dissenting:
The issue before us today is not one of first impression, as the courts in In re R.L., 282 Ill. App. 3d 839, 668 N.E.2d 70 (1996), and In re J.E., 282 Ill. App. 3d 794, 668 N.E.2d 1052 (1996), have interpreted the transfer statute as requiring a proceeding independent of the detention proceeding. The majority embrace this statutory analysis, rejecting the State’s argument that a determination of probable cause in the detention hearing constitutes probable cause in the transfer hearing, and I concur with this portion of the majority’s opinion. However, the majority then hold the detention hearing transcript may be admissible to prove probable cause in the transfer hearing. Such a conclusion erodes the concept of independence envisioned by the statute. Because this ruling creates a cumbersome proceeding in the name of the rules of evidence, and because such a rule fails to comport with notions of fundamental fairness, I respectfully dissent.
The United States Supreme Court has stated that due process and fair treatment are required in juvenile court proceedings. Kent v. United States, 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045 (1966). In juvenile proceedings, fundamental fairness is the applicable due process standard. McKeiver v. Pennsylvania, 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971).
The Illinois Supreme Court has further stated that, because a juvenile transfer hearing is not an adjudicatory proceeding, reliable hearsay evidence may be admissible in a transfer hearing to prove probable cause. People v. Taylor, 76 Ill. 2d 289, 391 N.E.2d 366 (1979). The majority rely upon the holding in Taylor to support their position that documentary evidence of a reliable nature is admissible even though it contains hearsay. However, Taylor recognizes that "[t]o determine what specific procedural safeguards fundamental fairness requires in the context of a particular proceeding, one must understand the nature of the proceeding.” 76 Ill. 2d at 302, 391 N.E.2d at 372.
Under the statute before the court in Taylor (Ill. Rev. Stat. 1975, ch. 37, par. 702 — 7(3)), the court was required to consider equally weighted factors in determining whether the juvenile should be transferred. Taylor, Ill. 2d at 297, 391 N.E.2d at 370. Whether the grand jury might return an indictment was only one factor among several the court weighed. The court noted that the admission of a juvenile’s social record containing hearsay was critical, as the judge " 'does not simply deal with a specific factual incident *** but rather *** must consider the juvenile’s past, his future, his mind, and his acts and then balance these factors.’ ” Taylor, 76 Ill. 2d at 304-05, 391 N.E.2d at 373, quoting In re F.R.W., 61 Wis. 2d 193, 210, 212 N.E.2d 130, 139 (1973), quoting Miller v. Quatsoe, 332 F. Supp. 1269, 1275 (E.D. Wis. 1971). While the Taylor court was concerned with affording the court a complete view of the juvenile in allowing the documentary hearsay evidence, the statute before us today prescribes a dramatically different proceeding.
The newly amended statute provides that once the "court determines that there is probable cause to believe that the allegations in the petition and motion are true, there is a rebuttable presumption that the minor is not a fit and proper subject to be dealt with under the Juvenile Court Act of 1987.” (Emphasis added.) 705 ILCS 405/5 — 4(3.3)(a) (West Supp. 1995). The unusual procedural position of this hearing shifts the burden of coming forward with evidence upon the juvenile. The juvenile must persuade the court that various social factors militate against denying him the protections afforded by the Juvenile Court Act.
Rebuttable presumptions shift the burden of proof. Heiner v. Donnan, 285 U.S. 312, 76 L. Ed. 772, 52 S. Ct. 358 (1932). By definition, such presumptions recognize certain facts in the absence of further evidence, providing a prima facie case which shifts the burden to go forward with evidence to the defendant. See Smith v. Tri-R Vending, 249 Ill. App. 3d 654, 619 N.E.2d 172 (1993). The United States Supreme Court has held that courts traditionally examine both statutory and common law inferences closely for compliance with due process standards. See Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975).
The scheme envisioned by the majority’s opinion creates a process that is fundamentally unfair to the juvenile offender. The majority state that under this scheme, the trial court has the discretion to admit the transcript from the detention proceeding to establish the State’s position in whole or in part. However, the majority place an additional burden upon the juvenile not envisioned by the transfer statute. That is, the State’s offering of the detention hearing transcript will require the juvenile to come forward with evidence to prevent the rebuttable presumption of transfer from arising. The statute does not contemplate this additional burden, and fundamental fairness prevents reading the burden into the statute.
The majority recognize that new issues often will arise after defense counsel has had an opportunity to prepare for the transfer hearing. While the defense may still recall witnesses who have previously testified at the detention hearing, many questions are raised by this procedure. What if the witnesses are not available for further cross-examination? Will the court strike the transcript of their earlier testimony? Or, will the burden of going forward with evidence rest squarely on the defense? Will the scope of this new hearing be limited by the evidence adduced at the detention hearing? How will the court, charged with the explicit duty to determine whether the allegations are true, determine the critical issue of credibility when the witnesses will be presented only for cross-examination without direct?
Furthermore, the majority’s goal of an expeditious proceeding rarely will be realized because defense counsel, in the absence of a stipulation, will surely recall witnesses. With no answers to these glaring questions, I cannot support the majority’s position.
The United States Supreme Court has ruled "the waiver of jurisdiction is a 'critically important’ action determining vitally important statutory rights of the juvenile.” Kent v. United States, 383 U.S. 541, 556, 16 L. Ed. 2d 84, 94, 86 S. Ct. 1045, 1055 (1966). The court in Taylor noted the desire to afford juvenile courts great latitude in rendering their decisions. Taylor, 76 Ill. 2d 289, 391 N.E.2d 366. While great care is taken to prevent juvenile courts from becoming overburdened by technical rules and procedures, all proceedings must be constrained by due process. "[Ujnbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.” In re Application of Gault, 387 U.S. 1, 18, 18 L. Ed. 2d 527, 541, 87 S. Ct. 1428, 1439 (1967).
The majority, and the courts in In re R.L. and In re J.E., all agree that the transfer statute and notions of fairness require a proceeding that is independent of the detention hearing. The wisest course is to allow transfer hearings to go forward as truly independent proceedings, where the State has the burden to come forward with evidence and call live witnesses to establish its position. Considering the serious nature of the transfer proceeding, particularly in light of the presumption created under the new statute, fundamental fairness requires nothing less. Therefore, I dissent.