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The Fifth Amendment’s Grand Jury: A Proud & Lost Protection of Liberty

Grand Jury RoomThe Fifth Amendment of the Bill of Rights mandates government procedures to protect the natural, inalienable rights of life, liberty and the pursuit of happiness recognized in the Declaration of Independence. The amendment contains five protections for these natural rights. The Fifth Amendment’s first protection requires the federal government to use a grand jury to begin prosecuting someone for a crime.  A grand jury is made up of citizens chosen to decide whether to return an indictment formally charging a person with committing a crime.

The Grand Jury Clause of the Fifth Amendment

 The Grand Jury Clause of the Fifth Amendment reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;

The History of Grand Juries

 Magna CartaThe roots of the Grand Jury[1] are in the Magna Carta.  King John’s agreement with the Barons in 1215 placed a group of Barons between the King and legal actions including criminal prosecutions.  This procedure was to protect liberties from unfettered interference by the crown.  What was to become the modern Grand Jury began in 1368 when King Edward III appointed 24 men in each county to investigate and lodge accusations of crime.  However, 300 years[2] would pass before grand juries would become the citizen’s protection written into the Constitution from malicious, political or unwarranted prosecutions.

American colonists inherited grand juries from English law and as tensions grew between the colonies and England colonial grand juries regularly refused to approve the king’s prosecutions.  In the colonies grand juries were in the forefront of the revolution by resisting the crown and exercising the rights of self-government.  In 1735 a colonial grand jury refused to issue an indictment[3] for seditious libel and set the stage for the case of John Peter Zenger, which ultimately freed the press in America.

The Fifth Amendment Grand Jury Protection Mirrors Colonial Experience

The Founding generation came to cherish the value of placing citizens between government prosecution and the accused.  All men have a natural right to liberty and government interference with that right should not be entered upon either lightly or easily.  The Fifth Amendment institutionalized the colonial experience of resisting the government through the grand jury and was recognized by the Supreme Court:

“Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.”  Wood v. Georgia (1962)

The Grand Jury in Modern Times

From ratification of the Bill of Rights 1791 until the 1946 adoption of the Federal Rules of Criminal Procedure (FRCP), specifically Rule 6[4] grand juries were not governed by statute.  The Grand Jury was an institution that existed before the Constitution and recognized by the Fifth Amendment and not considered a part of any branch of government, but rather a panel of citizens.

While grand juries started as investigative and accusatory bodies with great independent authority, that authority has been diminished both in practice and by statute.  Federal[5] grand juries are typically composed of 23 citizens and convene for periods from one month to a year.  Legally as a pre-constitutional institution recognized by the Constitution, grand juries retain the independent authority that they had at common law.[6]  In practice, they have become a prosecutor’s panel dependent upon the prosecutor for their agenda, though technically they are not part of the executive branch.

Judge Sol WachterHow a Grand Jury Works

Grand jury proceedings are secret. The prosecutor presents evidence to the panel and no judge is present. The targets of grand jury investigations have no rights to be present or informed about the proceedings. A vote of twelve grand jurors is required to return an indictment.

Since the grand jury is an investigative body and not a court, many court rules do not apply. Jurors may consider evidence that cannot be used in court such as hearsay or evidence that may have been gathered in violation of the Fourth, Fifth or Sixth amendments. There is no right for a witness to have an attorney present.[7]  They have the power to issue subpoenas for both physical evidence and testimony.

American-Ham-SandwichGiven the evolution over the years, grand juries, whose members once proudly stood up to the King of England, rather than maintaining a buffer between the government and the people, have become an extension of the prosecution.  The change in the nature of grand juries was best expressed by the now famous observation of former Judge Sol Wachter who observed that prosecutors now exercise so much control that a grand jury could be persuaded to “indict a ham sandwich”.

The Demise of a Procedural Protection for Life and Liberty

What once stood as a bulwark for freedom and was constitutionalized to be so is now best described:

Thus, while the grand jury still exists as an institution — in a sterile, watered-down, and impotent form — its decisions are the mere reflection of the United States Justice Department. In practice, the grand jury’s every move is controlled by the prosecution, whom the grand jury simply does not know it is supposed to be pitted against.”   Roger Roots[8]


[1]Grand Juries are typically made up of 16 to 23 members.  Trial juries consist of 6 to 12.  The larger juries are thus considered “grand”.

[3]An “indictment” is the legal term for the formal accusation of a crime by a grand jury.  The word is typically employed when a grand jury decides enough evidence exists to bring someone to trial.

[4]   The FRCP made independently-acting grand juries illegal for all practical purposes, creating a creature that would be unrecognized by the Founders.

[5]    The Fifth Amendment’s Grand Jury requirement applies only to federal criminal prosecutions.  The Supreme Court has held that this clause of the Bill of Rights does not apply to the states. Hurtado v. California, 110 U.S. 516 (1884) Though Hurtado was decided prior to the trend of the Supreme Court to apply the Bill of Rights to the states through the 14th Amendment.

[6]    Common law is the English law derived from custom and judicial precedent rather than statutes (laws passed by the legislature) that was adopted by America at its founding.

[7]    Though witnesses are allowed to leave a grand jury proceeding at any time to consult with an attorney.

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