15.8Designation Hearing1
If the court authorizes the filing of a petition requesting the court to designate the case, the court must conduct a hearing to determine whether designation is in the best interests of the juvenile and the public. MCL 712A.2d(2).
A referee licensed to practice law in Michigan may preside at a hearing to designate a case and may make recommended findings and conclusions. MCR 3.913(A)(2)(c).2
B.Time and Notice Requirements for Designation Hearing
“The designation hearing shall be commenced within 14 days after the arraignment, unless adjourned for good cause.” MCR 3.952(A).
MCR 3.952(B) provides:
“(1) A copy of the petition or a copy of the petition and separate written request for court designation must be personally served on the juvenile and the juvenile’s parent, guardian, or legal custodian, if the address or whereabouts of the juvenile’s parent, guardian, or custodian is known or can be determined by the exercise of due diligence.
“(2) Notice of the date, time, and place of the designation hearing must be given to the juvenile, the juvenile’s parent, guardian, or legal custodian, the attorney for the juvenile, if any, and the prosecuting attorney. The notice may be given either orally on the record or in writing, served on each individual by mail, or given in another manner reasonably calculated to provide notice.”
C.Rules of Evidence and Burden of Proof at Designation Hearing
MCR 3.952(C)(1)-(2) state:
“(1) The Michigan Rules of Evidence, other than those with respect to privileges, do not apply.
(2) The prosecuting attorney has the burden of proving by a preponderance of the evidence that the best interests of the juvenile and the public would be served by designation.”
D.Factors to Consider in Determining Whether to Designate the Case
“The court may designate the case following a hearing if it determines that the best interests of the juvenile and the public would be served by the juvenile being tried in the same manner as an adult.” MCL 712A.2d(2). In making this determination, “the court shall consider all of the following factors, giving greater weight to the seriousness of the alleged offense and the juvenile’s prior delinquency record than to the other factors:
“(a) The seriousness of the alleged offense in terms of community protection, including, but not limited to, the existence of any aggravating factors recognized by the sentencing guidelines and the use of a firearm or other dangerous weapon.
(b) The juvenile’s culpability in committing the alleged offense, including, but not limited to, the level of the juvenile’s participation in planning and carrying out the offense and the existence of any aggravating or mitigating factors recognized by the sentencing guidelines.
(c) The juvenile’s prior record of delinquency that would be a crime if committed by an adult.
(d) The juvenile’s programming history, including, but not limited to, any out-of-home placement or treatment and the juvenile’s past willingness to participate meaningfully in available programming.
(e) The adequacy of the programming available to rehabilitate and hold accountable the juvenile in the juvenile justice system and the juvenile’s amenability to treatment.
(f) The dispositional options available for the juvenile.
(g) The juvenile’s developmental maturity, emotional health, and mental health.
(h) If the juvenile is a member of a federally recognized Indian tribe, culturally honoring traditional values of the juvenile’s tribe.
(i) The impact on any victim.” Id.
See also MCR 3.952(C)(3), which contains substantially similar language.
E.Required Procedures Following Designation Hearing
MCL 712A.2d(3) provides that if the case is designated, “the case must be set for trial in the same manner as the trial of an adult in a court of general criminal jurisdiction unless a probable cause hearing[3] is required under [MCL 712A.2d(4)].”
MCL 712A.2d(4) provides that a probable cause hearing is required if the petition “alleges an offense that if committed by an adult would be a felony or punishable by imprisonment for more than 1 year,” and that the probable cause hearing “is the equivalent of the preliminary examination in a court of general criminal jurisdiction and satisfies the requirement for that hearing.”4
If the court decides to designate a case, it must:
“(a) Enter a written order granting the request for court designation and
(i) schedule a preliminary examination within 14 days[5] if the juvenile is charged with a felony or an offense for which an adult could be imprisoned for more than one year,[6] or
(ii) schedule the matter for trial or pretrial hearing if the juvenile is charged with a misdemeanor.
“(b) Make findings of fact and conclusions of law forming the basis for entry of the order designating the petition. The findings and conclusions may be incorporated in a written opinion or stated on the record.” MCR 3.952(D)(1).
If the court denies a request to designate a case, “the court shall make written findings or place them on the record. Further proceedings shall be conducted pursuant to MCR 3.941–[MCR] 3.944[,]” rules governing delinquency proceedings. MCR 3.952(E).
F.Combined Designation Hearing and Preliminary Examination
If a preliminary examination is required, it may be combined with the designation hearing for an offense other than a specified juvenile offense. MCL 712A.2d(4).
If the designation hearing and preliminary examination are combined, “the Michigan Rules of Evidence, except as otherwise provided by law, apply only to the preliminary examination phase of the combined hearing.” MCR 3.953(C).
Although a referee may preside at a designation hearing, MCR 3.913(A)(2)(c), only a judge may preside at a preliminary examination, MCR 3.912(A)(3). Thus, a judge must preside at a combined hearing.
1 “Instruments of restraint . . . may not be used on a juvenile during a court proceeding unless the court finds that the use of restraints is necessary due to one of the” factors set forth in MCR 3.906(A)(1)-(3). MCR 3.906(A). A determination that restraints are necessary must be made in compliance with MCR 3.906(B), and any use of restraints must comply with MCR 3.906(C). See Section 1.5 for more information on the use of restraints in juvenile proceedings.
2 See Section 2.18 for further discussion of referees’ authority. See Section 2.19 for discussion of requirements for the review of referees’ recommended findings and conclusions. See the Michigan Judicial Institute’s table for a table summarizing which proceedings must be conducted by a judge and which proceedings may be conducted by an attorney referee or a nonattorney referee.
3 The Michigan Court Rules refer to this “probable cause hearing” as the “preliminary examination.” See, e.g., MCR 3.952(D)(1)(a)(i). The probable cause hearing required under MCL 712A.2d(4) should not be confused with the probable cause conference that is required, in addition to the preliminary examination, in courts of general criminal jurisdiction under MCL 766.4(1).
4 At arraignment for a felony charge, the court must schedule “a probable cause conference to be held not less than 7 days or more than 14 days after the date of the arraignment[]” and a preliminary examination to be held “not less than 5 days or more than 7 days after the date of the probable cause conference.” MCL 766.4(1); see also 2014 PA 123, enacting section 1.
Because the proceedings in a designated case “are criminal proceedings and must afford all procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense in a court of general criminal jurisdiction,” MCL 712A.2d(7), these requirements under MCL 766.4(1) may apply to designated proceedings. However, MCL 712A.2d and the court rules governing designated proceedings, including MCR 3.951, have not been amended to reflect these requirements; therefore, it is unclear to what extent the statutory and court rule requirements apply to designated cases (with the exception of MCR 6.110, which, under MCR 3.953(E), specifically applies to designated proceedings). See Section 15.9 for additional discussion of MCL 766.4; see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7, for discussion of probable cause conferences and preliminary examinations.
5 At arraignment for a felony charge, the court must schedule “a probable cause conference to be held not less than 7 days or more than 14 days after the date of the arraignment[]” and a preliminary examination to be held “not less than 5 days or more than 7 days after the date of the probable cause conference.” MCL 766.4(1); see also 2014 PA 123, enacting section 1.
Because the proceedings in a designated case “are criminal proceedings and must afford all procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense in a court of general criminal jurisdiction,” MCL 712A.2d(7), these requirements under MCL 766.4(1) may apply to designated proceedings. However, MCL 712A.2d and the court rules governing designated proceedings, including MCR 3.951, have not been amended to reflect these requirements; therefore, it is unclear to what extent the statutory and court rule requirements apply to designated cases (with the exception of MCR 6.110, which, under MCR 3.953(E), specifically applies to designated proceedings). See Section 15.9 for additional discussion of MCL 766.4; see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7, for discussion of probable cause conferences and preliminary examinations.
6 The preliminary examination must be scheduled before a judge other than the judge who would conduct the trial. MCL 712A.2d(4); MCR 3.912(C)(1); see also MCR 3.951(A)(2)(c)(ii) (governing prosecutor-designated cases).