Rule 3.935 Preliminary Hearing

(A) Time.

(1) Commencement. The preliminary hearing must commence no later than 24 hours after the juvenile has been taken into court custody, excluding Sundays and holidays, as defined by MCR 8.110(D)(2), or the juvenile must be released.

(2) General Adjournment. The court may adjourn the hearing for up to 14 days:

(a) to secure the attendance of the juvenile's parent, guardian, or legal custodian or of a witness, or

(b) for other good cause shown.

(3) Special Adjournment; Specified Juvenile Violation. This subrule applies to a juvenile accused of an offense that allegedly was committed between the juvenile's 14th and 17th birthdays and that would constitute a specified juvenile violation listed in MCL 712A.2(a)(1).

(a) On a request of a prosecuting attorney who has approved the submission of a petition with the court, conditioned on the opportunity to withdraw it within 5 days if the prosecuting attorney authorizes the filing of a complaint and warrant with a magistrate, the court shall comply with subrules (i)-(iii).

(i) The court shall adjourn the preliminary hearing for up to 5 days to give the prosecuting attorney the opportunity to determine whether to authorize the filing of a criminal complaint and warrant charging the juvenile with an offense as though an adult pursuant to MCL 764.1f, instead of unconditionally approving the filing of a petition with the court.

(ii) The court, during the special adjournment under subrule 3(a), must defer a decision regarding whether to authorize the filing of the petition.

(iii) The court, during the special adjournment under subrule (3)(a), must release the juvenile pursuant to MCR 3.935(E) or detain the juvenile pursuant to MCR 3.935(D).

(b) If, at the resumption of the preliminary hearing following special adjournment, the prosecuting attorney has not authorized the filing with a magistrate of a criminal complaint and warrant on the charge concerning the juvenile, approval of the petition by the prosecuting attorney shall no longer be deemed conditional and the court shall proceed with the preliminary hearing and decide whether to authorize the petition to be filed.

(c) This rule does not preclude the prosecuting attorney from moving for a waiver of jurisdiction over the juvenile under MCR 3.950.

(B) Procedure.

(1) The court shall determine whether the parent, guardian, or legal custodian has been notified and is present. The preliminary hearing may be conducted without a parent, guardian, or legal custodian present, provided a guardian ad litem or attorney appears with the juvenile.

(2) The court shall read the allegations in the petition.

(3) The court shall determine whether the petition should be dismissed, whether the matter should be referred to alternate services pursuant to the Juvenile Diversion Act, MCL 722.821 et seq., whether the matter should be heard on the consent calendar as provided by MCR 3.932(C), or whether to continue the preliminary hearing.

(4) If the hearing is to continue, the court shall advise the juvenile on the record in plain language of:

(a) the right to an attorney pursuant to MCR 3.915(A)(1);

(b) the right to trial by judge or jury on the allegations in the petition and that a referee may be assigned to hear the case unless demand for a jury or judge is filed pursuant to MCR 3.911 or 3.912; and

(c) the privilege against self-incrimination and that any statement by the juvenile may be used against the juvenile.

(5) If the charge is a status offense in violation of MCL 712A.2(a)(2)-(4) or (d), the court must inquire if the juvenile or a parent is a member of an Indian tribe. If the court knows or has reason to know the child is an Indian child, the court must determine the identity of the tribe and comply with MCR 3.905 before proceeding with the hearing.

(6) The juvenile must be allowed an opportunity to deny or otherwise plead to the allegations.

(7) Unless the preliminary hearing is adjourned, the court must decide whether to authorize the petition to be filed pursuant to MCR 3.932(D). If it authorizes the filing of the petition, the court must:

(a) determine if fingerprints must be taken as provided by MCL 712A.11(5) and MCR 3.936; and

(b) determine if the juvenile should be released, with or without conditions, or detained, as provided in subrules (C)-(F).

(8) The juvenile may be detained pending the completion of the preliminary hearing if the conditions for detention under subrule (D) are established.

(C) Determination Whether to Release or Detain.

(1) Factors. In determining whether the juvenile is to be released, with or without conditions, or detained, the court shall consider the following factors:

(a) the juvenile's family ties and relationships,

(b) the juvenile's prior delinquency record,

(c) the juvenile's record of appearance or nonappearance at court proceedings,

(d) the violent nature of the alleged offense,

(e) the juvenile's prior history of committing acts that resulted in bodily injury to others,

(f) the juvenile's character and mental condition,

(g) the court's ability to supervise the juvenile if placed with a parent or relative, and

(h) any other factor indicating the juvenile's ties to the community, the risk of nonappearance, and the danger to the juvenile or the public if the juvenile is released.

(2) Findings. The court must state the reasons for its decision to grant or deny release on the record or in a written memorandum. The court's statement need not include a finding on each of the enumerated factors.

(D) Detention.

(1) Conditions for Detention. A juvenile may be ordered detained or continued in detention if the court finds probable cause to believe the juvenile committed the offense, and that one or more of the following circumstances are present:

(a) the offense alleged is so serious that release would endanger the public safety;

(b) the juvenile is charged with an offense that would be a felony if committed by an adult and will likely commit another offense pending trial, if released, and

(i) another petition is pending against the juvenile,

(ii) the juvenile is on probation, or

(iii) the juvenile has a prior adjudication, but is not under the court's jurisdiction at the time of apprehension;

(c) there is a substantial likelihood that if the juvenile is released to the parent, guardian, or legal custodian, with or without conditions, the juvenile will fail to appear at the next court proceeding;

(d) the home conditions of the juvenile make detention necessary;

(e) the juvenile has run away from home;

(f) the juvenile has failed to remain in a detention facility or nonsecure facility or placement in violation of a valid court order; or

(g) pretrial detention is otherwise specifically authorized by law.

(2) Waiver. A juvenile may waive the probable cause determination required by subrule (1) only if the juvenile is represented by an attorney.

(3) Evidence; Findings. The juvenile may contest the sufficiency of evidence by cross-examination of witnesses, presentation of defense witnesses, or by other evidence. The court shall permit the use of subpoena power to secure attendance of defense witnesses. The Michigan Rules of Evidence do not apply, other than those with respect to privileges.

(4) Type of Detention. The detained juvenile must be placed in the least restrictive environment that will meet the needs of the juvenile and the public, and that will conform to the requirements of MCL 712A.15 and 712A.16.

(E) Release; Conditions.

(1) The court may release a juvenile to a parent pending the resumption of the preliminary hearing, pending trial, or until further order without conditions, or, if the court determines that release with conditions is necessary to reasonably ensure the appearance of the juvenile as required or to reasonably ensure the safety of the public, the court may, in its discretion, order that the release of the juvenile be on the condition or combination of conditions that the court determines to be appropriate, including, but not limited to:

(a) that the juvenile will not commit any offense while released,

(b) that the juvenile will not use alcohol or any controlled substance or tobacco product,

(c) that the juvenile will participate in a substance abuse assessment, testing, or treatment program,

(d) that the juvenile will participate in a treatment program for a physical or mental condition,

(e) that the juvenile will comply with restrictions on personal associations or place of residence,

(f) that the juvenile will comply with a specified curfew,

(g) that the juvenile will maintain appropriate behavior and attendance at an educational program, and

(h) that the juvenile's driver's license or passport will be surrendered.

(2) Violation of Conditions of Release. If a juvenile is alleged to have violated the conditions set by the court, the court may order the juvenile apprehended and detained immediately. The court may then modify the conditions or revoke the juvenile's release status after providing the juvenile an opportunity to be heard on the issue of the violation of conditions of release.

(F) Bail. In addition to any other conditions of release, the court may require a parent, guardian, or legal custodian to post bail.

(1) Cash or Surety Bond. The court may require a parent, guardian, or legal custodian to post a surety bond or cash in the full amount of the bail, at the option of the parent, guardian, or legal custodian. A surety bond must be written by a person or company licensed to write surety bonds in Michigan. Except as otherwise provided by this rule, MCR 3.604 applies to bonds posted under this rule.

(2) Option to Deposit Cash or 10 Percent of Bail. Unless the court requires a surety bond or cash in the full amount of the bail as provided in subrule (F)(1), the court shall advise the parent, guardian, or legal custodian of the option to satisfy the monetary requirement of bail by:

(a) posting either cash or a surety bond in the full amount of bail set by the court or a surety bond written by a person or company licensed to write surety bonds in Michigan, or

(b) depositing with the register, clerk, or cashier of the court currency equal to 10 percent of the bail, but at least $10.

(3) Revocation or Modification. The court may modify or revoke the bail for good cause after providing the parties notice and an opportunity to be heard.

(4) Return of Bail. If the conditions of bail are met, the court shall discharge any surety.

(a) If disposition imposes reimbursement or costs, the bail money posted by the parent must first be applied to the amount of reimbursement and costs, and the balance, if any, returned.

(b) If the juvenile is discharged from all obligations in the case, the court shall return the cash posted, or return 90 percent and retain 10 percent if the amount posted represented 10 percent of the bail.

(5) Forfeiture. If the conditions of bail are not met, the court may issue a writ for the apprehension of the juvenile and enter an order declaring the bail money, if any, forfeited.

(a) The court must immediately mail notice of the forfeiture order to the parent at the last known address and to any surety.

(b) If the juvenile does not appear and surrender to the court within 28 days from the forfeiture date, or does not within the period satisfy the court that the juvenile is not at fault, the court may enter judgment against the parent and surety, if any, for the entire amount of the bail and, when allowed, costs of the court proceedings.