This case requires us to consider an intricate mix of factual and constitutional issues surrounding waiver procedures for juveniles pursuant to the provisions of the Probate Code1 and related Michigan Court Rules.2 The primary question is whether the full panoply of protections provided by the Fifth and Sixth Amendments of the United States Constitution apply to the dispositional phase, as well as to the adjudicative phase, of a juvenile waiver hearing. We hold that the legislative purpose and the underpinnings of the Probate Code mandate the conclusion that a probate court’s discretion at the dispositional phase of a waiver hearing remains unfettered by certain evidentiary requirements recognized in criminal proceedings and already extended to the adjudicative phase of a waiver hearing. Accordingly, we reverse the decision of the Court of Appeals and remand the case for consideration of the remaining issues raised by defendant._

*205I

FACTS AND PROCEEDINGS

On January 6, 1988, defendant was arrested3 in a drug raid conducted by the City of Sterling Heights Police Department and charged with possession of more than 650 grams of a substance containing cocaine,4 delivery of more than 225 but less than 650 grams of a substance containing cocaine,5 conspiracy to induce a minor to commit a felony,6 and bribery of a public official.7 We turn first to the facts at issue beginning with the period immediately following defendant’s arrest.

On the way to the police station, Officer Blasky testified that he informed defendant and his brother of their Miranda8 rights. He also testified that he told defendant and his brother to refrain from talking to the officers because "it wasn’t our job to interview them,” and he warned them to be quiet when the brothers began talking to each other. According to Officer Blasky, defendant and his brother, who are of Arabic descent, seemed proficient in English, were not under the influence of any intoxicants, and appeared to understand their Miranda rights.

Shortly before arriving at the police station, the officers discovered that defendant was a juvenile.9 Therefore, defendant was taken to the juvenile *206bureau area of the station to await transfer to the youth home by a juvenile court officer.10

Officer Blasky testified that while waiting for the juvenile court officer, defendant boasted about his involvement in other drug deals, stated that he had been selling drugs for a few years, and claimed to have been selling up to twenty kilograms of cocaine per month. Officer O’Connor entered the room and told Officer Blasky and defendant that they had discovered a safe in defendant’s bedroom. Officer Blasky asked defendant for the combination to the safe to make things easier because the police were already in the process of securing a search warrant and would gain access to the safe one way or another. Defendant began to cry, stated, "I’m dead,” but ultimately gave police the combination to the safe.11

Shortly thereafter, Officer Brooks, the youth officer, arrived, and Officer Blasky left. Officer Brooks testified that he advised defendant of his Miranda rights, advised him not to discuss the evening’s events until a parent or attorney was present, and asked if he understood his rights. Defendant acknowledged that he did, but nevertheless continued to make incriminating statements and was again warned not to speak without a parent or attorney present.

While in Officer Brooks’ custody, defendant was permitted to make a phone call to his parents.12 Officer Brooks testified that following the phone call defendant began asking if Brooks was the person who would decide whether defendant would *207be detained overnight or released. Defendant then allegedly offered Officer Brooks a new pager, followed by offers of increasing amounts of money.13

Officer Dodt, who was assigned to drive defendant to the youth home, testified that defendant’s conversation regarding the events of the evening included whether defendant would "flip himself over” and make a deal with the detectives to incriminate defendant’s supplier, how much defendant made each month together with any commissions for selling cocaine over a certain price, the fact that defendant ordinarily sold to blacks in the City of Detroit, and that defendant went through with the sale that led to his arrest against his better judgment because he had incurred a gambling debt of approximately $11,000 the day before and was in need of money. Officer Dodt also testified that defendant expressed a desire to make $200,000 or $300,000, then "get out and live.”14

Pursuant to the prosecutor’s motion to waive jurisdiction over defendant for trial as an adult,15 the probate court conducted bifurcated hearings early in February and March of 1988. At the probable cause phase of the waiver hearing (phase i), the prosecution offered the testimony of Officer Putnam, his supervisor, Officer Cleland, and another witness,, all of whom had been involved in the drug raid. The prosecution also offered the testimony of Officer Brooks relating to the bribery charge. None of Officer Brooks’ testimony involved *208any admissions or confessions allegedly made by defendant. At the close of the phase i segment of the waiver hearing, the probate court concluded that there was probable cause to believe that defendant committed the crimes charged as required by MCL 712A.4(3); MSA 27.3178(598.4X3) and MCR 5.950(B)(1).

Several weeks later, the court conducted a hearing on the issue whether defendant should be treated as a juvenile or as an adult under the criteria set forth in MCL 712A.4(4); MSA 27.3178(598.4)(4) and MCR 5.950(B)(2) (phase n). At the phase ii hearing, the probate court permitted testimony of the probate court psychologist16 and Officers Blasky, Brooks, and Dodt concerning statements allegedly made by defendant after his arrest. The court’s basis for admissibility was "that we’re in phase ii here, to determine . . . [respondent’s] pattern of living, his character, and that sort of thing” rather than in the phase i probable cause stage. The court also listened to testimony of several witnesses who were alleged to have purchased narcotics from defendant in the past and from Lieutenant Tuttle of the Michigan State Police regarding the likely prior involvement in the drug world of someone entrusted to sell three kilograms of cocaine.

Defendant offered testimony of a character witness as well as the findings of his own psychologist. Following the phase ii hearing, jurisdiction over defendant was waived.

Defendant appealed the waiver decision in the *209Macomb Circuit Court.17 The circuit court concluded that there was ample evidence to support the waiver. However, the Court of Appeals, relying on In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967), reversed, holding that the constitutional rights applicable in criminal proceedings extended to phase n, the dispositional phase of a waiver hearing.18 Moreover, the Court, drawing upon a trilogy of United States Supreme Court cases,19 concluded that a waiver of this nature is tantamount to an enhancement of defendant’s sentence, and thus required application to a phase ii waiver hearing of the same constitutional protections found in criminal trials.

On November 17, 1992, this Court granted leave to appeal.20

II

HISTORICAL OVERVIEW

A

At common law, a child over the age of fourteen was presumed to have the mental capacity to form the mens rea required for specific intent crimes.21 *210As a result, juveniles from the age of fourteen could receive the same penalties as adult criminals.22 This criminal accountability of juveniles extended to the highest level of punishment possible, capital punishment.23

Near the end of the nineteenth century, this country experienced a radical change in attitude regarding the treatment of children generally and in particular those caught up in the juvenile justice system. The exponents of what was called the Progressive Movement24 began focusing on rehabilitation rather than on retribution, pursuant to the doctrine of parens patriae.25

The first true juvenile court was established by the Illinois Legislature in 1899.26 The enabling legislation provided that the act "be liberally construed to the end that its purpose may be carried out, to wit: That, the care, custody and discipline of a child shall approximate as nearly as may be that which should be given by its parents . . . .”27 *211Several states quickly followed Illinois’ lead by enacting similar legislation, and by 1928, all but two states had adopted a juvenile court system.28

For nearly three quarters of a century, the laws and procedures surrounding juvenile courts remained virtually unchallenged and unchanged. However, in 1966, the United States Supreme Court in Kent v United States, 383 US 541, 556; 86 S Ct 1045; 16 L Ed 2d 84 (1966), concluded that waiver procedures for juveniles to criminal courts were "a 'critically important’ action determining vitally important statutory rights of the juvenile.” The Kent Court29 extended to juveniles several constitutional rights recognized in adult criminal trials. A year later in Gault,30 the Court stated that Fifth and Sixth Amendment rights recognized in adult criminal proceedings applied to juvenile proceedings.31_

*212This body of case law led to a significant increase in judicial and legislative action regarding juvenile justice procedures.32 Particularly noteworthy is the fact that judicial extension of constitutional protections in juvenile proceedings led to legislative restriction of the sentencing discretion of the probate courts.33 In short, the "constitutional domestication”34 of the juvenile justice system prompted sentencing uniformity for more serious crimes via legislative enactment at the expense of sentencing flexibility.

*213B

Michigan’s history regarding juvenile justice procedures parallels the national trend. The first provision for the establishment of probate courts in Michigan is found in the Constitution of 1835.35 By 1850, the Michigan Constitution included a provision for the probate courts jurisdiction, to wit: "The jurisdiction, powers and duties of such courts shall be prescribed by law.”36 This constitutional empowerment has remained virtually unchanged.37 Thereafter, the powers and duties of the probate courts were defined by the Legislature.38

The Michigan Legislature first authorized probate court jurisdiction over juveniles in 1905.39 What would be considered Michigan’s first waiver statute was passed in 1907.40 In 1915, the Legislature passed a law requiring that juveniles who *214were arrested be taken immediately before the probate court.41 In 1939, the Legislature made specific provision for waiver of jurisdiction over any child above the age of fifteen "charged with a felony which involves a maximum penalty of imprisonment for life or a term of more than 5 years”, upon full investigation into the circumstances following a motion for waiver filed by the prosecutor.42 By late 1988, legislation was passed creating a class of cases of a violent or drug-related nature for which waiver to an adult criminal court was automatic.43

III

ANALYSIS

It is against the foregoing historical backdrop that we consider defendant’s argument that the waiver procedures provided in MCL 712A.4(3), (4); MSA 27.3178(598.4)(3), (4) and MCR 5.950(B) are unconstitutional. According to defendant, waiving probate jurisdiction over a minor is the harshest penalty that could be imposed on a juvenile, who could otherwise expect to be released at age nineteen, but for the waiver.44_

*215Defendant also notes that juvenile waiver procedures are a "critical phase” of the judicial process, so that certain rights, such as the right to counsel and the right against self-incrimination, must be recognized. See Kent, supra at 553; Gault, supra at 30-31. Defendant then directs our attention to Estelle v Smith, 451 US 454, 462-463, 469-471; 101 S Ct 1866; 68 L Ed 2d 359 (1981), wherein the United States Supreme Court ruled that all Fifth and Sixth Amendment rights recognized in criminal trials applied to the sentencing phase of Texas’ bifurcated trial procedure in capital punishment cases.45

The Court of Appeals treated Kent, Gault and Estelle as dispositive. However, we conclude that the Court’s analysis of these cases is flawed, and thus it erred in reversing the probate court’s decision to waive jurisdiction over defendant. A careful review of the proceedings in these cases is instructive.

In Kent, jurisdiction over a sixteen year old who was charged with housebreaking, robbery, and rape was waived by the District of Columbia Juvenile Court. The defendant was arrested and questionéd for approximately seven hours, during which time he apparently admitted involvement in the offense and volunteered information concerning similar offenses. After overnight detention in a juvenile home, the defendant was released to police for another full day of interrogation and then returned to the juvenile home where he remained for a week without arraignment or determination of probable cause._

*216No hearing was held on the defendant’s motions to retain jurisdiction over him, and the court’s waiver order was made without any findings or recitation of reasons for the waiver decision. After failing to secure a reversal through the District of Columbia’s appellate process, the United States Supreme Court granted certiorari.46 A five-justice majority held:

[The District of Columbia waiver statute] assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a full investigation.”

We do not consider whether, on the merits, [the defendant] should have been transferred; but there is no place in our system of law for reaching a result of such tremendous consequences without ceremony — without hearing, without effective assistance of counsel, without a statement of reasons. [383 US 553-554. Emphasis added; citation omitted.][47]

In Gault, a fifteen-year-old boy was adjudicated a delinquent for making lewd or indecent remarks to a female neighbor by telephone. The boy was arrested and taken to a detention home. His detention pending a hearing had been imposed entirely *217as a result of statements made by him to the juvenile court judge during proceedings at which the complainant was absent, no testimony was given, and no record was made. After a hearing that shared many of the same infirmities as the detention hearing, the defendant was committed to the State Industrial School until the age of majority.48 Id. at 4-8.

The United States Supreme Court noted that the Arizona Supreme Court had already recognized that due process of law was a constitutional prerequisite to a finding of delinquency that entailed commitment to an institution. Id. at 12. The majority stated:

We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child. [Id. at 41.][49]

Finally, in Estelle, the United States Supreme Court was asked to review the constitutionality of using psychiatric testimony at the sentencing phase of a bifurcated, capital murder trial where *218the defendant and his counsel were not warned beforehand that his statements could be used in the prosecution’s case in the death penalty phase. The prosecution asserted that the evidence was admissible because it was not offered to establish guilt, which had already been decided against the defendant. Finding for the defendant, the Supreme Court concluded:

We agree with the Court of Appeals that respondent’s Fifth Amendment rights were violated by the admission of Dr. Grigson’s testimony at the penalty phase.

A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. [Estelle, supra at 468 (opinion of Burger, C.J.)[50]

On the basis of the foregoing, it is clear that Kent, Gault, and Estelle are significantly distinguishable from the instant case and do not support the conclusion reached by the Court of Appeals in reversing, the probate court’s waiver decision. The *219Kent holding requires a degree of procedural regularity in juvenile waiver hearings that comports with "the basic requirements of due process and fairness” and "full investigation.” Kent, supra at 553. Accordingly, juvenile courts are required to establish hearing procedures, afford the right to counsel, and set forth their findings to avoid arbitrariness and the inability to review waiver dispositions for lack of clear findings. Gault assured a juvenile the right to counsel at waiver proceedings, including the right to proper notification of this right and the right to appointment of counsel in appropriate circumstances. Neither Kent nor Gault extended these constitutional protections to the dispositional phase of the waiver hearing51 that focuses on balancing the interests of both the juvenile and the public.

In Estelle, the United States Supreme Court extended Fifth and Sixth Amendment rights to psychiatric examinations used at the penalty phase of a capital murder case to enhance the sentence after guilt had been established. In contrast, a juvenile waiver decision is distinguishable because it is a hearing to determine probable cause (phase i) and to determine whether the best interests of the public and the juvenile would be served by waiving jurisdiction of the juvenile to an adult court (phase ii). Thus, the waiver hearing precedes any determination of guilt. Therefore, neither the Estelle holding nor the holdings of Kent and Gault mandate extending protections presently applicable to phase i hearings to phase n hearings.52

Defendant argues that waiver is the harshest *220penalty that could be imposed on him. We disagree. In cases where a juvenile is waived to an adult criminal court, the juvenile is still afforded a right to jury trial and the presumption of innocence, and he is therefore not truly subjected to a harsher penalty because guilt is not yet established. Moreover, we are unaware of a constitutional right to be treated as a juvenile.53 Rather, and in derogation of the common law, juvenile justice procedures are governed by statutes and court rules that the probate courts are required to follow in the absence of constitutional infirmity. It is to these provisions that we now turn.

The statute54 and the court rule55 involved here *222both mandate a bifurcated waiver hearing to determine in separate proceedings whether probable cause to suspect a defendant exists, phase i, and whether waiver to an adult criminal court is appropriate, phase ii. The evidentiary requirements for admissibility differ at each phase of a juvenile waiver hearing. Although the statute is silent on the matter, the court rule provides that only "legally admissible evidence” may be used to establish probable cause in phase i of a waiver hearing while "[t]he Michigan Rules of Evidence do not apply to . . . [phase ii] of the waiver hearing.”56

In the recent past, this Court has adopted a number of significant revisions to the court rules for the purpose of clarifying juvenile court procedures.57 To aid the bench and bar, we have declared that these rules "are to be construed to secure fairness, flexibility, and simplicity” so that the rights and proper interests of all parties concerned are protected. See MCR 5.902(A). The ap*223propriate standard for purposes of a phase n hearing is "whether the interests of the juvenile and the public would best be served by granting the motion [for waiver].” MCR 5.950(B)(2) (emphasis added). Former MCR 5.911(A)(2) required a "full investigation” into these interests and provided a five-factor test that has been carried over to MCR 5.950(B)(2)(c) without substantial change.58 (See also former JCR 1969, 11.) In short, we believe that the public policy underlying phase n hearings requires relaxed evidentiary standards so as to ensure a "full investigation.”59

The special role played by the phase n hearing *224is further illustrated by MCL 769.1(3); MSA 28.1072(3)60 and MCR 6.931, which provides for a juvenile sentencing hearing in automatic waiver cases where juveniles have been convicted of a life offense following an adult criminal trial. This "waiver-back” procedure requires the equivalent of a phase ii hearing whose criteria correspond point for point to the criteria found in MCL 712A.4(4); MSA 27.3178(598.4)(4) and MCR 5.950(B)(2), see MCR 6.931(E)(3), in cases of automatic waiver. See MCR 6.901(B). Although the burden of proving that a juvenile should be sentenced as an adult is on the prosecutor, MCR 6.931(E)(2), "all relevant and material evidence may be received by the court and relied upon to the extent of its probative value, even though such evidence may not be admissible at trial” MCR 6.931(E)(1) (emphasis added). Thus, the waiver-back hearing mandates the use of the same flexible evidentiary standard found in phase ii hearings even though guilt has been established.

On the basis of the foregoing, we are persuaded that the Court of Appeals misconstrued the purpose of phase n of a waiver hearing and the underpinnings of the Juvenile Code. The requirements of a full investigation, protection of juveniles as well as the public, and the historic discretion afforded our probate courts in these matters convince us that the full panoply of constitutional rights was never intended to apply to the dispositional phase of a waiver hearing.61

*225IV

CONCLUSION

We conclude that the constitutional protections extended to juvenile proceedings in cases such as Kent and Gault apply in full force to the adjudicative phase of a juvenile waiver hearing.62 We also find that the statutes and court rules concerning phase i hearings, when properly applied, afford the appropriate protection. Thus, because none of the alleged confessions or admissions were introduced at the phase i adjudicative phase of the waiver hearing, there was no constitutional violation.63 We conclude further that the full panoply of constitutional rights asserted by defendant does not *226apply to the dispositional phase of a waiver hearing. The United States Supreme Court has confined its extension of Fifth and Sixth Amendment rights to the adjudicative and not the dispositional phase of waiver proceedings. Use of defendant’s alleged statements to the police and the court psychologist at the phase ii dispositional hearing, therefore, did not violate any constitutional provisions.

The historical and legislative directives are clear.64 We therefore interpret the purpose behind *227the Probate Code and the court rules to favor individualized tailoring of a juvenile’s sentence with emphasis on both the child’s and society’s welfare. Such individualization would be seriously curtailed if the dispositional phase was restricted as defendant urges.

The decision of the Court of Appeals is reversed and the case is remanded for consideration of defendant’s other appellate issues.65

I respectfully dissent. The majority holds that "the legislative purpose and the underpinnings of the Probate Code mandate the conclusion that a probate court’s discretion at the dispositional phase of a waiver hearing remains unfettered by certain evidentiary requirements recognized in criminal proceedings and already extended to the adjudicative phase of a waiver hearing.” Ante, p 204. The decision to waive jurisdiction over a juvenile is not, however, consistent with the "rehabilitative ideal,” underlying the *228creation of the juvenile courts.1 As one commentator noted:

To those committed to rehabilitation as a goal of the justice system, waiver of juvenile court jurisdiction over any offender seems nonsensical. As a matter of logic, waiver could only be appropriate when a better means of rehabilitation — that is, a better process for removing the juvenile’s desire to misbehave — exists in the criminal court. As a practical matter, the criminal courts will never provide a better rehabilitative process than the juvenile court. If nothing else, the conditions of criminal incarceration guarantee that. So a waiver theory based on the concept of rehabilitation has but one premise — there should be no waiver. [Whitebread & Batey, The role of waiver in the juvenile court: Questions of philosophy and function, printed in Major Issues in Juvenile Justice Information and Training: Readings in Public Policy 207, 218 (1981).]

While there are no doubt instances where it is necessary to waive jurisdiction over certain juvenile offenders, the decision to waive cannot be characterized as being consistent with the philosophy underlying the juvenile court system. In reality, the decision to waive juvenile court jurisdiction is not a decision to rehabilitate, but, rather, a decision to punish the juvenile upon conviction. Thus, the juvenile should be afforded the traditional due process protections in judicial waiver proceedings enjoyed by adults accused of crime.

I

The majority holds that adult constitutional protections are unnecessary in phase ii juvenile *229waiver hearings because it is a dispositional proceeding and "precedes any determination of guilt.” Ante, p 219. (Emphasis in original.) In so holding, the majority makes clear that it views phase n as a nonadversarial proceeding that is concerned only with the determination of the forum within which the juvenile will be tried. As is evident from this discussion, however, there is much more at stake in phase n of the juvenile waiver proceeding than the mere determination of which court will adjudicate the juvenile’s guilt or innocence.

Since the United States Supreme Court decided Kent v United States, 383 US 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966), and In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967), various jurisdictions have rejected the view espoused by the majority, including the United States Court of Appeals for the Fourth Circuit,2 Alaska,3 *230Kansas,4 Massachusetts,5 New Mexico,6 and Oklahoma.7 Either by analogizing the transfer hearing to the sentencing phase of adult criminal proceedings,8 or by characterizing the rights affected by the decision to waive jurisdiction as equally, if not more important, than the rights affected in juvenile proceedings to determine delinquency,9 each of *231these jurisdictions has held that constitutional protections afforded adult criminal defendants apply to juvenile waiver proceedings.

Those jurisdictions that view the decision to waive juvenile court jurisdiction as being analogous to adult sentencing, generally rely on Estelle v Smith, 451 US 454; 101 S Ct 1866; 68 L Ed 2d 359 (1981), in finding that the privilege against compelled self-incrimination applies to juvenile waiver proceedings. In Estelle, the Supreme Court held that the Fifth Amendment protects against the use of testimonial disclosures that might subject a person to harsher punishment upon conviction. Id., pp 462-463. The Court stated:

The essence of this basic constitutional principle is "the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.” . . .

The Court has held that "the availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” [Id., p 462, quoting Gault, supra, p 49. Emphasis in original.]

*232The Court distinguished between the "limited, neutral purpose of determining his competency to stand trial,” and the "plainly adverse” use of testimonial disclosures to enhance a defendant’s punishment. Id., p 465.

Characterizing the waiver proceeding as adversarial and the decision to waive jurisdiction as punishment, both the court in RH v State, 777 P2d 204, 208 (Alas App, 1989), and the court in Commonwealth v Wayne W, 414 Mass 218, 236; 606 NE2d 1323 (1993), held that Estelle "foreclosed” the use of confessions and admissions taken in violation of a juvenile’s right against compelled self-incrimination in juvenile waiver proceedings. I agree.

The majority’s reasoning to the contrary ignores reality. The waiver of juvenile court jurisdiction is "a sentencing decision that represents a choice between the punitive disposition of adult criminal court and the 'rehabilitative’ disposition of the juvenile court.” Feld, Criminalizing juvenile justice: Rules of procedure for the juvenile court, 69 Minn L R 141, 269 (1984). (Emphasis in original.)10 Given the substantial interests at stake, there can be no question that waiver proceedings are adversarial. Indeed, this case demonstrates the adversarial nature of phase n waiver proceedings. The prosecution filed a petition for waiver of jurisdiction to the circuit court and presented evidence against the defendant, attempting to prove, as it *233must,11 that Kafan Hana, who had no prior juvenile record, was "beyond rehabilitation under existing juvenile programs and statutory procedures.” See former MCR 5.950(B)(2)(c). Kafan presented substantial testimonial evidence, attempting to convince the court to retain jurisdiction.

There can also be no question regarding the punitive nature of the decision to waive juvenile jurisdiction over Kafan. Had Kafan been prosecuted as a juvenile, he would have faced a maximum of two and one-half years (he was 16 Vi) of confinement (until 19) in a juvenile reformatory. The decision to waive jurisdiction over Kafan, however, paved the way for the state to secure not only a conviction but also a life sentence in an adult prison.12 In my view, this case clearly demonstrates both the adversarial and punitive nature of juvenile waiver proceedings and compels the conclusion that Estelle requires the recognition of Fifth Amendment protections in such proceedings.

I also agree with the courts that find the rationale underlying the United States Supreme Court decision in Gault to compel the conclusion that the constitutional rights recognized in that case must apply in phase n proceedings.13 In my view, the rights affected by the decision to waive jurisdiction are equally, if not more important, than the rights affected in juvenile proceedings to determine delinquency, requiring equal, if not more protection. Further, as mentioned in part in, waiver of juvenile court jurisdiction deprives the juvenile of his *234statutory rights to the traditional benefits of the juvenile justice system. As recognized in both Kent and Gault, the justification for denying juveniles traditional due process rights is the benefits that juveniles purportedly derive from the juvenile justice system. See part ii. Therefore, it seems to follow that traditional due process protections should be afforded to juveniles in any proceeding in which the state seeks to deprive a juvenile of those rights.14 In filing a petition for waiver of juvenile court jurisdiction, the state is not acting as parens patriae to determine whose "custody” is in the best interest of the juvenile accused of crime. To the contrary, the state is deliberately initiating, via the only available avenue, criminal proceedings against the juvenile. Accordingly, such proceedings should be "subject to the requirements which restrict the state when it seeks to deprive a person of his liberty.” Gault, supra, p 17.

II

At common law, children over the age of seven who committed crimes were subject to punishment as adults and entitled to the same procedural protections. Gault, supra, p 16. As the majority recognizes, however, punishment was foreign to the philosophy underlying the progressive movement that sparked the creation of juvenile courts. Ante, p 210. The progressives envisioned a system that focused "on reforming the offender rather than on punishing the offense.” Feld, supra, pp 146-147._

*235The early reformers sought to develop a juvenile justice system that would "use the techniques of the then-developing behavioral sciences — psychiatry, psychology, and sociology — to treat and cure antisocial behavior in children.” Whitebread & Batey, supra, p 208. "The child — essentially good, as they saw it — was to be made 'to feel that he is the object of [the state’s] care and solicitude,’ not that he was under arrest or on trial.” Gault, supra, p 15. To avoid the stigma associated with adult criminal prosecutions, "hearings were confidential and private, access to court records was limited, and youths were found to be 'delinquent’ rather than guilty of an offense.” Feld, supra, p 151. Further, a juvenile found to be delinquent was "never to be incarcerated with adult offenders . . . .” Whitebread & Batey, supra, p 208.

"As corollaries to these propositions, the reformers . . . proposed that the courts operate informally and without legal process.”15 Id. As a result, until the United States Supreme Court decided Kent and Gault "[c]hildren had none of the traditional rights of the criminal defendant because juvenile courts were considered 'civil’ courts.” Whitebread & Batey, supra, p 209. Traditional due process rights were considered unnecessary because "the state was proceeding as parens *236patriae,”16 and, consequently, the proceedings were viewed as nonadversarial. Gault, supra, p 16.

The right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right "not to liberty but to custody.” ... If the parents default in effectively performing their custodial functions — that is, if the child is "delinquent” — the state may intervene. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the "custody” to which the child is entitled. On this basis, proceedings involving juveniles were described as "civil” not "criminal” and therefore not subject to the requirements which restrict the state when it seeks to deprive a person of his liberty. [Id., p 17.]

In short, "[t]he traditional due process rights had, in theory, been traded for the benefits of the juvenile court philosophy.” Whitebread & Batey, supra, p 209.

III

The Supreme Court has recognized that the waiver of juvenile court jurisdiction "is a 'critically important’ action determining vitally important statutory rights of the juvenile.” Kent, supra, p 556. Aptly referred to as "the most important dispositional decision in the juvenile court,”17 the decision to waive jurisdiction is, in reality, a decision to forgo any rehabilitative effort and to punish the juvenile as an adult upon conviction. In*237deed, some courts have characterized the waiver of juvenile court jurisdiction as "the worst punishment the juvenile system is empowered to inflict.” Ramona R v Superior Court, 37 Cal 3d 802, 810; 210 Cal Rptr 204; 693 P2d 789 (1985).18 (Emphasis added.)

In addition to the possibility of a substantial increase in the loss of liberty upon conviction in adult court, the waiver decision also deprives the juvenile of the protections purportedly afforded juveniles under the Probate Code. For instance, incarceration with adults pending trial and, if convicted of a felony, loss of certain rights of citizenship. All of these are benefits that the early reformers relied upon to justify denying the juvenile traditional due process protections. See part n.

As the majority notes, the United States Supreme Court, although faced with the issue in Kent,19 has never explicitly held that, in a juvenile waiver proceeding, a juvenile is entitled to the full panoply of constitutional protections afforded adults accused of crime. The Court did, however, find the denial of such protections particularly *238disturbing, "where . . . there is an absence of any indication that the denial of rights available to adults was offset, mitigated or explained by action of the Government, as parens patriae, evidencing the special solicitude for juveniles commanded by the Juvenile Court Act.” Kent, supra, pp 551-552. It was precisely this concern — that "children had traded away their traditional due process rights for benefits they were not receiving,” Whitebread & Batey, supra, p 209 — that prompted the Court in Gault to hold that in proceedings involving the potential loss of liberty, children are entitled to constitutionally adequate notice of the charges against them, Gault, supra, p 41, the right to counsel, id., the right to confrontation and cross-examination, id., pp 56-57, and the Fifth Amendment right against compelled self-incrimination. Id., pp 47-48.

IV

For the foregoing reasons, I would remand this case to the juvenile court for a hearing to determine whether the statements and confessions introduced and considered at phase ii of Kafan’s juvenile waiver hearing were obtained in violation of his Fifth Amendment right to remain silent or his Sixth Amendment right to counsel. If the juvenile court determines that the statements and confessions were constitutionally obtained, then I would affirm Kafan’s adult convictions and sentences. If, however, the juvenile court determines that the statements and confessions were obtained in violation of Kafan’s constitutional rights, then the juvenile court should conduct another waiver hearing. In the event another waiver hearing is necessary, and, absent any tainted statements and confessions, the juvenile court again determines *239that the waiver of juvenile court jurisdiction is appropriate, then I would affirm Kafan’s adult convictions and sentences. If, absent any tainted statements and confessions, however, the juvenile court determines that the waiver of juvenile court jurisdiction was inappropriate, then I would vacate Kafan’s adult convictions and sentences, try Kafan as a juvenile, and enter the appropriate dispositional order consistent with the Probate Code.