Request By:
Hon. Daniel R. Braun
Attorney at Law
526 Greenup Street
Covington, KY 41011-2594
Opinion
Opinion By: Steven L. Beshear, Attorney General; BY: Mary Dentinger Schoening, Assistant Attorney General
You have asked the Office of the Attorney General for an opinion on whether a finding of probable cause in a juvenile detention hearing may be based in whole or in part on hearsay evidence. Specifically, you ask whether the provisions of RCr 3.14(2) apply to KRS 208.192(4)(a) which requires that a finding of probable cause be made in a juvenile detention hearing. It is the opinion of our office that a probable cause finding based wholly or partially on hearsay evidence is not violative of a juvenile's due process rights.
We base our conclusion upon several considerations. But first we note that although your question was posed in terms of the applicability of RCr 3.14 to the juvenile detention hearing, the essence of your question concerns the admissibility of hearsay evidence to support a probable cause finding in this particular type of juvenile proceeding. We will therefore address the substance of your question.
KRS 208.192(3) provides as follows:
The child shall be afforded all constitutionally guaranteed rights at every stage of the proceedings including, but not limited to notice of the charges, the privilege against self-incrimination, the right to confront and cross-examine witnesses and the right to counsel.
KRS 208.192(4)(a) requires that a finding of probable cause that the child has committed the offense as alleged be addressed at the detention hearing. The statute does not specify the type of proof which may support a probable cause finding except to require that probable cause be established by a preponderance of the evidence. However, pursuant to the provisions of subsection (3), the probable cause finding must be made in compliance with the juvenile's constitutionally guaranteed rights, including the right to confront and examine witnesses.
Pursuant to RCr 3.14(2), a finding of probable cause in a preliminary adult proceeding may be based wholly or partially upon hearsay evidence. By adopting this rule, the Supreme Court of Kentucky has implicitly, but formally recognized that a finding of probable cause based on hearsay evidence does not violate an accused's Sixth Amendment right to confront and cross-examine witnesses. An adult's right to confront witnesses is no less and no more than the same right of a child. Consequently, we conclude that a finding of probable cause for the purposes of a detention hearing (which is not to be confused with an adjudication that the juvenile committed the offense) may be based on hearsay evidence.
We further conclude that hearsay evidence may not, however, support a finding that detention is necessary to assure the safety of the child, protection of the community and the appearance of the child in Court.
We hope that we have sufficiently responded to your question.