14.7First-Phase (“Probable Cause” or “Adjudicative”) Hearing1
The first phase of the two-part traditional waiver proceeding is a probable cause hearing, which is the equivalent of a preliminary examination in a criminal trial.2 MCL 712A.4(10); MCR 3.950(D)(1).
MCL 712A.4(3) states in relevant part:
“Before the court waives jurisdiction, the court shall determine on the record if there is probable cause to believe that an offense has been committed that if committed by an adult would be a felony[3] and if there is probable cause to believe that the juvenile committed the offense.”
See also MCR 3.950(D)(1), which provides:
“The first-phase hearing is to determine whether there is probable cause to believe that an offense has been committed that if committed by an adult would be a felony, and that there is probable cause to believe that the juvenile who is 14 years of age or older committed the offense.”
A.Time Requirements for Conducting First-Phase Hearing
“The probable cause hearing must be commenced within 28 days after the authorization of the petition unless adjourned for good cause.” MCR 3.950(D)(1)(a).
If a petition and motion to waive jurisdiction are dismissed for lack of timeliness under the 28-day rule, the prosecutor may file a second petition, which, barring a due process violation or prosecutorial bad faith, resets the 14-day time limit set out in MCR 3.950(C)(1)4 for filing a motion to waive jurisdiction. People v McCoy, 189 Mich App 201, 203-205 (1991), citing People v Weston, 413 Mich 371, 376 (1982).
The Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., authorizes the Michigan Indigent Defense Commission (MIDC)5 to set out minimum standards for attorneys who represent indigent criminal defendants. Although the MIDC is within the executive branch (and not the judicial branch), the MIDCA does not violate the separation of powers doctrine of the Michigan Constitution because “any sharing or overlapping of functions required by the [MIDCA] is sufficiently specific and limited that it does not encroach on the constitutional authority of the judiciary.” Oakland Co v State of Michigan, 325 Mich App 247, 262 (2018). The MIDCA “does not directly regulate trial courts or attorneys.” Id. Instead, it “regulates ‘indigent criminal defense system[s],’ statutorily defined as funding units, rather than trial courts themselves.” Id. at 262-263. In addition, it “repeatedly recognizes the Michigan Supreme Court’s constitutional authority to regulate practice and procedure and to exercise general superintending control of Michigan courts.” Id. at 263. Further, “the [MIDCA] contains no provision authorizing the MIDC to force the judiciary to comply with the minimum standards, nor does the [MIDCA] purport to control what happens in court.” Id. at 264. Accordingly, the MIDCA is not facially unconstitutional. Id. at 265.
The Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., requires the court to advise the accused of the right to counsel and requires that the accused be screened for eligibility for appointed counsel.6 MCL 780.991(1)(c) provides:
“Trial courts shall assure that each criminal defendant is advised of his or her right to counsel. All adults,[7] except those appearing with retained counsel or those who have made an informed waiver of counsel, must be screened for eligibility under [the MIDCA], and counsel must be assigned as soon as an indigent adult is determined to be eligible for indigent criminal defense services.”
“A preliminary inquiry regarding, and the determination of, the indigency of any defendant, including a determination regarding whether a defendant is partially indigent, . . . must be made as determined by the indigent criminal defense system[8] not later than at the defendant’s first appearance in court.” MCL 780.991(3)(a).9 The “trial court may play a role in this determination as part of any indigent criminal defense system’s compliance plan under the direction and supervision of the [Michigan Supreme Court.]” Id.10 Furthermore, nothing in the MIDCA “prevents a court from making a determination of indigency for any purpose consistent with” Const 1963, art 6. MCL 780.991(3)(a).
Counsel must be assigned as soon as the defendant has been determined as eligible for indigent criminal defense services, and counsel must be appointed “as soon as the defendant’s liberty is subject to restriction by a magistrate or judge.” MIDC Standard 4. “Representation includes but is not limited to the arraignment on the complaint and warrant.”11 Id. “All persons determined to be eligible for indigent criminal defense services shall also have appointed counsel at pre-trial proceedings, during plea negotiations and at other critical stages, whether in court or out of court.” Id. However, the defendant is not prohibited “from making an informed waiver of counsel.” Id.
For further discussion of the MIDCA, see Chapter 17.
The first-phase hearing is “the equivalent of[] the preliminary examination” required in a criminal proceeding. MCL 712A.4(10).12 Thus, because “a preliminary examination is not the proper forum to prove guilt or innocence beyond a reasonable doubt[,]” a court conducting a first-phase waiver hearing must determine only whether there is probable cause that the juvenile committed the charged offense. People v Burdin, 171 Mich App 520, 524-525 (1988). “‘[P]robable cause requires a quantum of evidence “sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief” of the accused’s guilt.’” People v Plunkett, 485 Mich 50, 57 (2010), quoting People v Yost, 468 Mich 122, 126 (2003) (internal citation omitted).
D.Burden of Proof and Rules of Evidence at First-Phase Hearing
“[T]he prosecuting attorney has the burden to present legally admissible evidence to establish each element of the offense and to establish probable cause that the juvenile committed the offense.” MCR 3.950(D)(1)(b). MCR 3.903(A)(15) defines “[l]egally admissible evidence” as “evidence admissible under the Michigan Rules of Evidence.” See also People v Hana, 443 Mich 202, 222, 225 n 62 (1993) (noting that the rules of evidence apply during the first-phase [“adjudicative”] hearing, but not the second-phase [“dispositional”] hearing).13
A finding of probable cause during a first-phase hearing “satisfies the requirements of” the preliminary examination required in a criminal proceeding. MCL 712A.4(10). Accordingly, a juvenile must be afforded the same constitutional protections during a first-phase hearing as an adult facing a preliminary examination, including the right to counsel and the right to a hearing regarding the voluntariness of any statements (i.e., a Walker14 hearing). Hana, 443 Mich at 225 n 62.
F.Special Circumstances Where First-Phase Hearing is Not Required
1.Probable Cause Established at a Preliminary Hearing
The court need not conduct a probable cause hearing if the court found the requisite probable cause during the pretrial detention determination at a preliminary hearing under MCR 3.935(D)(1), “provided that at the earlier hearing only legally admissible evidence was used to establish probable cause that the offense was committed and probable cause that the juvenile committed the offense[.]” MCR 3.950(D)(1)(c)(i).15
The court need not conduct a probable cause hearing if the juvenile waives the hearing after being informed by the court on the record that the probable cause hearing is equivalent to and held in place of a preliminary examination in district court, and that a waiver of the probable cause hearing also waives the preliminary examination.16 MCL 712A.4(3); MCR 3.950(D)(1)(c)(ii). “The court must determine that the waiver of hearing is freely, voluntarily, and understandingly given and that the juvenile knows there will be no preliminary examination in district court if the [Family Division] waives jurisdiction.” MCR 3.950(D)(1)(c)(ii).
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 MCL 766.4(1) requires the court, “[e]xcept as provided in . . . MCL 712A.4,” to schedule, at arraignment for a felony charge, “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.” (Emphasis supplied.). See also MCR 6.104(E)(4). See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7, for discussion of probable cause conferences and preliminary examinations.
3 “‘[F]elony’ means an offense punishable by imprisonment for more than 1 year or an offense designated by law as a felony.” MCL 712A.4(11).
4 See Section 14.3.
5 The MIDC is within the Department of Licensing and Regulatory Affairs (LARA). MCL 780.985(1); MCL 780.983(c).
6 The MIDCA applies to juveniles in traditional waiver proceedings, 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) (defining adult, for purposes of the MIDCA, to include these juveniles).
7 As used in the MIDCA, “‘[a]dult’” includes “[a]n individual less than 18 years of age at the time of the commission of a felony” who is the subject of a traditional waiver, designated, or automatic waiver proceeding. MCL 780.983(a)(ii).
8 An indigent criminal defense system is “[t]he local unit of government that funds a trial court.” MCL 780.983(h)(i). Alternatively, “[i]f a trial court is funded by more than 1 local unit of government,” an indigent criminal defense system is “those local units of government, collectively.” MCL 780.983(h)(ii).
9 The MIDC must “promulgate objective standards for indigent criminal defense systems to determine whether a defendant is indigent or partially indigent,” which must include “prompt judicial review, under the direction and review of the supreme court[.]” See MCL 780.991(3)(e); Standard for Determining Indigency and Contribution, Judicial Review. The MIDC has set out a minimum standard for determining indigency and contribution “for those local funding units that elect to assume the responsibility of making indigency determinations and for setting the amount that a local funding unit could require a partially indigent defendant to contribute to their defense”; however, “[a] plan that leaves screening decisions to the court can be acceptable.” Standard for Determining Indigency and Contribution, Indigency Determination (a).
10 This statute recognizes “the authority of the judicial branch with respect to indigency determinations,” and “it is sufficiently clear from MCL 780.991(3)(a) that the judiciary has not been deprived of its constitutional authority in this area.” Oakland Co, 325 Mich App at 265. See Chapter 17 for more information on the constitutionality of the MIDCA.
11 The requirement that counsel be appointed at arraignment under MIDC Standard 4 does not conflict with the US Constitution, the Michigan Constitution, or the Michigan Court Rules. Oakland Co, 325 Mich App at 269 (although the US Constitution does not require the appointment of counsel at arraignment, appointment at this juncture is not constitutionally prohibited). “Absent a state constitutional prohibition, states are free to enact legislative ‘protections greater than those secured under the United States Constitution[.]’” Id., quoting People v Harris, 499 Mich 332, 338 (2016).
12 Effective May 20, 2014, and applicable to cases in which the defendant is arraigned in district court on or after January 1, 2015, 2014 PA 123 amended MCL 766.4 to require the court, “[e]xcept as provided in . . . MCL 712A.4,” to schedule, at arraignment for a felony charge, “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) (emphasis supplied); see also 2014 PA 123, enacting section 1. See also MCR 6.104(E)(4), as amended by ADM File No. 2014-42, effective January 1, 2015. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7, for discussion of probable cause conferences and preliminary examinations.
13 MCR 3.950(D)(2) also states that the rules of evidence, other than those pertaining to privileges, do not apply to the second-phase hearing. See Section 14.8(D) for discussion of rules of evidence in the second-phase hearing.
14 People v Walker (On Rehearing), 374 Mich 331 (1965).
15 See Section 6.3(H) for discussion of MCR 3.935(D)(1).
16 Effective May 20, 2014, and applicable to cases in which the defendant is arraigned in district court on or after January 1, 2015, 2014 PA 123 amended MCL 766.4 to require the court, “[e]xcept as provided in . . . MCL 712A.4,” to schedule, at arraignment for a felony charge, “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) (emphasis supplied); see also 2014 PA 123, enacting section 1. See also MCR 6.104(E)(4). 2014 PA 123 also amended MCL 766.7 to provide that the defendant may waive the preliminary examination only “with the consent of the prosecuting attorney[]” (see also MCR 6.110(A)); it is unclear whether this consent requirement would apply in a traditional waiver proceeding under MCL 712A.4. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7, for discussion of probable cause conferences and preliminary examinations.