Fifth Amendment To The United States Constitution - Grand Jury

Grand Jury

Further information: Grand juries in the United States

Grand juries, which return indictments in many criminal cases, are composed of a jury of peers and operate in closed deliberation proceedings; they are given specific instructions regarding the law by the judge. Many constitutional restrictions do not apply during grand jury proceedings. For example, the exclusionary rule does not apply to evidence presented to a grand jury; the exclusionary rule states that evidence obtained in violation of the Fourth, Fifth or Sixth amendments cannot be introduced in court. Also, defendants do not have the right to have their attorneys present in grand jury rooms during hearings; they would normally have such a right during questioning by the police while in custody. The grand jury indictment clause of the Fifth Amendment has not been incorporated under the Fourteenth Amendment; in other words, it has not been ruled applicable to the states. States are free to abolish grand juries, and many (though not all) have replaced them with preliminary hearings.

Currently, federal law permits the trial of misdemeanors without indictments. Additionally, in trials of non-capital felonies, the prosecution may proceed without indictments if the defendants waive their Fifth Amendment right.

Grand jury indictments may be amended by the prosecution only in limited circumstances. In Ex Parte Bain, 121 U.S. 1 (1887), the Supreme Court held that the indictment could not be changed at all by the prosecution. United States v. Miller, 471 U.S. 130 (1985) partly reversed Ex parte Bain; now, an indictment's scope may be narrowed by the prosecution. Thus, lesser included charges may be dropped, but new charges may not be added.

The Grand Jury Clause of the Fifth Amendment does not protect those serving in the armed forces, whether during wartime or peacetime. Members of the state militia called up to serve with federal forces are not protected under the clause either. In O'Callahan v. Parker, 395 U.S. 258 (1969), the Supreme Court held that only charges relating to service may be brought against members of the militia without indictments. That decision was overturned in 1987, when the Court held that members of the militia in actual service may be tried for any offense with indictments.

The grand jury clause of the Fifth Amendment has not been incorporated against the U.S. states. This means that the grand jury requirement applies only to felony charges in the federal court system. While many states do employ grand juries, no defendant has a Fifth Amendment right to a grand jury for criminal charges in state court.