concurring. I concur in the result but write separately to emphasize my belief that juvenile-transfer hearings should be conducted subject to the Arkansas Rules of Evidence. On previous occasions, this court has decided various assignments of error related to the admission of evidence in juvenile-transfer hearings. See, e.g., Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994)(involving hearsay and judicial notice objections); Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991), reh’g denied, 303 Ark. 402-A, 805 S.W.2d 80 (1991)(holding that a criminal information is only evidence that the defendant was charged with a violent crime).
This approach is not only sound but is supported by the evidentiary rules adopted by this court. Under Ark. R. Evid. 1101, the rules of evidence are to be applied in all actions and proceedings in the courts of this state, except as otherwise provided therein. Rule 1101 reads in pertinent part:
(b) Rules Inapplicable. The rules other than those with respect to privileges do not apply in the following situations:
(3) Miscellaneous proceedings. Proceedings for extradition or rendition; [preliminary examination] detention hearing in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.
Ark. R. Evid. 1101. Based on the plain language of this provision, the Arkansas Rules of Evidence contemplate an exception only for preliminary hearings on whether to detain in criminal cases. These hearings do not encompass juvenile-transfer hearings. Thus, juvenile-transfer hearings are not excepted from the application of the Arkansas Rules of Evidence.
Other jurisdictions have also determined that juvenile-transfer hearings must comport with the rules of evidence. See, e.g., A.D. v. State, 668 P.2d 840 (Alaska App. 1983); In re Jose M., 620 A.2d 804 (Conn. App. 1993)1; State v. Milk, 519 N.W.2d 313 (S.D. 1994). Of particular significance is the decision of the Supreme Court of South Dakota in State v. Milk, supra, where the court determined that it was bound by the dictates of S.D. Codified Laws Ann. § 19-9-14 (1987), a provision analogous to Ark. R. Evid. 1101. The South Dakota Supreme Court said:
Juvenile transfer hearings are clearly not included among the listed exceptions to the application of South Dakota Rules of Evidence. Hearings held for the purpose of determining whether a juvenile matter should be transferred to adult court are “proceedings” held in the circuit courts of this state; thus, the rules of evidence are apphcable.
State v. Milk, 519 N.W.2d at 315 (internal citation omitted) (emphasis in original).
As is the case under the laws of South Dakota, the Arkansas Rules of Evidence do not except juvenile-transfer hearings from the applicability of evidentiary rules. For this reason, I conclude that juvenile-transfer hearings must be conducted in accordance with the Arkansas Rules of Evidence.
Imber, J., joins in this concurrence.The Connecticut General Assembly has since eliminated juvenile-transfer, or waiver, hearings by requiring an automatic transfer from juvenile court to the regular criminal docket for juveniles of certain ages when charged with serious offenses. See 1995 Conn. Pub. Acts 225, now codified at Conn. Gen. Stat. 46b-127 (1997).