130

Hearing on Motion to Transfer

Upon filing a Motion to Transfer|B251, the United States District Court should conduct a hearing to determine if such transfer would be in the interest 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, guardian, or custodian, and to his counsel. 18 U.S.C.A. § 5032 (West Supp. 1995). The juvenile shall be assisted by counsel during the transfer hearing and at every other critical stage of the proceeding. Id. This is the essential preliminary step in any criminal prosecution of the juveniles. United States 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 ultimately 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 of Appeals, which will significantly delay further proceedings. A transfer hearing is deemed a civil proceeding which results in an adjudication of status rather than a criminal proceeding resulting in an 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 evidence. Id; United States v. T.F.F., 55 F. 3d 1118, 1122 (6th Cir. 1995); 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 governing evidence standard with regard to discretionary motions to transfer should be 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 convincing standard would be inconsistent with the civil and discretionary nature of the transfer hearing. See Doe, 49 F. 3d at 868; One Juvenile Male, 40 F. 3d at 844. The Federal Rules of Evidence do not apply to an 18 U.S.C.A. § 5032 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 decision to transfer can be based on hearsay evidence, and evidence that will not otherwise be admissible at trial. United States v. H.S., 717 F. Supp. 911, 913 (D.D.C. 1989), rev'd on other grounds, In re Sealed Case (Juvenile 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 provides that the Rules of Evidence do not apply to preliminary examinations in criminal cases except in respect to privileges. E.K., 471 F. Supp. at 930.