14.8Second-Phase (“Best Interests” or “Dispositional”) Hearing1

“Upon a showing of probable cause . . . , the court shall conduct a hearing to determine if the best interests of the juvenile and the public would be served by granting a waiver of jurisdiction to the court of general criminal jurisdiction.” MCL 712A.4(4). See also MCR 3.950(D)(2) (“If the court finds the requisite probable cause at the first-phase hearing, or if there is no hearing pursuant to [MCR 3.950(D)(1)(c)],[2] the second-phase hearing must be held to determine whether the interests of the juvenile and the public would best be served by granting the motion [for waiver of jurisdiction].”).

A.Time Requirements for Conducting Second-Phase Hearing

The second-phase hearing must commence within 28 days after the conclusion of the first-phase hearing, or within 35 days after the authorization of the petition if there was no first-phase hearing under MCR 3.950(D)(1)(c),3 unless adjourned for good cause. MCR 3.950(D)(2)(a).

B.Criteria to Consider at Second-Phase Hearing

In making the best-interests determination under MCL 712A.4(4), “the court shall consider all of the following criteria, giving greater weight to the seriousness of the alleged offense and the juvenile’s prior record of delinquency than to the other criteria:

“(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 culpability of the juvenile 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.” MCL 712A.4(4)(a)-(i). See also MCR 3.950(D)(2)(d)(i)-(ix), which contains substantially similar language.

Before 1997, MCL 712A.4(4) provided that each of the second-phase criteria was to be “giv[en] . . . weight as appropriate to the circumstances.” See People v Whitfield (After Remand), 228 Mich App 659, 661-662 (1998). Effective January 1, 1997, 1996 PA 262 amended MCL 712A.4(4) to require the court to assign greater weight to the seriousness of the offense and the juvenile’s prior delinquency record than to the other factors.

In a case decided under the pre-1997 version of the statute, the Michigan Supreme Court held that no single factor was to be accorded “‘preeminence over other factors to be assessed[,]’” and that the seriousness of the offense did not, standing alone, justify waiving jurisdiction over a juvenile. People v Dunbar, 423 Mich 380, 387-388, 393 (1985), quoting People v Schumacher, 75 Mich App 505, 512 (1977). In light of the amendments to MCL 712A.4(4) that now require the court to assign greater weight to this factor (as well as to the juvenile’s prior delinquency record), Dunbar’s continued validity on this point is uncertain.

Although the court must consider the criteria in MCL 712A.4(4) and MCR 3.950(D)(2)(d) when deciding whether to waive jurisdiction over a juvenile, the court generally “retains the discretion to make the ultimate decision whether to waive jurisdiction over the juvenile.” People v Williams, 245 Mich App 427, 432 (2001), citing In re Le Blanc, 171 Mich App 405, 412 (1988). However, if the court finds that (1) pursuant to a first-phase hearing, probable cause exists, and (2) the juvenile has previously been subject to the circuit court’s jurisdiction under MCL 712A.4 (traditional waiver), MCL 600.606 (automatic waiver), or former MCL 725.10a (waiver to the former Recorder’s Court),4 the court must waive jurisdiction. MCL 712A.4(5); Williams, 245 Mich App at 432.5

In determining whether to waive jurisdiction, the court may consider any stipulation by the defense to a finding that the best interests of the juvenile and the public support waiver. MCR 3.950(D)(2)(e).

During the second phase of a waiver hearing, a court cannot accept a plea of admission from a juvenile to a lesser-included offense, thereby assuming jurisdiction over the juvenile as a delinquent, without the concurrence of the prosecutor. In re Wilson, 113 Mich App 113, 122-123 (1982). The court must allow the prosecuting attorney to present evidence supporting the motion for waiver and determine whether the best interests of the juvenile and public support waiver. Id. at 121-123 (1982), citing Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672 (1972), and Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115 (1974) (in criminal cases, acceptance of plea to an offense not charged in the information or to a lesser-included offense over prosecutor’s objection violates separation of powers doctrine).

C.Findings at Second-Phase Hearing

MCR 3.950(D)(2)(d) requires the court to consider and make findings on all of the criteria listed in MCL 712A.4(4)(a)-(i). In determining whether to waive the juvenile to the court having general criminal jurisdiction, the court “must consider and make findings on the following criteria, giving greater weight to the seriousness of the alleged offense and the juvenile's prior record of delinquency than to the other criteria:

“(i) 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;

(ii) the culpability of the juvenile 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;

(iii) the juvenile’s prior record of delinquency that would be a crime if committed by an adult;

(iv) 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;

(v) 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;

(vi) the dispositional options available for the juvenile;

(vii) the juvenile’s developmental maturity, emotional health, and mental health;

(viii) if the juvenile is a member of a federally-recognized Indian tribe, culturally honoring traditional values of the juvenile’s tribe; and

(ix) the impact on any victim.” MCR 3.950(D)(2)(d) (emphasis added). See also MCL 712A.4(4)(a)-(i), which contains substantially similar language but only requires the court to consider all of the criteria listed in the statute.

The United States Court of Appeals for the Sixth Circuit has rejected a habeas petitioner’s contention that the state court had violated his due process rights by waiving jurisdiction to the adult court without making specific findings on the record regarding all of the second-phase statutory criteria for waiving jurisdiction over a juvenile:

“[O]ur concern today is whether petitioner received due process as required by Kent [v United States, 383 US 541 (1966)], not whether the state court meticulously complied with [the applicable juvenile court rule]. We find that minimum due process requirements were met. Petitioner was represented by counsel and a hearing was held on the record. Whether the Michigan court’s waiver of jurisdiction and transfer to adult court contain sufficient indicia under state law is a question for the Michigan courts, which have held that it was valid. Accordingly, despite the lack of specific findings on the record concerning the listed criteria, we cannot say that the judge did not consider all the criteria before making his decision or that the hearing did not comport with minimum due process.” Spytma v Howes, 313 F3d 363, 369-370 (CA 6, 2002).6

D.Burden of Proof and Rules of Evidence at Second-Phase Hearing

“The prosecuting attorney has the burden of establishing by a preponderance of the evidence that the best interests of the juvenile and the public would be served by waiver.” MCR 3.950(D)(2)(c).

“The Michigan Rules of Evidence, other than those with respect to privileges, do not apply to the second phase of the waiver hearing.” MCR 3.950(D)(2)(b). See also MRE 1101(b)(7), providing that the Michigan Rules of Evidence, other than those with respect to privileges, do not apply in proceedings in the Family Division “whenever MCR subchapter 3.900 states that the Michigan Rules of Evidence do not apply.”

Inadmissible evidence, including records containing hearsay information and evidence of a juvenile’s prior criminal acts not resulting in conviction, may be introduced at the second-phase hearing, as long as the evidence is relevant and material and the juvenile has an opportunity for refutation. People v Williams, 111 Mich App 818, 825-826 (1981). See also People v Hana, 443 Mich 202, 223 (1993) (noting that “the public policy underlying [second-phase] hearings requires relaxed evidentiary standards so as to ensure a ‘full investigation’” into the interests of the juvenile and the public [internal citation omitted]).

E.Special Circumstances Where No Second-Phase Hearing Is Required

When a juvenile has previously been subject to the general criminal jurisdiction of the circuit court as the result of a traditional or automatic waiver, the court, after making a finding of probable cause, must waive jurisdiction without conducting a second-phase hearing:

“If the court determines that there is probable cause to believe that an offense has been committed that if committed by an adult would be a felony and that the juvenile committed the offense, the court shall waive jurisdiction of the juvenile if the court finds that the juvenile has previously been subject to the jurisdiction of the circuit court under [MCL 712A.4 (traditional waiver) or MCL 600.606 (automatic waiver)].”7 MCL 712A.4(5). (Emphasis added.)

See also MCR 3.950(D)(2), which provides that “if the juvenile has been previously subject to the general criminal jurisdiction of the circuit court under MCL 712A.4 or [MCL] 600.606, the court must waive jurisdiction of the juvenile to the court of general criminal jurisdiction without holding the second-phase hearing.” (Emphasis added.) In effect, “[t]his mandatory waiver language makes the best interests determination conducted in a phase-two hearing irrelevant to a family court’s decision to waive jurisdiction over a juvenile to the circuit court.” People v Williams, 245 Mich App 427, 432-433 (2001).

When a court of general criminal jurisdiction acquires jurisdiction over a juvenile pursuant to MCL 712A.4(5), it must impose an adult sentence. Williams, 245 Mich App at 436, citing People v Thenghkam, 240 Mich App 29, 38-39 (2000), abrogated in part on other grounds by People v Petty, 469 Mich 108 (2003).8, 9

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 14.7(F).

3    See Section 14.7(F) for discussion of establishing probable cause at the preliminary hearing and waiver of the first-phase hearing.

4    MCL 725.10a has been repealed.

5    See Section 14.8(E) for discussion of MCL 712A.4(5).

6    See also People v Petty, 469 Mich 108, 113-119 (2003), addressing the degree of analysis required under former MCL 712A.18(1)(n) (now MCL 712A.18[1][o]), which required the Family Division to consider criteria that are nearly identical to those under MCL 712A.4(4) when deciding whether to impose an adult sentence or juvenile disposition in a designated case. The Petty Court, repudiating the “command to create a mechanical list of factual findings for each criterion” that was announced in People v Thenghkam, 240 Mich App 29 (2000), held that “[a] trial court need not engage in a lengthy ‘laundry list’ recitation of the [relevant] factors;” rather, the court must simply “acknowledge its discretion” to choose between the available sentencing and dispositional options and “consider the enunciated factors . . . to assist it in choosing one option over the others.” Petty, 469 Mich at 117, 121.

7    See Section 2.6 and Chapter 16 for further discussion of automatic waiver cases.

8   For more information on the precedential value of an opinion with negative subsequent history, see our note.

9    An adult sentence is required for all juveniles convicted following traditional waiver, not only for those waived without a second-phase hearing under MCL 712A.4(5). See Section 14.14 for additional discussion of sentencing following traditional waiver.