Rule 3.950.Waiver of Jurisdiction

MCR 3.950 is the rule that moves a juvenile case out of the family division and into a court of general criminal jurisdiction. The consequences are the reason for the procedure. Subrule (A) restricts the decision to a judge assigned to hear cases in the family division of the circuit court of the county where the offense is alleged to have been committed, acting under MCL 712A.4. Subrule (B) defines felony for this rule as an offense punishable by imprisonment for more than one year or an offense designated by law as a felony.

The motion

Subrule (C) requires the prosecuting attorney's motion to be in writing and to state clearly both the charges and that a grant means the juvenile will be prosecuted as though an adult. The motion must be filed within 14 days after the petition has been authorized to be filed. Absent a timely motion and good cause shown, the juvenile is no longer subject to waiver on those charges. A copy must be personally served on the juvenile and on the parent, guardian, or legal custodian if their addresses or whereabouts are known or can be determined by the exercise of due diligence.

Phase one: probable cause

Subrule (D)(1) asks whether there is probable cause to believe an offense was committed that would be a felony if committed by an adult, and probable cause to believe that the juvenile, who must be 14 years of age or older, committed it. The hearing must commence within 28 days after authorization of the petition unless adjourned for good cause, and the prosecuting attorney must use legally admissible evidence to establish each element and the juvenile's connection to the offense. Subrule (D)(1)(c) allows the phase to be skipped in two situations: the court already found the requisite probable cause at a hearing under MCR 3.935(D)(1) using only legally admissible evidence, or the juvenile waives the hearing after being told on the record that it stands in place of a district court preliminary examination and the court finds the waiver freely, voluntarily, and understandingly given.

Phase two: best interests

Subrule (D)(2) asks whether the interests of the juvenile and the public would best be served by granting the motion. One shortcut exists: if the juvenile has previously been subject to the general criminal jurisdiction of the circuit court under MCL 712A.4 or MCL 600.606, the court must waive jurisdiction without holding this phase. Otherwise the hearing must commence within 28 days after the conclusion of the first phase, or within 35 days after authorization of the petition if there was no hearing under subrule (D)(1)(c). The Michigan Rules of Evidence, other than privileges, do not apply, and the prosecuting attorney must establish by a preponderance of the evidence that waiver serves the best interests of the juvenile and the public.

The court must consider and make findings on nine criteria, giving greater weight to the seriousness of the alleged offense and the juvenile's prior record of delinquency than to the rest. The remaining criteria cover culpability, programming history, the adequacy of juvenile system programming and the juvenile's amenability to treatment, the dispositional options available, developmental maturity and emotional and mental health, traditional values of the juvenile's tribe if the juvenile is a member of a federally recognized Indian tribe, and the impact on any victim. Subrule (D)(2)(e) lets the court also consider a defense stipulation supporting waiver.

Granting, denying, and the examiner's testimony

If the motion is granted, subrule (E) requires a written order transferring the matter for arraignment on an information, findings of fact and conclusions of law, and advice that the juvenile may seek appellate review in the Court of Appeals within 21 days to preserve the appeal of right, with appointed counsel under MCR 3.993(D)(5) if the juvenile cannot afford an attorney. The juvenile is then handled like an adult defendant but must be kept separate and apart from adult prisoners as required by MCL 764.27a. If the motion is denied, subrule (F) requires written or recorded findings and orders release without bail when a detained juvenile's trial in the family division has not started within 28 days after entry of the order denying waiver and the delay is not attributable to the defense, unless the juvenile is being detained on another matter. Subrule (G) bars a psychiatrist, psychologist, or certified social worker who conducted a court-ordered waiver examination from testifying at a later criminal proceeding without the juvenile's written consent. That consent counts only if it is given after the waiver decision is rendered, after the juvenile has had a chance to read the report, and in the presence of the juvenile's attorney or, if no attorney represents the juvenile, a parent, guardian, or legal custodian. Consenting does not waive the juvenile's privilege against self-incrimination.