14.15Due Process Requirements Applicable to Traditional Waiver Proceedings
“[T]he waiver of jurisdiction [over a juvenile] is a ‘critically important’ action determining vitally important statutory rights of the juvenile[,]” with consequences including the possibility of a lengthy prison sentence. Kent v United States, 383 US 541, 556-557 (1966) (internal citation omitted). Accordingly, although a waiver hearing need not “conform with all of the requirements of a criminal trial[,]” it “must measure up to the essentials of due process and fair treatment[,]” including access to records and reports, a statement of reasons for the decision on the motion, and the effective assistance of counsel. Id. at 561-563.
A.Effective Assistance of Counsel1
A juvenile has a federal constitutional right to be represented by counsel at a waiver hearing. Kent, 383 US at 553-554. A juvenile also has the right to proper notification of the right to counsel at waiver proceedings and the right to the appointment of counsel in appropriate cases. In re Gault, 387 US 1, 41 (1967); see also People v Hana, 443 Mich 202, 219, 225-226 (1993) (holding that the “full panoply of constitutional rights” afforded by Kent and Gault applies only to the first-phase, “adjudicative,” portion of the waiver hearing, and not to the second-phase, “dispositional,” phase of the waiver hearing2). See also People v Whitfield, 214 Mich App 348, 353-355 (1995) (juvenile did not receive effective assistance of counsel where juvenile’s attorney failed to appeal the decision to waive jurisdiction over the juvenile).
B.Voluntariness of a Confession3
The voluntariness of a juvenile’s confession must be established before it may be admitted during the first phase of a waiver hearing. Hana, 443 Mich at 225 n 62, citing People v Good, 186 Mich App 180 (1990).4
C.Privilege Against Self-Incrimination
The Fifth Amendment privilege against self-incrimination does not apply to a juvenile defendant’s prior statements or confessions admitted during the second phase of a traditional waiver hearing. Hana, 443 Mich at 225-226. In Hana, the juvenile defendant, following his arrest on drug charges, made incriminating statements to police officers and a youth officer despite receiving and acknowledging that he understood his Miranda rights. Id. at 205-207. The police officers, the youth officer, and a court psychologist who examined the defendant testified at the second-phase hearing concerning the incriminating statements. Id. at 207-208. Relying on Gault, 387 US 1, the Court of Appeals held that the constitutional protections applicable to criminal trials, including the privilege against self-incrimination, applied to the second phase of traditional waiver proceedings. Hana, 443 Mich at 209. The Supreme Court reversed, holding as follows:
“We conclude that the constitutional protections extended to juvenile proceedings in cases such as Kent and Gault apply in full force to the adjudicative phase of a juvenile waiver hearing. We also find that the statutes and court rules concerning phase I hearings, when properly applied, afford the appropriate protection. Thus, because none of the alleged confessions or admissions were introduced at the phase I adjudicative phase of the waiver hearing, there was no constitutional violation. We conclude further that the full panoply of constitutional rights asserted by defendant does not apply to the dispositional phase of a waiver hearing. The United States Supreme Court has confined its extension of Fifth and Sixth Amendment rights to the adjudicative and not the dispositional phase of waiver proceedings. Use of defendant’s alleged statements to the police and the court psychologist at the phase II dispositional hearing, therefore, did not violate any constitutional provisions.” Hana, 443 Mich at 225-226 (footnotes omitted).
Jeopardy attaches to a delinquency proceeding when a juvenile court, sitting as trier of fact, begins to hear evidence in the adjudicatory stage of the proceeding. Breed v Jones, 421 US 519, 531 (1975). Therefore, a decision to waive jurisdiction must occur before any adjudication of guilt or innocence. Id. at 537-538, 538 n 18. See also People v Saxton, 118 Mich App 681, 688-689 (1982) (Michigan’s traditional waiver procedure does not include an adjudication of guilt or innocence; thus, a criminal trial following waiver does not place a juvenile defendant twice in jeopardy).
1 See Section 14.6 for discussion of the statutory right to appointed counsel in traditional waiver proceedings.
2 Note, however, that a juvenile may have the right to appointed counsel during a second-phase hearing under the Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., which applies both “[d]uring consideration of a petition filed under . . . MCL 712A.4[] to waive jurisdiction . . . and upon granting a waiver of jurisdiction[,]” MCL 780.983(a)(ii)(A). See Chapter 17 for discussion of the MIDCA.
3 See Section 7.7 for discussion of the admissibility of confessions.
4 “A law enforcement official interrogating an individual in custodial detention regarding the individual’s involvement in the commission of a major felony” must capture the entire interrogation, including notification of a defendant’s Miranda rights, in a time-stamped, audiovisual recording. MCL 763.8(2). However, if the defendant’s “statement is otherwise admissible[,]” a law enforcement officer may “testify[] in court as to the circumstances and content of the . . . statement” even if the recording requirements of MCL 763.8 are not fulfilled. MCL 763.9. In such a situation, “unless the individual objected to having the interrogation recorded and that objection was properly documented under [MCL 763.8(3)], the jury shall be instructed that it is the law of this state to record statements of an individual in custodial detention who is under interrogation for a major felony and that the jury may consider the absence of a recording in evaluating the evidence relating to the individual’s statement.” MCL 763.9. See Section 7.7(A) for discussion of major felony recordings.