[ADOPTED FEBRUARY 1, 1983; EFFECTIVE JULY 1, 1984]
When the allegations of the petition are so serious and/or the child's age or record is such that transfer of a child to the sheriff to be dealt with as an adult is likely or probable, the court should not hear the case on its merits, but shall proceed to conduct a probable cause hearing only, and announce that intention and purpose when the case is first presented.
(a) Transfer of Jurisdiction of Child to Criminal Court. The court after notice, hearing, and a finding that the criteria for transfer as required by Tenn. Code Ann. § 37-1-134 exist, may transfer jurisdiction over a child to adult criminal court pursuant to Tenn. Code Ann. §§ 37-1-134 and §§ 37-1-159.
(b) Transfer Hearing.
(1) The judge shall conduct a transfer hearing in all cases in which transfer to criminal court is sought under Tenn. Code Ann. § 37-1-134.
(2) At the transfer hearing:
(i) A prosecutor shall represent the state;
(ii) The child shall be represented by an attorney;
(iii) The child may testify as a witness in his or her own behalf and call and examine other witnesses and produce other evidence in his or her own behalf, however no plea shall be accepted by the court; and
(iv) Each witness shall testify under oath or affirmation and be subject to cross-examination.
(3) The same rules of evidence shall apply as are applicable to a general sessions preliminary hearing.
(4) Unless the child appears in any way to be mentally ill or mentally retarded, and unless personally or through counsel, asserts that the child is mentally ill or retarded, it shall be presumed that the child is not committable to an institution for the mentally ill or mentally retarded, and the court may so find. If mental illness is alleged, the court shall order psychological or psychiatric examination at any stage of the proceeding.
(5) If, after considering the evidence including the factors set forth in Tenn. Code Ann. § 37-1-134, the court determines that the criteria for transfer as set forth in Tenn. Code Ann. § 37-1-134 have been satisfied and finds that there are reasonable grounds for transfer as required by Tenn. Code Ann. § 37-1-134, the child may be transferred to criminal court for trial as in the case of adults.
(6) If reasonable grounds are not found, the judge shall deny the motion for transfer and set the petition alleging a delinquent offense for trial on its merits in juvenile court or may immediately proceed to hold the adjudicatory hearing with the consent of the respondent. However, the judge shall not at any time preside over the adjudicatory hearing of a case in which the judge has conducted a transfer hearing, if any interested party objects.
(7) Any order of transfer shall specify the grounds for transfer and set bond if the offense is bailable pursuant to state law.
(c) Appeals. Appeal from an order of transfer shall be by motion for an acceptance hearing in accordance with Tenn. Code Ann. § 37-1-159.
Advisory Commission Comments.
Under Tenn. Code Ann. § 37-1-134 the court must find reasonable grounds to believe that (i) the child committed the delinquent act as alleged, (ii) the child is not committable to an institution for the mentally retarded or mentally ill, and (iii) the interests of the community require that the child be put under legal restraint or discipline. Regarding § 37-1-134, and subsection (b)(4) of Rule 24, it has been held by both the Tennessee Court of Appeals and Court of Criminal Appeals that, although the burden of proof is on the prosecution on such issue, there is a presumption of noncommittability similar to that relating to sanity in criminal trials. Such presumption can be rebutted by evidence introduced by the defendant, and in such event the burden would shift back to the prosecution to persuade the court the child is not committable. See Boyd v. State, Tenn. Crim. App. (December 30, 1979); State v. Miller, Tenn. App. Middle Section (June 25, 1976). The committee suggests, however, that it is good practice in any case for the court to arrange for testing and evaluation, evidence of which may be introduced by either of the parties or the court on the issue of committability.
Regarding the provision in subsection (b)(6) of the rule, prohibiting the judge who conducted a transfer hearing from presiding over the adjudicatory hearing in the same case if any interested party objects, Tenn. Code Ann. § 37-1-134 also prohibits a judge who has conducted a transfer hearing from presiding at a hearing in the same case in criminal court. Such a situation might arise if a judge were sitting specially in criminal court, or if a person who was formerly the juvenile court judge were elected to the criminal court or to any other court which might hear such a case by special arrangement.
In its order filed August 26, 2011, the Supreme Court provided that: “The Advisory Commission on the Rules of Practice & Procedure annually presents recommendations to the Court to amend the Tennessee Rules of Appellate, Civil, Criminal and Juvenile Procedure and the Tennessee Rules of Evidence. In August 2011, the Advisory Commission completed its 2010-2011 term and presented its recommendations to the Court. After considering the amendments recommended by the Commission, the Court hereby publishes for public comment the proposed amendments set out in the Appendix to this order.
“The Court hereby solicits written comments on the proposed amendments from the bench, the bar, and the public. The deadline for submitting written comments is Friday, October 28, 2011. Written comments should be addressed to: Mike Catalano, Clerk, Tennessee Appellate Courts, 100 Supreme Court Building, 401 7th Avenue North, Nashville, TN 37219-1407 and should reference the docket number [M2011-01820-SC-RL2-RL].”
The proposed amendment to Rule 24 promulgated by the Supreme Court in its order dated August 26, 2011, would amend (b)(4) by substituting “intellectually disabled” for “mentally retarded” and amending (c) to read: “(c) APPEALS. Appeals shall be in accordance with Tenn. Code Ann. § 37-1-159.”
The proposed amendments to Advisory Commission Comments would substitute “intellectually disabled” for “mentally retarded” in the original Comments and would add the following 2012 Advisory Commission Comments: “The 2012 amendment amends paragraph (c), deleting language referring to an acceptance hearing, which the statute no longer requires. Due to changes in the pertinent statutory language, the amendment also substitutes the term ‘intellectually disabled’ for the term ‘mentally retarded,’ in both the text of the rule and in the original Advisory Commission Comments.”