Hearing on Motion to Transfer
Upon filing a Motion to Transfer|B251, the United States
should conduct a hearing to determine if such transfer would be in
of justice. 18 U.S.C.A. § 5032 (West Supp. 1995); United
States v. Three
Male Juveniles, 49 F. 3d 1058, 1060 (5th Cir. 1995).
Reasonable notice of
the transfer hearing must be given to the juvenile, his parents,
custodian, and to his counsel. 18 U.S.C.A. § 5032 (West Supp.
juvenile shall be assisted by counsel during the transfer hearing
and at every
other critical stage of the proceeding. Id. This is the
preliminary step in any criminal prosecution of the juveniles.
v. E.K., 471 F. Supp. 924, 929 (D. Or. 1979).|
This will probably be the portion of the case where the
defense will want
to vigorously battle, because the transfer to adult prosecution may
result in a conviction and a longer sentence under harsher
conditions than if the
juvenile were otherwise treated as a juvenile delinquent. This may
be a key time
to try to reach an agreeable disposition, since a transfer hearing
may be lengthy
and probably result in an interlocutory appeal to the Circuit Court
which will significantly delay further proceedings.
A transfer hearing is deemed a civil proceeding which results
adjudication of status rather than a criminal proceeding resulting
adjudication of guilt or innocence. Parker, 956 F. 2d at
171. As such,
the government's burden of proof is only a preponderance of the
Id; United States v. T.F.F., 55 F. 3d 1118, 1122 (6th
Doe, 49 F. 3d at 859; United States v. A.R., 38 F. 3d
699, 703 (3d
Cir. 1994). However, at least two district courts believe that the
evidence standard with regard to discretionary motions to transfer
clearly convincing. United States v. M.L., 811 F. Supp.
491, 493 (C.D.
Cal. 1992); E.K., 471 F. Supp. at 932. The clear and
would be inconsistent with the civil and discretionary nature of
hearing. See Doe, 49 F. 3d at 868; One Juvenile
Male, 40 F. 3d at
The Federal Rules of Evidence do not apply to an 18 U.S.C.A.
transfer hearing. A.R., 38 F. 3d at 703; United States
v. Doe, 871
F. 2d 1248, 1255 n.2 (5th Cir.), cert. denied, 493 U.S. 917,
110 S. Ct.
276, 107 L. Ed. 2d 257 (1989). As such, findings in support of a
transfer can be based on hearsay evidence, and evidence that will
be admissible at trial. United States v. H.S., 717 F. Supp.
(D.D.C. 1989), rev'd on other grounds, In re Sealed Case
Transfer), 893 F. 2d 363 (D.C. 1990). It is deemed analogous
to a situation
covered by Rule 1101(d)(3) of the Federal Rules of Evidence, which
the Rules of Evidence do not apply to preliminary examinations in
except in respect to privileges. E.K., 471 F. Supp. at