Carton, Kole and Larner. The opinion of the court was delivered by Larner, J.A.D.
This appeal presents for review the determination of the Bergen County Juvenile and Domestic Relations Court that three juveniles over the age of 16 charged with homicide should be tried as adults pursuant to the provisions of N.J.S.A. 2A:4-48 and R. 5:9-5(b). The juveniles assert several grounds in support of their contention that the waiver of jurisdiction and transfer for adult prosecution constituted reversible error.
The first contention asserted by appellants is that the nature of the transfer hearing deprived them of due process of law in two respects: (1) admission in evidence of statements of W.W. and D.C.*fn1 obtained by police without Miranda warnings, and (2) infringement of their right of confrontation because of their inability to cross-examine the declarants whose statements inculpated the other juveniles.
The statement of W.W.*fn2 may or may not be excluded as to him at a plenary trial wherein his guilt would be at issue, depending upon the court's finding as to voluntariness, sufficiency of the Miranda warnings and the effectiveness of waiver of counsel. See Michigan v. Tucker , 417 U.S. 433, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974); State v. Graham , 59 N.J. 366 (1971). Similarly, the admissibility of the statements of W. and C. against the other defendants at a joint trial might be legally suspect on the basis of the right of confrontation under the Sixth and Fourteenth Amendments and the problems explored in Burton v. United States , 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), and State v. Young , 46 N.J. 152 (1965).
However, these constitutional guarantees arising from the question of admissibility of evidence at a trial on the merits do not apply to a preliminary jurisdictional hearing which simply determines whether the accused is to be tried in one court or another. Such a hearing is a preliminary proceeding to determine the propriety of transfer under the statutory criteria. The portion of the hearing relating to probable cause can be analogized to the probable cause hearing prior to indictment or the determination of a grand jury to indict. In either of these instances, rules of evidence and constitutional guarantees involving the trial process are inappropriate. Since the result of a preliminary judicial proceeding as involved herein does not adjudicate the guilt of the accused, the type of permissible evidential material used by the court in reaching its conclusion is not circumscribed by the limited evidential rules applied at trial. See State v. Ferrante , 111 N.J. Super. 299 (App. Div. 1970); State v. Price , 108 N.J. Super. 272 (Law Div. 1970). See also Fed. R. Crim. P. 5.1(a); James v. State , 254 So. 2d 838, 839 (Fla. Dist. Ct. App. 1971), cert. den., 409 U.S. 985, 93 S. Ct. 334, 34 L. Ed. 2d 249 (1972).
The demands of due process at such a preliminary stage of the proceedings are no more extensive than to afford the accused a fair hearing where he is represented by counsel and has an opportunity to be heard and present evidence. See Kent v. United States , 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). Such rights are guaranteed in this State with respect to a transfer hearing. State v. Van Buren , 29 N.J. 548 (1959); R. 5:9-5(b); R. 5:3-3(a). Otherwise, the full panoply of rules and rights guaranteed to defendants at trial by virtue of the several constitutional amendments urged by defendants have no relevancy or application. Thus, we find no basis for the assertion that defendants were deprived of due process of law.
With the disposition of the foregoing constitutional issues we next consider the trial judge's finding that the statutory criteria were satisfied so as to warrant the order of
transfer. The pertinent portion of the applicable statute provides:
The juvenile and domestic relations court may, without the consent of the juvenile, waive jurisdiction over a case and refer that case to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing that:
a. The juvenile was 16 years of age or older at the time of the charged delinquent act;
b. There is probable cause to believe that the juvenile committed a delinquent act which would constitute homicide, treason if committed by an adult or committed an offense against the person ...