holding that the State must produce some evidence to substantiate the serious and violent nature of the charges contained in the information
How later courts described this case
- holding that the State must produce some evidence to substantiate the serious and violent nature of the charges contained in the information
- decision under prior law, Ark. Code Ann. § 9-27-318(e) (Supp. 1997)
Written by the judges who cited it.
The opinion
David Newbern, Justice, concurring. The majority holds
that the State must produce “some evidence to substantiate the serious and violent nature of the charges contained in the information.” That evidence relates to the first of the three factors on which proof is required in a “meaningful” juvenile transfer hearing according to Ark. Code Ann. § 9-27-318 (e) (Supp. 1995). “Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.” Ark. Code Ann. § 9 — 27—318(f) (Supp. 1995). By requiring that “clear and convincing evidence that a juvenile should be tried as an adult,” the General Assembly has obviously placed the burden of proof on the State. See Walker v. State, 304 Ark. 393 , 803 S.W.2d 502 (1991) (Newbern, J., dissenting.) In the Walker case, the opposite conclusion was reached.
The majority now says the State must produce “some evidence” but refuses to recognize the error made in the Walker decision or to tackle again the burden of proof issue. That leaves the trial courts wondering who must produce the “clear and convincing evidence” of the factors supporting trial of a juvenile as an adult. We should hold that, although the juvenile may be the moving party, the statute clearly places the burden of proof on the State. Contrary to the concurring and dissenting opinion of Justice Brown in this case, the State would not be asked to “prove a negative.” Rather, the statute requires “clear and convincing evidence that a juvenile should be tried as an adult,” and that cannot be properly characterized as a negative proposition.
The majority opinion purports to be concerned about a “meaningful hearing.” Any hearing, meaningful or otherwise, in an adversary system of justice must proceed on the basis that one party or the other has the burden of proof with respect to the issue at hand. Although the parties may not have used the term “burden of proof” in their arguments, that is what this case is about. We should not duck the issue, and we should not create a hybrid, unclear situation that we or the General Assembly will have to undo later.