The Grand Jury Requirement Clause

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . . .

—Judge Julius N. Richardson

Introduction

Juries sit at the heart of our criminal justice system. Americans are commonly most familiar with the constitutional right to a trial with a small or petit jury. Less known is that the Constitution also enshrines a right to a large or grand jury. At the end of a prosecution, petit juries decide guilt or innocence and so give the people a check against the state’s penal power; grand juries stand as citizen gatekeepers at the beginning of the process. Being prosecuted at all, even if ultimately found innocent, is its own punishment. The grand jury is “a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor.”¹ In modern practice, about two-dozen grand jurors deliberate in closed proceedings outside the presence of a judge. Only if the government is able to prove that it has a meritorious case, the grand jurors will sign the indictment, which allows the prosecution to begin. Although some have questioned the modern importance of grand juries, the Fifth Amendment’s grand-jury guarantee continues to stand “between the prosecutor and the accused.”²

History Before 1787

The modern grand jury has its roots in the English presentment process from the twelfth century.³ In 1166, King Henry II’s Assize of Clarendon established a procedure through which ordinary men in each locality would begin legal proceedings—through a “presentment”—against those who were suspected of crimes.⁴ As Sir William Blackstone explained, a “presentment, properly speaking, is the notice taken by a grand jury of any offense from their own knowledge or observation.”⁵

This early grand jury, however, lacked significant procedural protections. For example, rather than hearing witnesses or weighing evidence, grand jurors made charges based on what they personally knew about a suspect’s public fame. Grand jurors also could be fined—amerced—for failing to make enough charges. After presentment, moreover, the accused generally faced a trial by ordeal in which they would face significant pain. There was no actual trial by jury.⁶ Given these limitations, many scholars view Henry II’s Assize as an attempt to consolidate his power over legal proceedings rather than as a guarantee of individual rights.⁷

By the early seventeenth century, the grand jury had evolved and achieved enough independence that it was perceived as a check by the people against their government.⁸ Thus, in 1642, Lord Edward Coke declared that Magna Carta’s famous guarantee that men may be taken or imprisoned only under “the law of the land” included the right to indictment by a grand jury.⁹

The grand jury’s new liberty-protecting role was on full display in 1681 when King Charles II sought to prosecute the Earl of Shaftesbury for treason.¹⁰ The London-based grand jury faced considerable pressure to charge, or indict the defendant. The judge told the grand jurors that if they would not indict upon probable cause, they would be “criminals.” Yet the grand jury refused to indict.¹¹ Shaftesbury was nonetheless forced into exile as Charles maneuvered to select new grand jurors more favorable to him.¹² The lesson was clear: Grand jurors could be a safeguard against unfounded or unpopular prosecutions, at least until the Crown meddled.

This perspective on the grand jury traveled across the Atlantic. Each of the thirteen American colonies used grand juries,¹³ which were viewed in America, just as they were in England, as an important check against perceived political prosecutions. For instance, three successive New York grand juries famously refused to indict John Peter Zenger for libeling the royal governor, William Cosby.¹⁴ In Massachusetts, grand juries similarly refused to indict colonists for violating the Stamp Act.¹⁵ Yet in America, just as in England, the Crown circumvented the grand-jury process. Zenger still stood trial. Unable to procure an indictment, the prosecutor chose to charge Zenger by filing an information against him.¹⁶ This formal charge can be brought by the government without a grand jury’s approval.

After independence, the new states included grand-jury provisions in their constitutions. North Carolina, Pennsylvania, and Delaware did so expressly.¹⁷ Many other state constitutions provided for grand juries indirectly through a prohibition akin to Magna Carta’s “law of the land” guarantee.¹⁸ The states continued to use their grand juries just as they had during the colonial period.¹⁹

The Constitutional Convention and Ratification Debates

During the Constitutional Convention, the grand-jury right apparently went unmentioned. Article III included a right to a jury trial in criminal cases but no such protection for the right to a grand-jury indictment.²⁰

The grand-jury right also was not central to the ratification debates. Anti-Federalist Federal Farmer mentioned the right among several that he suggested the Constitution ought to protect explicitly. He proposed “that, except in the government of the army and navy, no person shall be tried for any offence, whereby he may incur loss of life, or an infamous punishment, until he be first indicted by a grand jury.”²¹

In the Massachusetts ratifying convention, Abraham Holmes decried that “there is no provision . . . in the Constitution to prevent the attorney-general from filing information against any person, whether he is indicted by the grand jury or not.”²² Accordingly, the Massachusetts convention included a list of proposed amendments, one of which included a grand-jury right with language that was very similar to Federal Farmer’s proposal: “That no person shall be tried for any crime, by which he may incur an infamous punishment, or loss of life, until he be first indicted by a grand jury, except in such cases as may arise in the government and regulation of the land and naval forces.”²³

New Hampshire proposed a virtually identical amendment when it ratified the Constitution.²⁴ And New York proposed a similar amendment: “That (except in the government of the land and naval forces, and of the militia when in actual service, and in cases of impeachment) a presentment or indictment by a grand jury ought to be observed as a necessary preliminary to the trial of all crimes cognizable by the judiciary of the United States.”²⁵

Adoption of the Fifth Amendment

In 1789, Representative James Madison of Virginia drafted what would become the Fifth Amendment. It included language similar to the proposals from the states: “[I]n all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary.”²⁶ Unlike the state proposals, however, Madison’s language was limited to crimes punishable with “loss of life or member.” And while the initial Massachusetts proposal required a grand jury before a person was “tried,” Madison’s text more closely resembled New York’s “necessary preliminary” phrasing.

Representative Roger Sherman of Connecticut suggested new language that expanded the proposal’s scope and tied it to a person being “tried”: “No person shall be tried for any crime whereby he may incur loss of life or any infamous punishment, without Indictment by a grand Jury. . . .”²⁷ The North Carolina Declaration of Rights used the phrase “put to answer,” and the select Committee of Eleven introduced the similar phrase “held to answer”: “[N]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment by a grand jury. . . .”²⁸

The First Congress adopted the Select Committee’s proposed grand jury requirement with limited discussion.²⁹ Congress referred the amendment to the states with the text it has today.³⁰ There appears to have been no meaningful discussion of this provision during the ratification debates, and following ratification, the early Republic relied on the grand jury for federal indictments.³¹

Modern Grand Jury Practice

Under modern federal practice, a typical grand jury consists of twenty-three citizens.³² The grand jury is selected, sworn, and given general instructions by a district judge. Then, for eighteen months, the grand jury meets regularly in secret. They are guided by the federal prosecutor,³³ who is present for much of the proceeding but is excused during the jurors’ deliberations and voting. Secrecy is a central feature of federal grand juries.³⁴ Though non-deliberative proceedings are transcribed, matters before the grand jury may not be revealed by the jurors or by the government on pain of contempt, subject to specific exceptions.

The grand jury has expansive investigatory powers.³⁵ The grand jury often hears testimony from law-enforcement witnesses about the evidence independently gathered, but it may also conduct its own investigation. Typically under the direction of the prosecutor, the grand jury may subpoena witnesses and records. Those who refuse a subpoena may be held in contempt by the presiding judge absent a valid privilege, including the Fifth Amendment privilege against self-incrimination. Witnesses are questioned by the prosecutor, though grand jurors may also pose questions, and false testimony before the grand jury may be criminally punished.

The grand jury also performs an accusatory role. After the investigation, the grand jury formally accuses the suspect. In that role, the jury serves as a gatekeeper, deliberating and voting on whether evidence establishes probable cause that the suspect committed the alleged crime.³⁶

The grand jury places a check on the executive branch, thus protecting individual liberty. The grand jury has discretion, for it “is not bound to indict in every case where a conviction can be obtained.”³⁷ In most cases, the grand jury considers only the crimes proposed by the prosecutor—that is, an indictment. The grand jury may independently investigate and indict, but only the executive branch may prosecute.³⁸

When the Grand Jury Clause requires an indictment, prosecution cannot proceed without it unless the right is waived by the accused, but an indictment’s defect is not jurisdictional.³⁹ The U.S. Supreme Court has observed that “an indictment returned by a legally constituted and unbiased grand jury . . . if valid on its face, is enough to call for a trial of the charge on the merits.”⁴⁰ Litigants alleging a Fifth Amendment Grand Jury Clause violation rarely succeed.⁴¹

Open Questions

• Does the grand jury requirement still serve a meaningful role?⁴² Does the grand jury do more to aid prosecutions than it does to protect the accused? Is there any difference between the criminal justice systems in states that have a grand jury requirement and states that do not have such a requirement?
• The grand-jury right is one of the few Bill of Rights provisions that has never been incorporated against the states under the Fourteenth Amendment’s Due Process Clause. The Supreme Court expressly refused to do so in Hurtado v. California (1884).⁴³ Justice John Marshall Harlan forcefully dissented in Hurtado. He argued that Magna Carta’s “law of the land” protection encompassed the grand-jury right, citing Blackstone’s Commentaries, Hawkins’s Pleas of the Crown, and Hale’s Historia Placitorum Coronæ.⁴⁴ Should the Court reconsider Hurtado as an originalist matter?⁴⁵
• The Grand Jury Clause is limited to a “person.” The term “person,” unlike the Constitution’s use of “citizen,” has been broadly understood. Does the Grand Jury Clause apply to entities like corporations?⁴⁶
• The Grand Jury Clause is limited to when one is “held to answer” for a crime. Precisely when does this stage occur? It surely includes being put on trial but also appears to include earlier stages of prosecution.⁴⁷
• A “capital” crime is well understood as one that is punishable by death,⁴⁸ but what is an “otherwise infamous crime”? The Supreme Court has noted that “otherwise infamous crimes” are those for which the maximum authorized punishment is considered infamous.⁴⁹

1. U.S. v. Dionisio, 410 U.S. 1, 17 (1973). ↩︎
2. Hoffman v. U.S., 341 U.S. 479, 485 (1951). ↩︎
3. Helene E. Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 Am. Crim. L. Rev. 701, 707–08 (1972); Richard H. Helmholz, The Early History of the Grand Jury and the Canon Law, 50 U. Chi. L. Rev. 613 (1983). ↩︎
4. Richard D. Younger, The People’s Panel: The Grand Jury in the United States, 1634–1941, at 1 (1963). ↩︎
5. 4 Blackstone 301; Nathan Dane, 7 A General Abridgment and Digest of American Law 261–62 (1823). ↩︎
6. Helmholz, supra at 616–17; Irwin L. Langbein, The Jury of Presentment and the Coroner, 33 Colum. L. Rev. 1329, 1330–33 (1933). ↩︎
7. Schwartz, supra at 703–10. ↩︎
8. Id. at 710–11. ↩︎
9. Edward Coke, The Second Part of the Institutes of the Laws of England 46 (1817 ed.). ↩︎
10. Schwartz, supra at 711–19. ↩︎
11. Id. at 717–18. ↩︎
12. Id. at 717–18. ↩︎
13. Younger, supra at 5. ↩︎
14. James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger 17–19 (Stanley Nider Katz ed., 2d ed. 1963). ↩︎
15. Younger, supra at 28. ↩︎
16. Alexander, supra at 19. ↩︎
17. N.C. Const. of 1776, Decl. of Rts., art. VIII; Pa. Const. of 1790, art. IX, § 10; Del. Const. of 1792, Art. I, § 8. ↩︎
18. Md. Const. of 1776, art. XXI; N.H. Const. of 1776, art. XV; Va. Const. of 1776, Bill of Rights, § 8; S.C. Const. of 1778, art. XLI; Mass. Const. of 1780, pt. I, art. XII. ↩︎
19. Sara S. Beale et al., Grand Jury Law and Practice § 1:4 (2d ed. 2022). ↩︎
20. Art. III, § 2, cl. 3. ↩︎
21. Storing 2.8.200. ↩︎
22. 2 Elliot’s 110. ↩︎
23. Id. at 177. ↩︎
24. 1 Elliot’s 326. ↩︎
25. Id. at 328. ↩︎
26. 1 Annals of Cong. at 452 (1789). ↩︎
27. The Complete Bill of Rights: The Drafts, Debates, Sources and Origins 412 (Neil H. Cogan ed., 2d ed. 2015). ↩︎
28. Id. ↩︎
29. Id. at 413–23. ↩︎
30. 1 Elliot’s 339. ↩︎
31. Younger, supra at 46–71. ↩︎
32. Fed. R. Crim. Pro. 6(a)(1); Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 265 (1994). ↩︎
33. U.S. v. Sells Eng’g, Inc., 463 U.S. 418, 431 (1983). ↩︎
34. Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979); Rehberg v. Paulk, 566 U.S. 356, 374 (2012). ↩︎
35. U.S. v. R. Enters., Inc., 498 U.S. 292, 297 (1991). ↩︎
36. Id. at 297. ↩︎
37. Vasquez v. Hillery, 475 U.S. 245, 263 (1986). ↩︎
38. U.S. v. Hill, 26 F. Cas. 315, 316 (C.A.D.Va. 1809) (No. 15,364) (Marshall, C. J.); Greenlaw v. U.S., 554 U.S. 237, 246 (2008). ↩︎
39. U.S. v. Cotton, 535 U.S. 625 (2002). ↩︎
40. Costello v. U.S., 350 U.S. 359 (1956). ↩︎
41. Kaley v. U.S., 571 U.S. 320 (2014) ↩︎
42. In re Kittle, 180 F. 946, 947 (C.C.N.Y. 1910) (L. Hand, J.); Schwartz, supra at 732; U.S. v. Mandujano, 425 U.S. 564, 571 (1976) (plurality opinion); Leipold, supra. ↩︎
43. 110 U.S. 516, 534–35 (1884). ↩︎
44. Id. at 544–45 (Harlan, J., dissenting). ↩︎
45. Ramos v. Louisiana, 590 U.S. 83, 156 (2020) (Alito, J., dissenting). ↩︎
46. Wong Wing v. U.S., 163 U.S. 228 (1896); Peter J. Henning, The Conundrum of Corporate Criminal Liability: Seeking a Consistent Approach to the Constitutional Rights of Corporations in Criminal Prosecutions, 63 Tenn. L. Rev. 793, 856–60 (1996). ↩︎
47. Ex parte Wilson, 114 U.S. 417, 423 (1885); U.S. v. McIntosh, 704 F.3d 894, 903–05 (11th Cir. 2013); Wayne R. LaFave et al., 4 Criminal Procedure § 15.1(b) (4th ed. 2023). ↩︎
48. Fitzpatrick v. U.S., 178 U.S. 304 (1900). ↩︎
49. Wilson, 114 U.S. at 423–27; Mackin v. U.S., 117 U.S. 348 (1886). ↩︎