I respectfully dissent. The majority holds that "the legislative purpose and the underpinnings of the Probate Code mandate the conclusion that a probate court’s discretion at the dispositional phase of a waiver hearing remains unfettered by certain evidentiary requirements recognized in criminal proceedings and already extended to the adjudicative phase of a waiver hearing.” Ante, p 204. The decision to waive jurisdiction over a juvenile is not, however, consistent with the "rehabilitative ideal,” underlying the *228creation of the juvenile courts.1 As one commentator noted:
To those committed to rehabilitation as a goal of the justice system, waiver of juvenile court jurisdiction over any offender seems nonsensical. As a matter of logic, waiver could only be appropriate when a better means of rehabilitation — that is, a better process for removing the juvenile’s desire to misbehave — exists in the criminal court. As a practical matter, the criminal courts will never provide a better rehabilitative process than the juvenile court. If nothing else, the conditions of criminal incarceration guarantee that. So a waiver theory based on the concept of rehabilitation has but one premise — there should be no waiver. [Whitebread & Batey, The role of waiver in the juvenile court: Questions of philosophy and function, printed in Major Issues in Juvenile Justice Information and Training: Readings in Public Policy 207, 218 (1981).]
While there are no doubt instances where it is necessary to waive jurisdiction over certain juvenile offenders, the decision to waive cannot be characterized as being consistent with the philosophy underlying the juvenile court system. In reality, the decision to waive juvenile court jurisdiction is not a decision to rehabilitate, but, rather, a decision to punish the juvenile upon conviction. Thus, the juvenile should be afforded the traditional due process protections in judicial waiver proceedings enjoyed by adults accused of crime.
I
The majority holds that adult constitutional protections are unnecessary in phase ii juvenile *229waiver hearings because it is a dispositional proceeding and "precedes any determination of guilt.” Ante, p 219. (Emphasis in original.) In so holding, the majority makes clear that it views phase n as a nonadversarial proceeding that is concerned only with the determination of the forum within which the juvenile will be tried. As is evident from this discussion, however, there is much more at stake in phase n of the juvenile waiver proceeding than the mere determination of which court will adjudicate the juvenile’s guilt or innocence.
Since the United States Supreme Court decided Kent v United States, 383 US 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966), and In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967), various jurisdictions have rejected the view espoused by the majority, including the United States Court of Appeals for the Fourth Circuit,2 Alaska,3 *230Kansas,4 Massachusetts,5 New Mexico,6 and Oklahoma.7 Either by analogizing the transfer hearing to the sentencing phase of adult criminal proceedings,8 or by characterizing the rights affected by the decision to waive jurisdiction as equally, if not more important, than the rights affected in juvenile proceedings to determine delinquency,9 each of *231these jurisdictions has held that constitutional protections afforded adult criminal defendants apply to juvenile waiver proceedings.
Those jurisdictions that view the decision to waive juvenile court jurisdiction as being analogous to adult sentencing, generally rely on Estelle v Smith, 451 US 454; 101 S Ct 1866; 68 L Ed 2d 359 (1981), in finding that the privilege against compelled self-incrimination applies to juvenile waiver proceedings. In Estelle, the Supreme Court held that the Fifth Amendment protects against the use of testimonial disclosures that might subject a person to harsher punishment upon conviction. Id., pp 462-463. The Court stated:
The essence of this basic constitutional principle is "the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.” . . .
The Court has held that "the availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” [Id., p 462, quoting Gault, supra, p 49. Emphasis in original.]
*232The Court distinguished between the "limited, neutral purpose of determining his competency to stand trial,” and the "plainly adverse” use of testimonial disclosures to enhance a defendant’s punishment. Id., p 465.
Characterizing the waiver proceeding as adversarial and the decision to waive jurisdiction as punishment, both the court in RH v State, 777 P2d 204, 208 (Alas App, 1989), and the court in Commonwealth v Wayne W, 414 Mass 218, 236; 606 NE2d 1323 (1993), held that Estelle "foreclosed” the use of confessions and admissions taken in violation of a juvenile’s right against compelled self-incrimination in juvenile waiver proceedings. I agree.
The majority’s reasoning to the contrary ignores reality. The waiver of juvenile court jurisdiction is "a sentencing decision that represents a choice between the punitive disposition of adult criminal court and the 'rehabilitative’ disposition of the juvenile court.” Feld, Criminalizing juvenile justice: Rules of procedure for the juvenile court, 69 Minn L R 141, 269 (1984). (Emphasis in original.)10 Given the substantial interests at stake, there can be no question that waiver proceedings are adversarial. Indeed, this case demonstrates the adversarial nature of phase n waiver proceedings. The prosecution filed a petition for waiver of jurisdiction to the circuit court and presented evidence against the defendant, attempting to prove, as it *233must,11 that Kafan Hana, who had no prior juvenile record, was "beyond rehabilitation under existing juvenile programs and statutory procedures.” See former MCR 5.950(B)(2)(c). Kafan presented substantial testimonial evidence, attempting to convince the court to retain jurisdiction.
There can also be no question regarding the punitive nature of the decision to waive juvenile jurisdiction over Kafan. Had Kafan been prosecuted as a juvenile, he would have faced a maximum of two and one-half years (he was 16 Vi) of confinement (until 19) in a juvenile reformatory. The decision to waive jurisdiction over Kafan, however, paved the way for the state to secure not only a conviction but also a life sentence in an adult prison.12 In my view, this case clearly demonstrates both the adversarial and punitive nature of juvenile waiver proceedings and compels the conclusion that Estelle requires the recognition of Fifth Amendment protections in such proceedings.
I also agree with the courts that find the rationale underlying the United States Supreme Court decision in Gault to compel the conclusion that the constitutional rights recognized in that case must apply in phase n proceedings.13 In my view, the rights affected by the decision to waive jurisdiction are equally, if not more important, than the rights affected in juvenile proceedings to determine delinquency, requiring equal, if not more protection. Further, as mentioned in part in, waiver of juvenile court jurisdiction deprives the juvenile of his *234statutory rights to the traditional benefits of the juvenile justice system. As recognized in both Kent and Gault, the justification for denying juveniles traditional due process rights is the benefits that juveniles purportedly derive from the juvenile justice system. See part ii. Therefore, it seems to follow that traditional due process protections should be afforded to juveniles in any proceeding in which the state seeks to deprive a juvenile of those rights.14 In filing a petition for waiver of juvenile court jurisdiction, the state is not acting as parens patriae to determine whose "custody” is in the best interest of the juvenile accused of crime. To the contrary, the state is deliberately initiating, via the only available avenue, criminal proceedings against the juvenile. Accordingly, such proceedings should be "subject to the requirements which restrict the state when it seeks to deprive a person of his liberty.” Gault, supra, p 17.
II
At common law, children over the age of seven who committed crimes were subject to punishment as adults and entitled to the same procedural protections. Gault, supra, p 16. As the majority recognizes, however, punishment was foreign to the philosophy underlying the progressive movement that sparked the creation of juvenile courts. Ante, p 210. The progressives envisioned a system that focused "on reforming the offender rather than on punishing the offense.” Feld, supra, pp 146-147._
*235The early reformers sought to develop a juvenile justice system that would "use the techniques of the then-developing behavioral sciences — psychiatry, psychology, and sociology — to treat and cure antisocial behavior in children.” Whitebread & Batey, supra, p 208. "The child — essentially good, as they saw it — was to be made 'to feel that he is the object of [the state’s] care and solicitude,’ not that he was under arrest or on trial.” Gault, supra, p 15. To avoid the stigma associated with adult criminal prosecutions, "hearings were confidential and private, access to court records was limited, and youths were found to be 'delinquent’ rather than guilty of an offense.” Feld, supra, p 151. Further, a juvenile found to be delinquent was "never to be incarcerated with adult offenders . . . .” Whitebread & Batey, supra, p 208.
"As corollaries to these propositions, the reformers . . . proposed that the courts operate informally and without legal process.”15 Id. As a result, until the United States Supreme Court decided Kent and Gault "[c]hildren had none of the traditional rights of the criminal defendant because juvenile courts were considered 'civil’ courts.” Whitebread & Batey, supra, p 209. Traditional due process rights were considered unnecessary because "the state was proceeding as parens *236patriae,”16 and, consequently, the proceedings were viewed as nonadversarial. Gault, supra, p 16.
The right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right "not to liberty but to custody.” ... If the parents default in effectively performing their custodial functions — that is, if the child is "delinquent” — the state may intervene. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the "custody” to which the child is entitled. On this basis, proceedings involving juveniles were described as "civil” not "criminal” and therefore not subject to the requirements which restrict the state when it seeks to deprive a person of his liberty. [Id., p 17.]
In short, "[t]he traditional due process rights had, in theory, been traded for the benefits of the juvenile court philosophy.” Whitebread & Batey, supra, p 209.
III
The Supreme Court has recognized that the waiver of juvenile court jurisdiction "is a 'critically important’ action determining vitally important statutory rights of the juvenile.” Kent, supra, p 556. Aptly referred to as "the most important dispositional decision in the juvenile court,”17 the decision to waive jurisdiction is, in reality, a decision to forgo any rehabilitative effort and to punish the juvenile as an adult upon conviction. In*237deed, some courts have characterized the waiver of juvenile court jurisdiction as "the worst punishment the juvenile system is empowered to inflict.” Ramona R v Superior Court, 37 Cal 3d 802, 810; 210 Cal Rptr 204; 693 P2d 789 (1985).18 (Emphasis added.)
In addition to the possibility of a substantial increase in the loss of liberty upon conviction in adult court, the waiver decision also deprives the juvenile of the protections purportedly afforded juveniles under the Probate Code. For instance, incarceration with adults pending trial and, if convicted of a felony, loss of certain rights of citizenship. All of these are benefits that the early reformers relied upon to justify denying the juvenile traditional due process protections. See part n.
As the majority notes, the United States Supreme Court, although faced with the issue in Kent,19 has never explicitly held that, in a juvenile waiver proceeding, a juvenile is entitled to the full panoply of constitutional protections afforded adults accused of crime. The Court did, however, find the denial of such protections particularly *238disturbing, "where . . . there is an absence of any indication that the denial of rights available to adults was offset, mitigated or explained by action of the Government, as parens patriae, evidencing the special solicitude for juveniles commanded by the Juvenile Court Act.” Kent, supra, pp 551-552. It was precisely this concern — that "children had traded away their traditional due process rights for benefits they were not receiving,” Whitebread & Batey, supra, p 209 — that prompted the Court in Gault to hold that in proceedings involving the potential loss of liberty, children are entitled to constitutionally adequate notice of the charges against them, Gault, supra, p 41, the right to counsel, id., the right to confrontation and cross-examination, id., pp 56-57, and the Fifth Amendment right against compelled self-incrimination. Id., pp 47-48.
IV
For the foregoing reasons, I would remand this case to the juvenile court for a hearing to determine whether the statements and confessions introduced and considered at phase ii of Kafan’s juvenile waiver hearing were obtained in violation of his Fifth Amendment right to remain silent or his Sixth Amendment right to counsel. If the juvenile court determines that the statements and confessions were constitutionally obtained, then I would affirm Kafan’s adult convictions and sentences. If, however, the juvenile court determines that the statements and confessions were obtained in violation of Kafan’s constitutional rights, then the juvenile court should conduct another waiver hearing. In the event another waiver hearing is necessary, and, absent any tainted statements and confessions, the juvenile court again determines *239that the waiver of juvenile court jurisdiction is appropriate, then I would affirm Kafan’s adult convictions and sentences. If, absent any tainted statements and confessions, however, the juvenile court determines that the waiver of juvenile court jurisdiction was inappropriate, then I would vacate Kafan’s adult convictions and sentences, try Kafan as a juvenile, and enter the appropriate dispositional order consistent with the Probate Code.
Levin, J., concurred with Cavanagh, C.J.Feld, Criminalizing juvenile justice: Rules of procedure for the juvenile court, 69 Minn L R 141, 146-147 (1984).
Kemplen v Maryland, 428 F2d 169, 174 (CA 4, 1970). In Kemplen, the court stated:
|T]t seems to us nothing can be more critical to the accused than determining whether there will be a guilt determining process in an adult-type criminal trial. The waiver proceeding can result in dire consequences indeed for the guilty accused. If the juvenile court decides to keep jurisdiction, he can be detained only until he reaches majority. . . . But, if jurisdiction is waived to the adult court, the accused may be incarcerated for much longer, depending upon the gravity of the offense, and, if the offense be a felony, lose certain of his rights of citizenship. [Emphasis in original.]
R H v State, 777 P2d 204, 210 (Alas App, 1989). The court stated:
[Jjuvenile waiver hearings are hardly "neutral proceedings.” Rather, they are fully adversary proceedings in which the burden of establishing a child’s probable unamenability to treatment is formally allocated to the state. . . .
Nor can juvenile waiver proceedings realistically be said to affect "only the forum where the issue of guilt will be adjudicated.” A juvenile waiver proceeding is the only available avenue by which the state may seek to prosecute a child as an adult. Consequently, the stakes involved in such proceedings are high:
*230"The result of a fitness hearing is not a final adjudication of guilt; but the certification of a juvenile offender to an adult court has been accurately characterized as 'the worst punishment the juvenile system is empowered to inflict.’ ” [Quoting Ramona R v Superior Court, 37 Cal 3d 802, 810; 210 Cal Rptr 204; 693 P2d 789 (1985).]
Edwards v State, 227 Kan 723, 725; 608 P2d 1006 (1980) (stating that "proceedings to certify a minor to stand trial as an adult [as] 'comparable in seriousness to a criminal prosecution’ ”).
Commonwealth v Wayne W, 414 Mass 218, 230; 606 NE2d 1323 (1993). The court stated:
It minimizes the importance, and the potential impact, of transfer hearings to characterize them as civil proceedings that merely determine the proper forum for an adjudication of guilt. Part b hearings are fully adversary — the Commonwealth seeks transfer; the juvenile seeks to remain in the juvenile justice system. In a murder case, the outcome of these proceedings will, in the event of conviction, usually mean the difference between a limited period of confinement in a treatment setting and a lengthy term of imprisonment. [Emphasis added.]
Christopher P v State, 112 NM 416, —; 816 P2d 485, 486 (1991) (stating that majority’s characterization of juvenile waiver proceedings "diminishes the impact of the proceedings on the child”).
JTP v State, 544 P2d 1270, 1276 (Okla Crim App, 1975) (characterizing the nature of the rights affected by a waiver decision as "critical”).
See Kemplen, n 2 supra; R H, n 3 supra; and Wayne W, n 5 supra.
See Edwards, n 4 supra, p 725 (holding that "[t]he exclusionary rules, pertaining to illegally obtained confessions, [are] equally applicable to waiver proceedings in juvenile courts, as to juvenile proceedings or criminal trials”).
In JTP, n 7 supra, p 1276, the Oklahoma Court of Criminal Appeals held:
[W]e are compelled to conclude that there is no rational basis for a rule which would permit an illegally obtained confession to be introduced into evidence at a certification hearing when *231the same confession would be clearly excluded at a delinquency hearing or a criminal trial. In addition we believe it to be contrary to the fundamental policy of the juvenile court system to permit a child within its jurisdiction to stand trial as an adult with no consideration of whether an admission or confession obtained from him was taken under circumstances which make its trustworthiness suspect. We hold it is the duty of the judge of the juvenile court to deny admission into evidence at a certification hearing those statements of a child, obtained in violation of constitutional or statutory rights, which are inadmissible in delinquency or criminal proceedings.
See also Christopher P, n 6 supra, 816 P2d 487 (stating that "[cjonsidering the consequences that evolve from transfer, the distinction between adjudicatory and transfer proceedings blurs in the context of the fifth amendment”).
The waiver decision is a choice to allocate an alleged offender to one of two courts which differ markedly in basic philosophy; in other words, the waiver decision is a choice of philosophies .... In aspiration, at least, the juvenile court is committed to rehabilitation of the offender, while the primary commitment of the criminal justice process lies elsewhere, in the theoretical realms of retribution and deterrence. [White-bread & Batey, supra, p 213.]
See former MCR 5.950(B)(2)(b).
Because the crime charged carried a mandatory sentence, the decision to waive jurisdiction, for all practical purposes, established the sentence that he would receive upon conviction.
See n 9; see also In re Doe, 61 Hawaii 48, 58; 594 P2d 1084 (1979) (stating that "full application of the broad principles announced in Gault would lead to the conclusion that the privilege [against compelled self-incrimination] should apply in such proceedings”).
If the United States Constitution requires the extension of adult criminal protections to juveniles retained in the juvenile system, because the underlying rationale for denying such benefits has, for the most part, little basis in reality, then surely the Constitution must also require the extension of such protections to juvenile waiver proceedings where the juvenile faces the possibility of losing those benefits entirely.
"Because the reformers’ aims were benevolent, their solicitude individualized, and their intervention guided by science, [the early reformers] saw no reason to narrowly circumscribe the power of the state.” Feld, supra, p 150. Consequently, the reformers sought a system that "maximized discretion to provide flexibility in diagnosis and treatment and focused on the child and the child’s character and lifestyle rather than on the crime.” Id. "Discretion was necessary because identifying the causes and prescribing the cures for delinquency required an individualized approach that precluded uniformity of treatment or standardization of criteria.” Id., p 147, n 22. "Because the important issues involved the child’s background and welfare rather than the commission of a specific crime, courts dispensed with juries, lawyers, rules of evidence, and formal procedures.” Id., p 151.
The parens patriae doctrine drew no distinction between criminal and noncriminal youth conduct, a view that supported the Progressive position that juvenile court proceedings were civil rather than criminal in nature. [Feld, supra, pp 148-149.]
Feld, supra, p 272.
One commentator has even analogized the waiver decision to the imposition of the death penalty in adult court:
To transfer a young offender from juvenile to criminal court is clearly not the same thing as executing a convicted murderer. However, considering waiver of serious juvenile offenders as "the capital punishment of juvenile justice” reveals a number of disturbing similarities. Capital punishment in criminal justice and waiver in juvenile justice share four related characteristics: (1) low incidence, (2) prosecutorial and judicial discretion, (3) ultimacy, and (4) inconsistency with the premises that underlie the system’s other interventions. [Zimring, Notes toward a jurisprudence of waiver, printed in Major Issues in Juvenile Justice Information and Training: Headings in Public Policy, p 193.]
The Court was not required to reach this issue because it remanded the case because of procedural error with respect to waiver of jurisdiction. Kent, supra, p 552.