutional asserted defendant does not bribery charge implicate any the sions and did not or admissions confes- allegedly police made defendant at the station. already recognized The courts of this state have these applicable adjudicative See, hearing. e.g., of a waiver Williams, supra (only legally n 56 admissible evidence is admissible at adjudicative phase hearing); People Good, the App established before it of a waiver v 186 Mich (1990) (voluntariness 180; 463 NW2d 213 of a confession must be may adjudicative phase be considered at the hearing); People McGilmer, App 577; v 95 Mich 291 NW2d 128 (1980) (Michigan apply right courts the Kent to counsel at proceedings prospectively). 712A.4(9); 27.3178(598.4)0), MCL MSA added 1988 PA now provides requirements examination probable finding [phase satisfy cause shall "[t]he i] equivalent preliminary of and be considered the required 766.4; Accordingly, MSA [MCL 28.922].” juveniles protections must be afforded the same constitutional phase stage hearing, including right adults at a or i of a waiver pretrial hearing regarding alleged the voluntariness of admissions confessions, (On see, e.g., People Rehearing), v Walker 374 Mich 331; (1965), right any 132 NW2d 87 and the to counsel at critical stage App proceedings. #2, of the criminal See v Martin 21 Mich (1970) (denial 667; 176 NW2d 470 of effective cross-examination examination, preliminary presumed of witnesses at the which is when counsel, any testimony the defendant is without would make elicited trial). preliminary subsequent at examination inadmissible at a adopted "totality This has of the circumstances” sought test ted at a Fare v Michael determine the voluntariness confessions to be admit phase hearing. Good, supra i See n 62 at 188-189. See also C, 707; 2560; (1979); 442 US 99 S Ct 61 L Ed 2d 197 325 Colorado, Gallegos 49; 1209; (1962); v 370 US 82 S Ct 8 L Ed 2d Benoit, (1985). State v 126 NH 490 A2d 295 We do not reach the Mich op the Court dispositional phase apply hear- of a waiver to the ing. has con- The United States Sixth Amendment of Fifth and fined its extension rights dispositional adjudicative the not to the and proceedings. phase alleged Use of defendant’s of waiver police the court and statements hearing, phase dispositional psychologist the ii at provi- any therefore, constitutional did not violate sions. legislative are directives

The historical and interpret purpose the behind We therefore clear.64 psychiatrists psychologists at or made or whether statements to issue court-ordered are treated like admissions examinations to be interrogation. police during made to officers custodial confessions interpretation disagree the dissent’s our We with conclusion comport not with the rules does the statutes and ” " Post, p 227. 'rehabilitative ideal.’ First, concept "protection of the the the dissent never addresses 5.950(B)(2), required by its public” MCR nor does it reconcile as required investigation” by court rule position with "full the historic case law. Second, hearing purpose disposition is to determine a clear juvenile justice in a amenable to treatment the whether is not, system system. If the adult is better it is determined that rehabilitate; equipped is not inflict a more to the determination to punishment. appellate in is faced with In cases which an severe facts in the punish, proper error to it is search for that indicate a desire application not based on the waiver factors and for error Moreover, grounds. certainty punishment is no constitutional where there jury possibility right a is afforded trial. (contrasted probation acquittal in trial to an or even a criminal cases) home, properly not term in some indefinite in a "punishment.” characterized Third, authority same in dissent does not make the cited adjudicative dispositional phases distinction clear a waiver between Michigan statutes and as we find the relevant agree position were rules. We have with dissent’s court it afforded hearing. would recognize Michigan probate practice did not the case that of a adult criminal defendants at some However, recognized adjudicative protections at the these are phase. “probable or cause” Moreover, example, distinguishable their For are on facts. cases (1991), State, Christopher P 816 P2d 485 v NM delinquent acts with was ordered to discuss the themselves opposing permitted to psychologist, nation therefore tenuous where counsel the exami- watch through one-way applicability this case is mirror. Its amenability inquiry was limited to the People v Hana Dissenting Opinion Cavanagh, C.J. the Probate Code and the court rules favor tailoring juvenile’s individualized sentence emphasis society’s with on both the child’s and seriously welfare. Such individualization would be dispositional phase curtailed if the was restricted urges. as defendant Appeals

The decision of the Court of is reversed and the case is remanded for consideration of appellate defendant’s other issues.65 JJ., Brickley, Boyle, Griffin, Mallett, J. Riley, concurred with respectfully Cavanagh, C.J. I dissent. The ma- jority legislative purpose holds that "the and the underpinnings of the Probate Code mandate the probate conclusion that a dispositional phase court’s discretion at the

of a waiver remains requirements evidentiary unfettered recognized certain already

in criminal adjudicative phase extended to the of a waiver hearing.” p juris- Ante, 204. The decision to waive not, diction over a however, consistent underlying with ideal,” the "rehabilitative question specific fact, alleged without a order to discuss the crime. In holding Christopher authority in P made clear that of the psychological children’s court to order a examination was not chal- lenged. 816 P2d 486. remand, Appeals On the Court of is to consider defendant’s other issues, appellate ing including whether the circuit court erred in affirm- prosecution the decision of the court for failure of the offer sufficient evidence that defendant was not amenable treat- rehabilitation, any ment and tional trial from that failing than 650 whether defendant denied constitu- right grant for failure of the circuit court to severance of his brother, his and whether the circuit court erred for jury possession to instruct the about of more than but less grams opinion of a controlled substance. While we offer no matter, may pursue on the defendant also the voluntariness of the the alleged court’s denial of a motion to following statements used at the in trial circuit court suppress. The issue was not addressed Appeals constitutionality the Court of for its decision on the issue. 443 Mich Opinion by Dissenting Cavanagh, C.J. commenta- As one courts.1 creation tor noted: goal committed to rehabilitation To those juris- juvenile court system, justice As a nonsensical. any over offender seems diction matter appropriate logic, only waiver could be is, a of rehabilitation —that a better means when better removing juvenile’s desire process court. As the criminal misbehave —exists practical matter, courts will never the criminal process than the provide a better rehabilitative else, nothing the conditions

juvenile court. If guarantee So a waiver that. criminal incarceration concept of has rehabilitation theory based on no waiver. premise should be but one —there in the Batey, The role of waiver & [Whitebread philosophy and func- Questions court: tion, Justice Major Issues Juvenile printed Readings Public Pol- Training: in Information icy 207, (1981).] 218 it is where there are no doubt instances While juve- jurisdiction necessary over certain to waive offenders, to waive cannot be nile the decision philoso- being with characterized as phy consistent system. underlying juvenile In real- jurisdic- juvenile ity, to waive the decision rather, rehabilitate, but, not a tion is decision punish juvenile upon conviction. decision juvenile the tradi- Thus, should be afforded process protections judicial in waiver tional due proceedings enjoyed of crime. adults accused

I majority holds that adult constitutional phase unnecessary protections ii in are 1Feld, justice: procedure Criminalizing juvenile for the Rules of (1984). court, 141, 69 Minn L R 146-147 229 v Hana Dissenting Cavanagh, C.J. hearings dispositional pro- it because is a ceeding "precedes any guilt.” determination of p (Emphasis original.) holding, Ante, 219. In so majority phase makes clear that it n as views proceeding only a nonadversarial that is concerned with the determination of the forum within which will tried. be As is evident from this discussion, however, there is much more at stake proceeding n of the than adjudi- the mere determination of which court will juvenile’s guilt cate the or innocence.

Since the United States Court decided States, 541; 1045; Kent v United US S Ct (1966), 16 L Gault, Ed 2d 84 In 1; re 387 US (1967), 87 S L Ct Ed 2d 527 various jurisdictions rejected espoused have the view majority, including the United States Appeals Circuit,2 Alaska,3 Court of for the Fourth (CA 1970). 169, 4, 2Kemplen Maryland, Kemplen, v 428 F2d the court stated: |T]t nothing seems to us can be more critical to the accused determining guilt determining than whether there will be a process adult-type proceeding in an criminal trial. The waiver consequences guilty can result in dire indeed for the If accused. keep jurisdiction, the detained court decides to he can be But, only majority. until he reaches . . . if court, may is waived to the adult the accused be incarcerated offense, longer, depending upon gravity for much and, citizenship. [Emphasis felony, if the offense be a lose certain of his original.] 1989). (Alas State, App, R H v 777 P2d The court stated: [Jjuvenile hearings hardly proceedings.” waiver are "neutral Rather, they fully adversary proceedings are in which the establishing probable unamenability burden of treatment a child’s to formally is allocated to . . . the state. juvenile proceedings realistically Nor can be said "only guilt adjudi- affect cated.” A avenue adult. forum where the issue of will be juvenile proceeding only is the available by may prosecute which the state seek to a child as an Consequently, proceedings the stakes involved in such high: are 202 443 Mich 230 by Dissenting Opinion Cavanagh, C.J. 4 Mexico,6

Kansas, Massachusetts,5 and Oklah New hearing analogizing by the transfer Either oma.7 proceedi sentencing phase criminal of adult to the ngs,8 rights characterizing affected or equally, if not decision to waive rights important, than the affected more proceedings delinquency,9 each to determine adjudication hearing is not a final "The result of a fitness guilt; to an adult certification of a offender but the punish- accurately 'the worst characterized as court has been ” [Quoting juvenile system empowered to inflict.’ ment the 802, 810; Court, Rptr Superior 210 Cal R v 37 Cal 3d Ramona (1985).] 693 P2d 789 4 (1980) State, 723, 725; (stating P2d 1006 v 227 Kan 608 Edwards "proceedings certify adult a minor to stand trial as an [as] that ”). prosecution’ 'comparable in seriousness to criminal 5 218, 230; W, Wayne 1323 606 NE2d v 414 Mass Commonwealth (1993).The court stated: impact, importance, potential It minimizes and the proceedings hearings that characterize them as civil transfer adjudication guilt. merely proper for an determine the forum hearings fully adversary Commonwealth seeks Part b transfer; are —the justice in the seeks to remain case, proceedings system. In murder the outcome of these conviction, will, usually mean the difference in the event of setting period treatment limited of confinement in a

between a imprisonment. [Emphasis lengthy term added.] and a 6 (1991) 416, 485, State, —; Christopher 816 P2d P v 112 NM proceed- (stating ings majority’s juvenile waiver characterization of child”). impact proceedings "diminishes the on 1975)(character (Okla State, 1270, App, v 544 P2d Crim JTP izing affected a waiver decision as the nature of the "critical”). W, H, supra. Kemplen, supra; supra; Wayne n 5 n 2 R n 3 See Edwards, supra, p (holding exclusionary n 4 See "[t]he confessions, rules, illegally equally appli pertaining obtained [are] courts, juvenile proceed as to to waiver cable ings trials”). criminal or JTP, Appeals supra, p of Criminal n 7 the Oklahoma Court held: compelled to conclude that there is no rational basis are [W]e permit illegally an obtained confession

for a rule which would to evidence at a certification when be introduced into People v Hana Dissenting Opinion by Cavanagh, C.J. jurisdictions these has held that constitutional protections ap- afforded adult criminal defendants ply proceedings. jurisdictions

Those that view the decision to jurisdiction being waive analo- gous sentencing, generally rely to adult on Estelle Smith, v 359 454; 451 US 101 S Ct 68 L Ed 2d

(1981), finding privilege against that compelled applies self-incrimination proceedings. Estelle, protects against held that the Fifth Amendment might the use of testimonial disclosures that sub- ject person punishment upon to harsher convic- pp Id., tion. 462-463. The Court stated: The essence of this basic principle constitutional requirement is "the proposes the State which punish to convict produce an individual against evidence its independent him labor of of officers, simple, not expedient cruel forcing it lips.” from his own . . .

The Court has held that "the availability of the privilege upon does not turn [Fifth Amendment] type proceeding protection in which its invoked, upon but the nature of the statement or exposure admission and the [Id., which it invites.” p Gault, quoting supra, p Emphasis 49. original.] clearly delinquency the same confession would be excluded at a hearing or a criminal trial. In addition we believe it to be contrary policy system to the fundamental of the permit a child within its to stand trial as an adult with no consideration of whether an admission or confes- sion obtained him from was taken under circumstances which suspect. duty make its trustworthiness We hold it is the of the

judge deny court to admission into evidence at a child, certification those statements of a obtained in statutory rights, violation of constitutional or which are inad- delinquency proceedings. missible in or criminal P, Christopher supra, (stating "[cjonsid- See also ering n 6 816 P2d 487 consequences transfer, that evolve from the distinction adjudicatory between and transfer blurs in the context of amendment”). the fifth Mich Dissenting Opinion Cavanagh, C.J. distinguished "limited, between The Court competency determining purpose his neutral "plainly trial,” adverse” use stand defendant’s enhance a disclosures to testimonial punishment. p Id., 465. proceeding

Characterizing as adver- the waiver jurisdiction as the to waive sarial and decision punishment, State, 777 in RH v both the (Alas 1989), App, in the court and 204, 208 P2d Wayne 218, 236; W, 414 Mass v Commonwealth (1993), that Estelle "fore- held NE2d admissions confessions and the use of closed” right against juvenile’s taken in violation juvenile compelled waiver self-incrimination agree. proceedings. I contrary ignores reasoning majority’s the

The juvenile jurisdiction reality. is of The waiver represents sentencing a choice "a decision punitive disposition criminal of adult the between disposition the of the 'rehabilitative’ court and Criminalizing juvenile jus- Feld, court.” procedure court, 69 the tice: Rules (1984). original.)10 (Emphasis R Minn L stake, there can interests at Given the substantial proceedings question are adver- no that waiver be Indeed, case demonstrates adver- this sarial. proceedings. phase n The sarial nature jurisdic- petition prosecution a for waiver filed presented evidence the circuit court and tion to against attempting prove, it defendant, alleged to allocate an offender waiver decision is choice markedly philosophy; in basic to in of two courts which differ one words, choice of the waiver decision other least, aspiration, philosophies court is at .... In offender, primary while committed to rehabilitation commitment of the elsewhere, justice process lies criminal [White- of retribution deterrence. theoretical realms supra, p Batey, bread & 213.] People v Hana Dissenting Cavanagh, C.J. prior juve- must,11 Hana, that Kafan who had no "beyond record, nile rehabilitation under ex- isting juvenile programs proce- statutory 5.950(B)(2)(c). pre- dures.” See former MCR Kafan attempt- sented ing evidence, substantial testimonial jurisdiction. to convince the court to retain question regarding There can also be no punitive nature of the decision to waive jurisdiction pros- over Kafan. Had Kafan been juvenile, ecuted as a he would have faced a maxi- (he Vi) years mum of two and one-half was 16 (until 19) juvenile reformatory. confinement in a The decision to however, Kafan, waive over paved way for the state to secure not only a conviction but also a life sentence in an prison.12 my clearly view, adult this case demon- punitive strates both the adversarial and nature of compels the con- requires recognition clusion that Estelle protections proceedings. Fifth Amendment in such agree I also with the courts that find the ration- underlying ale the United States compel decision Gault to the conclusion that the rights recognized constitutional in that case must apply proceedings.13 my view, n In the rights affected the decision to waive equally, important, rights are affected in if not more than the

juvenile proceedings to determine delin- quency, requiring equal, protection. if not more part juve- Further, in, as mentioned jurisdiction deprives nile court of his 11 5.950(B)(2)(b). See former MCR charged sentence, mandatory Because the crime carried a jurisdiction, practical purposes, decision to waive for all established upon the sentence that he would receive conviction. Doe, (1979) 48, 58; See n see also In re 61 Hawaii 594 P2d 1084 (stating application principles that "full of the broad announced in privilege [against Gault would lead to the conclusion that com pelled apply proceedings”). should in such self-incrimination] Mich Dissenting Cavanagh, C.J. rights statutory benefits the traditional to recognized system. juvenile justice in both Kent As denying juveniles justification Gault, process is the benefits due traditional jus- purportedly juveniles from derive part system. Therefore, it seems to See tice ii. protections process due traditional follow proceeding any juveniles in afforded to should be in which deprive a of of to the state seeks filing petition rights.14 for waiver those acting jurisdiction, not the state is "custody” parens patriae is determine whose as in the best juvenile accused of interest of deliberately contrary, the state To the crime. initiating, only avenue, criminal available via the Accordingly, juvenile. against proceedings such requirements "subject should be deprive a it when seeks the state which restrict supra, p liberty.” person Gault, 17. of his II age of seven law, over the At children common punishment subject crimes were committed who procedural to the same and entitled as adults protections. majority p supra, 16. Gault, As foreign punishment recognizes, however, progressive underlying philosophy move- the ment that sparked courts. the creation system progressives p envisioned Ante, 210. The reforming rather the offender focused "on that than on pp supra, punishing Feld, the offense.” 146-147._ requires adult the extension of If the United States Constitution juvenile system, juveniles in the protections to retained criminal has, denying underlying for such benefits rationale

because the surely reality, part, then the Constitution little basis in the most must also protections juvenile waiver require the extension of such losing possibility those faces where entirely. benefits v Hana Dissenting Opinion Cavanagh, C.J. develop juvenile sought early a reformers techniques system justice "use the that would psychia- then-developing behavioral the try, psychology, sciences— sociology and cure treat and —to & in children.” Whitebread behavior antisocial Batey, good, essentially supra, p 208. "The child— they 'to feel that he is to be made as saw it—was object solicitude,’ not and [the state’s] care the that he Gault, or on trial.”

was under arrest stigma supra, p associated with 15. To avoid the "hearings prosecutions, were confi- adult criminal private, to court records was and access dential 'delinquent’ youths limited, were found be supra, p guilty Feld, than of an offense.” rather delinquent Further, found to be a 151. incarcerated with adult "never to be was p Batey, supra, . . . .” & Whitebread offenders 208. propositions, to these "As corollaries operate proposed courts . . . reformers informally process.”15 legal a Id. As and without Supreme Court result, United States until had none of "[c]hildren and Gault decided Kent rights the criminal defendant the traditional considered 'civil’ courts were because Batey, supra, p 209. Tradi- & courts.” Whitebread tional due sary process considered unneces- were parens proceeding "the state was because benevolent, solicitude aims were their "Because the reformers’ science, individualized, early guided by and their intervention [the narrowly power of the circumscribe the saw no reason to reformers] state.” system sought Feld, Consequently, supra, p reformers 150. diagnosis provide flexibility in that "maximized discretion the child’s character focused on the child and and treatment and necessary lifestyle the crime.” Id. "Discretion rather than on prescribing identifying for delin the cures the causes and because approach precluded quency required uniform an individualized Id., p n 22. ity of criteria.” or standardization of treatment background important involved the child’s "Because the issues crime, specific dis courts than the commission of welfare rather pensed juries, lawyers, evidence, proce and formal rules of with Id., p 151. dures.” 443 Mich Dissenting Cavanagh, C.J. were proceedings and, consequently, patriae,”16 Gault, p 16. supra, nonadversarial. as viewed deny to state, patriae, parens right of the The to his rights available procedural to the child child, that a the assertion was elaborated elders unlike an custody.” performing the child adult, liberty but right "not has a effectively parents If the default ... is, if functions —that their custodial may inter- "delinquent” state is —the the child of so, deprive doing it does not In vene. pro- merely It has none. he any rights, because is entitled. the child "custody” to which vides basis, involving juveniles were proceedings this On therefore not "criminal” as "civil” described restrict requirements which subject not state when liberty. his deprive person it seeks [Id., p 17.] had, process rights due short, traditional "[t]he the benefits been traded theory, Batey, & Whitebread philosophy.” court 209.

supra, p

III recognized has The 'critically "is a court jurisdiction waiver of determining vitally important action important’ Kent, supra, p juvenile.” statutory important "the most to as 556. referred Aptly court,”17 the in the juvenile decision dispositional is, in a deci- reality, jurisdiction to waive decision pun- effort and to forgo any rehabilitative sion In- conviction. upon adult as an ish the parens patriae no distinction between doctrine drew conduct, supported youth a view that and noncriminal criminal position were Progressive [Feld, supra, pp 148-149.] than criminal in nature. civil rather 17Feld, supra, p 272. v Hana Dissenting Opinion Cavanagh, C.J. the waiver of

deed, characterized some courts have punish- worst as "the empowered juvenile system to inflict.” ment the Superior 802, 810; Court, 37 Cal 3d R v Ramona (1985).18(Emphasis Rptr 204; 693 P2d 210 Cal added.) possibility of a substantial In addition to the upon liberty in of conviction increase in the loss deprives the court, the waiver decision also adult protections purportedly juvenile afforded of the instance, juveniles For the Probate Code. under pending and, if trial adults incarceration with rights felony, of loss of certain convicted citizenship. early that the All are benefits of these juve- upon justify denying the relied reformers part protections. process n. See nile traditional due majority notes, States Su- the United As the although preme in Court, with the issue faced explicitly that, in a Kent,19 held has never proceeding, to the full is entitled a protections panoply afforded constitutional of however, did, of crime. The Court adults accused protections particularly find the denial of such analogized has the waiver decision One commentator even imposition penalty in adult court: of the death young from to criminal court a offender To transfer thing executing clearly convicted mur- not the same However, considering offenders waiver of serious derer. as "the juvenile justice” capital punishment a num- of reveals punishment disturbing Capital in criminal similarities. ber justice

justice four related charac- in share and waiver (2) (1) incidence, prosecutorial judicial discre- teristics: tion, low (4) (3) inconsistency premises ultimacy, with the [Zimring, to- system’s hearing juvenile to deter- for a court case in- confessions the statements and mine whether phase ii Kafan’s at and considered troduced hearing juvenile in violation were obtained waiver right silent or to remain Fifth Amendment of his right If the to counsel. Amendment his Sixth juvenile and determines that statements court constitutionally obtained, then I were confessions sen- convictions and affirm Kafan’s adult would tences. that the statements juvenile however, determines If, court obtained and confessions were rights, then constitutional of Kafan’s in violation conduct another court should the hearing. is

In the event another any necessary, and and, tainted statements absent again determines confessions, court v Hana Dissenting Opinion Cavanagh, C.J. jurisdiction waiver of appropriate, Kafan’s adult then I would affirm any If, tainted absent and sentences. convictions confessions, however, the statements that the waiver court determines inappropriate, I would vacate then try sentences, Kafan Kafan’s adult convictions disposi- appropriate juvenile, enter the Code. with the Probate tional order consistent Levin, J., C.J. Cavanagh, concurred with Notes other interventions. underlie the waiver, printed Major jurisprudence in Issues ward Headings Training: in Public Information and Juvenile Justice p Policy, 193.] required it re to reach this issue because The Court was not

Notes

[19] respect procedural error with to waiver case because of manded the Kent, supra, p jurisdiction. 552. Mich Dissenting Cavanagh, C.J. any disturbing, is an absence . . . there "where rights available the denial indication that mitigated explained action offset, or adults evidencing patriae, parens Government, as of the juveniles special commanded solicitude supra, pp Kent, 551-552. Court Act.” the Juvenile precisely had "children this concern —that It was process away traditional due their traded receiving,” they not Whitebread were for benefits prompted supra, p Batey, the Court 209—that & involving to hold Gault potential liberty, entitled to children are loss charges constitutionally adequate notice right p supra, against Gault, them, right cross- id., confrontation and counsel, examination, pp 56-57, Fifth Amend- id., and the against compelled right self-incrimination. ment pp Id., 47-48. IV foregoing reasons, this I would remand For

Case Details

Case Name: People v. Hana

Court Name: Michigan Supreme Court

Date Published: Aug 3, 1993

Citation: 504 N.W.2d 166

Docket Number: 94268, (Calendar No. 9)

Court Abbreviation: Mich.