Chapter 14: Traditional Waiver Proceedings

In this chapter . . .

This chapter discusses the requirements for traditional waiver proceedings. In traditional waiver proceedings, the prosecuting attorney files a motion asking the Family Division to waive its delinquency jurisdiction over a juvenile who is 14, 15, or 16 years old. The motion may be filed with or subsequent to the filing of a delinquency petition. The court then conducts a two-phase hearing to determine whether there is probable cause that the juvenile committed a felony, and whether it is in the best interests of the juvenile and public to waive or retain jurisdiction over the juvenile. A prosecuting attorney may choose to utilize the traditional waiver proceeding, rather than automatic waiver or prosecutor-designated case proceedings, when it desires the assistance of the court in determining whether to proceed against a juvenile as though he or she were an adult, or where the court must make the waiver decision because a specified juvenile violation is not alleged.

For related topics, see the following:

•Comparison of waiver and designated case proceedings, Section 1.11;

•Detention of juveniles subject to traditional waiver proceedings, Section 3.9;

•Admissibility of confessions, Section 7.7;

•Ordering a medical or psychological examination of a juvenile, Section 7.9;

•Determining a juvenile’s competency, Section 7.10;

•Appointment of counsel under the Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., Chapter 17;

•Selected issues regarding adult sentencing, Chapter 19; and

•Appeals, Section 20.6.

14.1Initiating Traditional Waiver Proceedings by Filing Motion to Waive Jurisdiction

MCL 712A.4(1) sets out the requirements for initiating a traditional waiver proceeding:

“If a juvenile 14 years of age or older is accused of an act that if committed by an adult would be a felony, the judge of the family division of [the] circuit court in the county in which the offense is alleged to have been committed may waive jurisdiction under this section upon motion of the prosecuting attorney. After waiver, the juvenile may be tried in the court having general criminal jurisdiction of the offense.”1

MCR 3.950(C) sets out the requirements for the prosecuting attorney’s motion:2

“A motion by the prosecuting attorney requesting that the family division waive its jurisdiction to a court of general criminal jurisdiction must be in writing and must clearly indicate the charges and that if the motion is granted the juvenile will be prosecuted as though an adult.”3

For purposes of traditional waiver, a felony is “an offense punishable by imprisonment for more than [one] year or an offense designated by law as a felony.” MCL 712A.4(11); MCR 3.950(B).

1    “[T]he birthday rule of age calculation applies in Michigan.” People v Woolfolk, 304 Mich App 450, 504 (2014), aff’d 497 Mich 23 (2014). Under the birthday rule, “‘a person attains a given age on the anniversary date of his or her birth.’” Woolfolk, 304 Mich App at 461, 464, 506 (holding that the common-law rule of age calculation, under which “‘one becomes of full age the first moment of the day before’ the anniversary of his or her birth,” is inapplicable in Michigan, and that the defendant, who shot and killed the victim on the day before the defendant’s eighteenth birthday, “was not yet eighteen years of age when the shooting occurred”) (emphasis supplied; citations omitted).

2    See SCAO Form JC 18, Motion to Waive Jurisdiction and Notice.

3    The Court of Appeals has held that if the prosecuting attorney files a motion to waive Family Division jurisdiction under MCL 712A.4, that election constitutes a waiver of the alternative option of authorizing a complaint and warrant under the automatic waiver statutes. In re Fultz, 211 Mich App 299, 311-312 (1995), rev’d on other grounds by People v Fultz, 453 Mich 937 (1996). However, the Michigan Supreme Court has ordered that the Court of Appeals’ opinion on this “election of forum” issue is to be accorded no precedential force or effect. Fultz, 453 Mich 937 (1996). For more information on the precedential value of an opinion with negative subsequent history, see our note.