On May 17, 2022, the Supreme Court of Ohio, by a vote of 6-1, dismissed this case as improvidently accepted. Justice DeWine dissented and would affirm the judgment of the court of appeals.

“Are you wanting us to find that the rules of evidence apply in transfer hearings or just the right of confrontation, or both?”

Justice Brunner, to counsel for Fuell

“Is the court to believe everything that is said?”

Chief Justice O’Connor to the assistant county prosecutor

On April 26, 2022, the Supreme Court of Ohio heard oral argument in State of Ohio v. Austin M. Fuell, 2021-0794.  At issue in this case is whether a mandatory life sentence with parole eligibility is unconstitutional as applied to young defendants, and whether juveniles have a right to cross-examine and confront witnesses at bindover hearings.

Case Background

In 2019, police accused Austin M. Fuell of murder. Police alleged that Fuell, then 17 years old, had taken part in a home robbery with another person. The incident culminated in the fatal shooting of Jordan Ketring.

The juvenile court held a probable cause hearing to decide whether to bind Fuell over to the Clermont County Court of Common Pleas. The State attempted to show Fuell’s participation in the robbery, either as the shooter or as an accomplice. One witness, Ketring’s girlfriend, said she recognized Fuell despite the perpetrator wearing a mask, based on his eyes and demand for money from Ketring in the exact amount the witness knew Ketring had stolen from Fuell. The State presented evidence that a cell phone it said belonged to Fuell pinged a tower near the scene. But the detective who presented the cell phone evidence at the juvenile hearing admitted that the cell provider, Sprint, could not identify the owner of the phone number. The detective said he concluded the phone belonged to Fuell based on interviews and his discovery of the cell number written on a receipt and attributed to Fuell. The receipt was not submitted as evidence.

The State also presented text exchanges allegedly between Fuell and a friend, Kevin Baird. The exchanges revealed Baird shared an address adjacent to the crime scene, which was located where Ketring was staying that night: his girlfriend’s grandparents’ home. The State did not call the following people as witnesses, preventing defense counsel from cross-examining them at the juvenile hearing: Baird, a records custodian with Sprint, nor the analyst who obtained cell tower data. However, Fuell had an opportunity to call his own witnesses but declined.

The State did call an analyst who relied on toolmark identification — a field whose unreliability and subjectivity has been shown by the President’s Counsel of Advisors on Science and Technology, among other entities, and addressed by the United State Supreme Court. The analyst concluded that a gun confiscated from Fuell’s home had not fired the bullets recovered from the scene. However, months later, police say they discovered a detached 9mm barrel, whose origin was contested. The analyst attached the barrel to Fuell’s gun and concluded, based on questionable methods, that it fired the bullets.

The juvenile court found probable cause for Fuell’s involvement in the robbery, and it bound him over to adult court. Fuell later pleaded guilty to murder under R.C. 2929.02(B)(1). The statute calls for a mandatory sentence of life in prison with the possibility of parole after 15 years.

Fuell appealed to the Twelfth District on several grounds.

The Appeal

The relevant issues before the Twelfth District were twofold: First, Fuell argued that in transferring his case to adult court the juvenile court violated his constitutional rights under the Confrontation and Due Process clauses to cross-examine witnesses. And second, in requiring a mandatory fifteen-years-to-life sentence, Ohio law violated the Eighth Amendment because it does not allow judges to consider youth in sentencing decisions.

In a unanimous decision, the Twelfth District affirmed Fuell’s transfer to adult court and his sentence.  

The Twelfth District held that the confrontation right is a trial right and does not extend to juvenile transfer hearings.

The Twelfth District also found that all due process requirements were met at Fuell’s transfer hearing. Admitting hearsay and other evidence that could raise Confrontation Clause issues, the court held, “is not inconsistent with fundamental fairness and due process of law described in Kent.”

In addition, the Twelfth District held that the state showed probable cause even without the unconfronted evidence, citing the eyewitness testimony and toolmark analysis of the firearm. Thus, any finding of a violation of due process would have been harmless error.

Finally, the Twelfth District upheld Fuell’s sentence, rejecting his argument that R.C. 2929.02(B)(1)’s mandatory life sentence with the possibility of parole after 15 years qualifies as cruel and unusual punishment because a mandatory sentence does not allow a court to consider a juvenile defendant’s youth. However, Fuell failed to object to his sentence on this constitutional ground at the trial level, so the Twelfth District considered whether the claimed constitutional violation by the trial court qualified as plain error and held that it did not.

Read the oral argument preview of the case here.

Key Statutes and Precedent

U.S. Const. Amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law.”)

U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him . . .”)

U.S. Const. Amend. VIII (“Excessive bail shall not be required, . . . nor cruel and unusual punishments inflicted.”)

U.S. Const. Amend. XIV (“No state shall . . . deprive any person of life, liberty, or property, without due process of law. . .”)

R.C. 2152.12(A)(1)(a) (if a delinquency complaint is filed for an act that would be murder or aggravated murder if committed by an adult, the court shall transfer the case to adult court if the juvenile is 16 or 17 and there is probable cause to believe the juvenile committed the offense.)

R.C. 2903.02 (Ohio statute criminalizing homicide)

R.C. 2929.02(B)(1) (“. . .[W]hoever is convicted of or pleads guilty to murder in violation of section 2903.02 of the Revised Code shall be imprisoned for an indefinite term of fifteen years to life.”)

R.C. 2929.03 (“(1) Except as provided in division (A)(2) or (H) of this section, the trial court shall impose one of the following sentences on the offender: (a) Life imprisonment without parole; (b) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty years of imprisonment; (c) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment; (d) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving thirty full years of imprisonment. . .”)

Henderson v. Maxwell, 176 Ohio St. 187 (1964) (confrontation right “relates to the actual trial for the commission of the offense and not to the preliminary examination where it is determined whether the accused is to be bound over to the Grand Jury.”)

Pointer v. Texas, 380 U.S. 400 (1965) (“[T]o deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.”)

Kent v. United States, 383 U.S. 541 (1966) (asserting that “there is no place in our system of law for reaching a [juvenile transfer] result of such tremendous consequences without ceremony—without hearing, without effective assistance of counsel, without a statement of reasons” and that transfer hearings in juvenile court are “critically important.” Also stating that while “the Juvenile Court judge may, of course, receive ex parte analyses and recommendations from his staff, he may not, for purposes of a decision on waiver, receive and rely upon secret information, whether emanating from his staff or otherwise.”)

Chapman v. California, 386 US 18 (1967) (holding that, where it’s impossible to say evidence violating defendant’s constitutional rights did not contribute to convictions, violation was not harmless.)

Barber v. Page, 390 U.S. 719 (1968) (“The right to confrontation is basically a trial right.”)

Goldberg v. Kelly, 397 U.S. 254 (1970) (“In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”)

State v. Carmichael, 35 Ohio St. 2d 1 (1973) (holding use of hearsay evidence without cross-examination of declarant did not violate juvenile’s rights at bindover hearing.)

Gerstein v. Pugh, 420 US 103 (1975) (holding the “full panoply of adversary safeguards,” including confrontation right, are not essential for a probable cause determination for detention purposes.)

Breed v. Jones, 421 U.S. 519 (1975) (holding that prosecution of juvenile in adult court, following juvenile court adjudicatory proceeding, violated the Double Jeopardy Clause of the Fifth Amendment and reasoning that the juvenile “was subjected to the burden of two trials for the same offense; he was twice put to the task of marshaling his resources against those of the State, twice subjected to the ‘heavy personal strain’ which such an experience represents.”)

Mathews v. Eldridge, 424 U.S. 319 (1976) (“. . .identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”)

Schall v. Martin, 467 U.S. 253 (1984) (not mentioning confrontation right in discussion of due process rights afforded accused in juvenile proceedings.)

State v. Self, 56 Ohio St.3d 73 (1990) (“Section 10, Article I [of the Ohio Constitution] provides no greater right of confrontation than the Sixth Amendment.”)

State v. Iacona, 93 Ohio St.3d 83 (2001) (bindover hearing in juvenile court need not find whether the accused is guilty but “basic principles of fairness and due process . . . require that counsel for a juvenile be provided access to information possessed by the state that might tend to disprove probable cause at the bindover stage.”)

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (“Like expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination.”)

Miller v. Alabama, 567 U.S. 460 (2012) (“By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory-sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.”)

State v. Hood, 2012-Ohio-6208 (admission of phone records that had not been authenticated as business records was constitutional error under the Confrontation Clause.)

State v. Ricks, 2013-Ohio-3712 (“Whether a Sixth Amendment error was harmless beyond a reasonable doubt is not simply an inquiry into the sufficiency of the remaining evidence. Instead, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”)

State v. Long, 2014-Ohio-849 (failing to consider youth’s age in sentencing for aggravated murder under R.C. 2929.03(A) constituted violation of Eighth Amendment.)

In re B.W., 2017-Ohio-9220 (7^th Dist.) (holding Confrontation Clause does not apply to admissibility of evidence issues at juvenile transfer hearings.)

State v. Anderson, 2017-Ohio-5656 (“A hard 20 year life sentence does not irrevocably adjudge a juvenile offender unfit for society. Rather, in line with the concerns expressed in Graham, it gives the offender a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ by permitting parole after the mandatory 20-year minimum prison term is served.)

State of Ohio v. E.T., Jr., 2019-Ohio-1204 (affirming finding of probable cause by juvenile court based on single eyewitness only “50 percent” certain of the identification. Eyewitness was subject to cross-examination.)

State v. Garner, 2020-Ohio-4939 (holding defendant did not have confrontation right during juvenile bindover hearing because it was not a trial and defendant’s liberty interest was not yet at stake.)

State v. Patrick, 2020-Ohio-6803 (holding that “a trial court must separately consider the youth of a juvenile offender as a mitigating factor before imposing a life sentence under R.C. 2929.03, even if that sentence includes eligibility for parole” and “we conclude that the difference between a sentence of life in prison with parole eligibility after a term of years and a sentence of life without the possibility of parole is not material for purposes of an Eighth Amendment challenge by an offender who was a juvenile when he or she committed the offense.”)

Fuell’s Propositions of Law Accepted for Review

First Proposition of Law

Juvenile offenders have a state and federal due process right to cross-examine witnesses whose hearsay statements are presented to provide probable cause for mandatory transfer to adult court.

Second Proposition of Law

Under Miller v. Alabama, State v. Long, and State v. Patrick, R.C. 2929.02(B)’s mandatory fifteen-years-to-life sentence for murder is unconstitutional as applied to juvenile offenders because it does not permit judicial consideration of youth at sentencing.

At Oral Argument

Arguing Counsel

Timothy B. Hackett, Assistant State Public Defender, Columbus, for Appellant Austin M. Fuell

Nick Horton, Assistant Prosecuting Attorney, Clermont County, for Appellee State of Ohio

Fuell’s Argument

The law is clear that juvenile transfer proceedings are critically important due process hearings that separate a juvenile rehabilitative sentence on the one hand from a lifetime in adult prison on the other hand. What should be equally clear are the dangers of hearsay information and the offsetting values of questioning those people whose statements supposedly put a client at the scene of a crime. Given the important interests involved in a transfer hearing, this Court should make it abundantly clear that transfer is not the one way hearing the state continues to insist that it is. The Court should hold that due process requires a flexible conditional right to confront and cross examine witnesses at these critically important transfer hearings. Under the due process clause, which is intentionally flexible because of the unique position of the juvenile court, this Court should hold that prosecutors cannot rely on the statements of nontestifying witnesses in support of transfer, at least absent a showing of good cause as to why those witnesses should not be brought in. The standard of proof at the transfer hearing is probable cause.

This Court has not ruled on this due process question and throughout the state courts apply these rules differently.  In this case the juvenile court judge said on the record that hearsay was not allowed. But there was hearsay such as the BCI report that was introduced and  text message photographs from a man named Kevin Baird, that were introduced and formed the core of the state’s case as to where Mr. Fuell was on the night in question. It was introduced as surrogate testimony of a detective witness. Although such witnesses can be cross examined at trial, that’s too late. By the time of trial, the liberty deprivation has already occurred. So, the due process protection must apply at this transfer hearing.

A grand jury proceeding is not analogous here. A better analogy is to a preliminary hearing in adult court which is a judicial hearing, not a unilateral cursory proceeding where defendants do not have a right to counsel to be present to contest the state’s evidence. A grand jury proceeding is not a judge hearing whereas in a transfer hearing it is the duty of a judge to assess the credibility of the witnesses, and to ensure that the state has presented sufficient credible evidence to raise proof beyond a mere suspicion. This is an adversarial proceeding under this Court’s precedent. The juvenile was represented by counsel, but the attorney only had the opportunity to cross examine the surrogate witness who was presenting the hearsay statements of other witnesses. Defense counsel could only cross examine those witnesses presented by the state.

The question of whether the cross examination of a state’s witness during a mandatory bindover hearing is a constitutional right is an issue of first impression for this Court. That issue must be decided in three parts. The first is what these transfer hearings look like. The second is to be able to get to the source of statements that place a client at the scene of a crime. The third is how little this rule will actually impact county prosecutors. This will in no way grind the system to a halt. And for constitutional violations, the question is not the sufficiency of the remaining evidence, but rather whether the offending evidence contributed to the court’s decision. There’s no question that in this case it did. Also, in this case the parties were operating under the assumption that the rules of evidence applied. While the Court does not need to say this is necessarily so across the boards, what is crucial is that children have a constitutional right, as a matter of procedural due process, to cross examine witnesses whose statements are used.  

The defendant respectfully disagrees that its position would cause bindovers to become mini trials at the juvenile court level. This would impose little more than what is already required. Because this is not proof beyond a reasonable doubt, and instead, is probable cause, the government does not have to fully try their case, they don’t have to preview their case or bring in every one of their witnesses to meet the less demanding standard. But if they do present statements from witnesses, then due process does require those witnesses to be present so that information can be tested and at the very least, verified. With respect to the BCI analyst, the defense would want to know why it was that the BCI analyst assigned this cellphone number to Austin Fuell despite the fact that the cell carrier itself could not identify the owner of the phone. So, circumstances under which these statements are made needed to be probed for credibility if the juvenile court’s duty is to ensure that the evidence presented is in fact credible. If the state wants to rely on statements made by witnesses, those witnesses must be present.

As far as the sentencing issue goes, even though the statute has been amended, while the amendments are favorable to juveniles the amendments are still insufficient to address the constitutional deficiency here because even under the amended statute there is only one sentence for this offense. The remedy is trickier. The answer is the same as any other time this Court finds that a statute is unconstitutional as applied, and that is to declare the statute unconstitutional and for the legislature to fix it. In the interim, the most workable solution in this case is a downward departure to the next available range which is the F1 range of 3-11 with this 15-life remaining the possibility of a maximum sentence. This would not inhibit courts from imposing severe sentences where necessary which was clearly the legislature’s intent. The defendant concedes that the constitutionality of the sentence was not raised at trial, but the decision in Patrick was not out at the time of sentencing. It was released while the direct appeal was pending, before Fuell’s  conviction became final. And review of the as-applied constitutional issue should be de novo.

State’s Argument

This case is about applying longstanding interpretations of the 8^th and 14^th amendments.  The Defendant was bound over to adult court where he pled guilty to murder and was sentenced to 15 years to life in prison. This Court should affirm because the juvenile defendant was not due full confrontation rights in the mandatory bindover hearing and the 15-life sentence did not violate the 8^th amendment.

Kent v. United States talks about due process and fair treatment but then says it is not necessary to apply all the processes that are due in a criminal trial to a criminal defendant or even in an administrative hearing. At the time what was due for an administrative hearing depended on the type of hearing it was. Looking at additional case law, where there is an adjudicatory type of hearing, where there is some finality to the right deprived, then there is a right to confrontation, and cross examination, but when dealing with a general fact-finding investigation, then there is not that right to confrontation and cross examination. Kent whittles this down even further and says in that case what was used was ex parte analyses and staff recommendations, and the Court said those can be used but must be provided to counsel. Ex parte analyses and staff recommendations are really the antithesis of cross examination and confrontation, so all indications from Kent are that there are not confrontation rights. We’re not talking about cross examination because the defendant had the opportunity to cross examine the witnesses at the hearing, and we’re not talking about a portion of confrontation where the defendant can meet the accusers face to face because again, he did have the opportunity to cross examine the state’s witnesses. What we are talking about is this limited right to be free from otherwise testimonial evidence where the witness does not testify. So, there are a couple of ways of looking at this hearing. But no matter how you look at it, there is no reason to believe that there is a full right to confrontation.

If we look at this as a probable cause hearing, which it is, or as a typical preliminary hearing, this Court and the U.S. Supreme Court have routinely held that the full rights of confrontation and cross examination are not required in these types of hearings. Even if we give this special consideration as a juvenile hearing, we need look no further than Schall v. Martin which dealt with juvenile pretrial detention, and says that while the state has to put on evidence, the defendant is allowed to cross examine those witnesses. But it says absolutely nothing about confrontation. When the U.S. Supreme Court wants to talk about confrontation, it speaks about confrontation, but it does not in Schall. But even if we look at this more as a bindover hearing in general, and we say the same rights apply in the probable cause hearing as they do in the amenability hearing, we still don’t necessarily have the right to full confrontation.

In Goldberg v. Kelley there was finality to the rights deprived. In this mandatory bindover case, there is no scenario where the juvenile –unless they ultimately plead guilty—will be sentenced to adult court punishment without a finding of probable cause. Whether it is at the initial mandatory bindover hearing, or later in trial, they will have the right to confront those witnesses-and this is why under the second prong of the Mathews test, there is almost a zero risk of erroneous deprivation because they get the second bite at that apple. That may be a little bit different with regard to the amenability hearing because the juvenile court is in the unique position to determine that.

Credibility generally plays little part in a probable cause determination. It is very difficult to undermine the probable cause finding. If the defendant’s cross examination is strong enough to undermine probable cause, then there is no doubt it would be strong enough to undermine beyond a reasonable doubt. The closer we get to these adjudicatory type hearings, the closer we get to potential double jeopardy problems. There is plenty of opportunity to confront this evidence when it comes to trial because this issue of probable cause is simply a gatekeeping function to determine where the juvenile will be either adjudicated or prosecuted.

In this case the only person where there was a real credibility issue was Lacey, one of the victims in the case. There was no issue raised about the credibility of the BCI agent. On the one issue with credibility in this case there was a full right to cross examine and that was the eyewitness. The defendant could have brought in an expert, as he alleged in his ineffective assistance claim, to counter the state’s evidence but in the probable cause hearing it is not a comparison of the defense theory and the prosecution theory.  It is whether or not the state has presented enough credible evidence to support a probable cause finding.

The standard of review here should be plain error because the defendant had the ability to raise the constitutional question in the first instance in the trial court even though the defendant didn’t have the benefit of Patrick.  Patrick was based on prior decisions from the U.S. Supreme Court.  But the constitutional issue was never raised. Because the sentence provides the juvenile with a meaningful opportunity for release, we ask this court to affirm.

What Was On Their Minds

Analogy to Other Types of Hearings

Aren’t grand jury proceedings analogous, asked Justice DeWine? The standard of proof is probable cause. Someone is deprived of liberty once they are indicted, right? So, what’s the difference?

Bindover Hearing

What is a flexible conditional right, asked Chief Justice O’Connor? The juvenile is represented, correct? And the attorney can cross examine the state’s hearsay witnesses? There’s caselaw from Ohio that says that the hearing must “measure up to the essentials of due process and fair treatment.” What does that mean? If the cross examination demonstrates the total lack of credibility as to what the state is relying on, how else would the state get a bindover? Is the state almost saying that truth doesn’t matter at a bindover, as long as there is sufficient voicing of facts, whether they are true or not, the court can consider them and bind over a child? Or credibility does matter, so credibility can be tested on cross examination? Is the court to believe everything that is said?

Is the standard probable cause, asked Justice Fischer? Not good cause? Probable cause? During probable cause hearings don’t we allow hearsay? If there is no hearsay, what is the defendant’s complaint? Is there any U.S. Supreme Court decision or decision from our Court saying cross examination of a state’s witness during a mandatory bindover hearing is a constitutional right?

Even if we agree with the defense, how is this not harmless error asked Justice DeWine? There is plenty of evidence of probable cause—there is Lacey saying she witnessed the shooting, she recognized the shooter’s eyes and voice, she noted he demanded the same dollar amount as had been stolen. That by itself would be enough to establish probable cause. So why does this even matter? If it’s clear the court would have made the same decision because there was evidence of probable cause without it, then it didn’t contribute to its decision, he added.

Confrontation and Cross Examination Rights

Does the defendant want the Court to find that the rules of evidence apply in transfer hearings or just the right of confrontation, or both, asked Justice Brunner?

Couldn’t the detective witnesses be cross examined at trial, asked Justice Fischer? Is the right to cross examine witnesses whose statements are used a constitutional right?

Would allowing these rights cause these to become mini trials at the juvenile court level, asked Justice Donnelly?

Wouldn’t the U.S. Supreme Court case in Goldberg v. Kelly be instructive here where the Court said there is a right to confrontation and cross examination found outside the criminal context in a non- adjudicatory hearing, asked Justice Stewart? She added that if the evidence presented during the probable cause determination is made less credible or shaky by cross examination or confrontation, then the juvenile never has to go through the rest of the proceedings.

The Evidence

If the other evidence was sufficient to find probable cause by itself, then how is it not harmless error, asked Justice DeWine? The standard is whether or not if you exclude that evidence the trier of fact would have found the same thing. If the court would have made the same evidence decision without it—it didn’t contribute to its decision by definition.

The testimony of Mr. White who was from BCI, essentially was that the barrel of this 9mm lugar could be placed on a different frame and if it was placed on a different frame with a different slide, the markings would come out the same, noted Justice Brunner. Was that enough that other evidence based on hearsay didn’t matter because this was sufficient and reliable enough for the court to reach its determination that resulted in a mandatory bindover? She noted that the validation of the testing was done not by an external agency proficiency test but by someone else in the agency. Do we need to be concerned about that? Should the trial court have been concerned about that? She also noted that Mr. Fuell did not have access to the records from the cell tower.

The Sentence

As far as consideration of the youth of the offender at the time of sentencing, the statue has been amended since the defendant was convicted and sentenced, noted Justice Brunner. Is consideration of youth now appropriate in the statute as amended?  If the Court agrees with the as applied constitutional challenge, how should the defendant be sentenced if we were to remand?

Was the constitutionality of the sentence raised at trial, asked Justice Fischer? Or are we at plain error?

How it Looks from the Bleachers

To Professor Emerita Bettman

The Chief and Justices Brunner and Stewart have been very protective of the rights of juveniles, and probably consider the bindover hearing far more consequential than the state suggested. If they can pick up Justice Donnelly’s vote that majority will probably find a right of confrontation at bindover hearings.

To Student Contributor Max Londberg

Justices DeWine and Fischer indicated their support for the State, while Chief Justice O’Connor and Justices Brunner and Stewart indicated support for Fuell. I predict Fuell succeeds on both issues raised.

Justice DeWine signaled he believes that, even if evidence presented at Fuell’s transfer hearing violated his constitutional rights, that harmless error would result, as enough proper evidence existed. Timothy B. Hackett, representing Fuell, stated Justice DeWine’s interpretation of harmless error doctrine for constitutional violations was erroneous. Hackett cited Chapman and Ricks. Justice DeWine also implied that because transfer hearings are analogous to grand jury proceedings, in that they both involve the probable cause standard, the former does not deserve protections against hearsay, as is true for the latter. Hackett argued the two proceedings are not analogous, as only transfer hearings are adversarial, with a judge weighing witness credibility, and with Brady discovery rights inhering in the accused.

Chief Justice O’Connor indicated support for Fuell’s position in an exchange with Nick Horton, the State’s attorney. The Chief asked if a decision to bind a juvenile to adult court could occur when the state’s case completely lacks credibility. When Horton answered that it could not, O’Connor stated that “what I heard you say is that, almost, truth doesn’t matter at a bindover. . .?” Justice Brunner also indicated her support by asking Hackett what the proper remedy should be. She also challenged Horton’s contention that only the eyewitness evidence in the case was questionable, pointing out the cell-tower evidence that Fuell claimed was hearsay. Finally, Justice Stewart asked Horton about language from the United States Supreme Court asserting that there is a right to confrontation in non-adjudicatory hearings.