Most people have heard of “pleading the Fifth.” But the Fifth Amendment doesn’t just protect against self-incrimination. It also requires felony offenses in federal court to be charged by a grand jury. A grand jury is different from a trial jury. In a grand jury, a panel of citizens hear evidence from prosecutors and decide whether criminal charges (called an “indictment”) should be filed against them. This requirement does not apply to state-level courts. Learn more about the Constitution’s grand jury clause below.
What the Fifth Amendment Says
“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 Fifth Amendment's Grand Jury Requirement
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
The history of the grand jury is rooted in the common and civil law, extending back to Athens, pre-Norman England, and the Assize of Clarendon promulgated by Henry II.1 The right seems to have been first mentioned in the colonies in the Charter of Liberties and Privileges of 1683, which was passed by the first assembly permitted to be elected in the colony of New York.2 Included from the first in Madison’s introduced draft of the Bill of Rights, the provision elicited no recorded debate and no opposition. The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English ancestor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings, the grand jury grew in popular favor over the years. It acquired independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And in this country as in England of old, the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.3
The Grand Jury Clause in Practice
The prescribed constitutional function of grand juries in federal courts4 is to return criminal indictments, but the juries serve a considerably broader series of purposes as well. Principal among these is the investigative function, which is served through the fact that grand juries may summon witnesses by process and compel testimony and the production of evidence generally. Operating in secret, under the direction but not control of a prosecutor, not bound by many evidentiary and constitutional restrictions, such juries may examine witnesses in the absence of their counsel and without informing them of the object of the investigation or the place of the witnesses in it.5 The exclusionary rule is inapplicable in grand jury proceedings, with the result that a witness called before a grand jury may be questioned on the basis of knowledge obtained through the use of illegally seized evidence.6 In thus allowing the use of evidence obtained in violation of the Fourth Amendment, the Court nonetheless restated the principle that, although free of many rules of evidence that bind trial courts, grand juries are not unrestrained by constitutional consideration.7 A witness called before a grand jury is not entitled to be informed that he may be indicted for the offense under inquiry8 and the commission of perjury by a witness before the grand jury is punishable, irrespective of the nature of the warning given him when he appears and regardless of the fact that he may already be a putative defendant when he is called.9
Of greater significance were two cases in which the Court held the Fourth Amendment to be inapplicable to grand jury subpoenas requiring named parties to give voice exemplars and handwriting samples to the grand jury for identification purposes.10 According to the Court, the issue turned on a dual inquiry—whether either the initial compulsion of the person to appear before the grand jury, or the subsequent directive to make a voice recording is an unreasonable ‘seizure’ within the meaning of the Fourth Amendment.11 First, a subpoena to appear was held not to be a seizure, because it entailed significantly less social and personal affront than did an arrest or an investigative stop, and because every citizen has an obligation, which may be onerous at times, to appear and give whatever aid he may to a grand jury.12 Second, the directive to make a voice recording or to produce handwriting samples did not bring the Fourth Amendment into play because no one has any expectation of privacy in the characteristics of either his voice or his handwriting.13 Because the Fourth Amendment was inapplicable, there was no necessity for the government to make a preliminary showing of the reasonableness of the grand jury requests.
Besides indictments, grand juries may also issue reports that may indicate nonindictable misbehavior, mis- or malfeasance of public officers, or other objectionable conduct.14 Despite the vast power of grand juries, there is little in the way of judicial or legislative response designed to impose some supervisory restrictions on them.15
Within the meaning of this article a crime is made infamous by the quality of the punishment that may be imposed.16 What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another.17 Imprisonment in a state prison or penitentiary, with or without hard labor,18 or imprisonment at hard labor in the workhouse of the District of Columbia,19 falls within this category. The pivotal question is whether the offense is one for which the court is authorized to award such punishment; the sentence actually imposed is immaterial. When the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.20 Thus, an act that authorized imprisonment at hard labor for one year, as well as deportation, of Chinese aliens found to be unlawfully within the United States, created an offense that could be tried only upon indictment.21 Counterfeiting,22 fraudulent alteration of poll books,23 fraudulent voting,24 and embezzlement,25 have been declared to be infamous crimes. It is immaterial how Congress has classified the offense.26 An act punishable by a fine of not more than $1,000 or imprisonment for not more than six months is a misdemeanor, which can be tried without indictment, even though the punishment exceeds that specified in the statutory definition of petty offenses.27
A person can be tried only upon the indictment as found by the grand jury, and especially upon its language found in the charging part of the instrument.28 A change in the indictment that does not narrow its scope deprives the court of the power to try the accused.29 Although additions to offenses alleged in an indictment are prohibited, the Court has now ruled that it is permissible to drop from an indictment those allegations that are unnecessary to an offense that is clearly contained within it, as, for example, a lesser included offense.30 There being no constitutional requirement that an indictment be presented by a grand jury in a body, an indictment delivered by the foreman in the absence of other grand jurors is valid.31 If valid on its face, an indictment returned by a legally constituted, non-biased grand jury satisfies the requirement of the Fifth Amendment and is enough to call for a trial on the merits; it is not open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury.32
Military Exception to the Grand Jury Doctrine
The protection of indictment by grand jury extends to all persons except those serving in the armed forces. All persons in the regular armed forces are subject to court martial rather than grand jury indictment or trial by jury.33 The exception’s limiting words when in actual service in time of war or public danger apply only to members of the militia, not to members of the regular armed forces. In 1969, in O’Callahan v. Parker, the Court held that offenses that are not service connected may not be punished under military law, but instead must be tried in the civil courts in the jurisdiction where the acts took place.34 In 1987, however, this decision was overruled, with the Court emphasizing the plain language of Article I, § 8, clause 14,35 and not directly addressing any possible limitation stemming from the language of the Fifth Amendment.36 [T]he requirements of the Constitution are not violated where, as here, a court-martial is convened to try a serviceman who was a member of the armed services at the time of the offense charged.37 Even under the service connection rule, it was held that offenses against the laws of war, whether committed by citizens or by alien enemy belligerents, could be tried by a military commission.38
More on the Fifth Amendment
1. Morse, A Survey of the Grand Jury System, 10 Ore. L. Rev. 101 (1931).
2. 1 Bernard Schwartz, The Bill of Rights: A Documentary History 162, 166 (1971). The provision read: That in all Cases Capital or Criminal there shall be a grand Inquest who shall first present the offence.
3. Costello v. United States, 350 U.S. 359, 362 (1956). The grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty; notwithstanding periodic criticism, much of which is superficial, overlooking relevant history, the grand jury continues to function as a barrier to reckless or unfounded charges . . . . Its historic office has been to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance. United States v. Mandujano, 425 U.S. 564, 571 (1976) (plurality opinion). See id. at 589–91 (Justice Brennan concurring).
4. This provision applies only in federal courts and is not applicable to the states, either as an element of due process or as a direct command of the Fourteenth Amendment. Hurtado v. California, 110 U.S. 516 (1884); Palko v. Connecticut, 302 U.S. 319, 323 (1937); Alexander v. Louisiana, 405 U.S. 625, 633 (1972).
5. Witnesses are not entitled to have counsel present in the room. Fed. R. Civ. P. 6(d). The validity of this restriction was asserted in dictum in In re Groban, 352 U.S. 330, 333 (1957), and inferentially accepted by the dissent in that case. Id. at 346–47 (Justice Black, distinguishing grand juries from the investigative entity before the Court). The decision in Coleman v. Alabama, 399 U.S. 1 (1970), deeming the preliminary hearing a critical stage of the prosecution at which counsel must be provided, called this rule in question, inasmuch as the preliminary hearing and the grand jury both determine whether there is probable cause with regard to a suspect. See id. at 25 (Chief Justice Burger dissenting). In United States v. Mandujano, 425 U.S. 564, 581 (1976) (plurality opinion), Chief Justice Burger wrote: Respondent was also informed that if he desired he could have the assistance of counsel, but that counsel could not be inside the grand jury room. That statement was plainly a correct recital of the law. No criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play. By emphasizing the point of institution of criminal proceedings, relevant to the right of counsel at line-ups and the like, the Chief Justice not only reasserted the absence of a right to counsel in the room but also, despite his having referred to it, cast doubt upon the existence of any constitutional requirement that a grand jury witness be permitted to consult with counsel out of the room, and, further, raised the implication that a witness or putative defendant unable to afford counsel would have no right to appointed counsel. Concurring, Justice Brennan argued that access to counsel was essential and constitutionally required for the protection of constitutional rights; Brennan accepted the likelihood, without agreeing, that consultation outside the room would be adequate to preserve a witness’ rights, id. at 602–09 (with Justice Marshall). Justices Stewart and Blackmun reserved judgment. Id. at 609. The dispute appears ripe for revisiting.
6. United States v. Calandra, 414 U.S. 338 (1974). The Court has interpreted a provision of federal wiretap law, 18 U.S.C. § 2515, to prohibit use of unlawful wiretap information as a basis for questioning witnesses before grand juries. Gelbard v. United States, 408 U.S. 41 (1972).
7. Of course, the grand jury’s subpoena power is not unlimited. It may consider incompetent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law. Although, for example, an indictment based on evidence obtained in violation of a defendant’s Fifth Amendment privilege is nevertheless valid the grand jury may not force a witness to answer questions in violation of that constitutional guarantee. Similarly, a grand jury may not compel a person to produce books and papers that would incriminate him. The grand jury is also without power to invade a legitimate privacy interest protected by the Fourth Amendment. A grand jury’s subpoena duces tecum will be disallowed if it is ‘far too sweeping in its terms to be regarded as reasonable' under the Fourth Amendment. Hale v. Henkel, 201 U.S. 43, 76 (1906). Judicial supervision is properly exercised in such cases to prevent the wrong before it occurs. United States v. Calandra, 414 U.S. 338, 346 (1974). See also United States v. Dionisio, 410 U.S. 1, 11–12 (1973). Grand juries must operate within the limits of the First Amendment and may not harass the exercise of speech and press rights. Branzburg v. Hayes, 408 U.S. 665, 707–08 (1972). Protection of Fourth Amendment interests is as extensive before the grand jury as before any investigative officers, Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920); Hale v. Henkel, 201 U.S. 43, 76–77 (1906), but not more so either. United States v. Dionisio, 410 U.S. 1 (1973) (subpoena to give voice exemplars); United States v. Mara, 410 U.S. 19 (1973) (handwriting exemplars). The Fifth Amendment’s Self-Incrimination Clause must be respected. Blau v. United States, 340 U.S. 159 (1950); Hoffman v. United States, 341 U.S. 479 (1951). On common-law privileges, see Blau v. United States, 340 U.S. 332 (1951) (husband-wife privilege); Alexander v. United States, 138 U.S. 353 (1891) (attorney-client privilege). The traditional secrecy of grand jury proceedings has been relaxed a degree to permit a limited discovery of testimony. Compare Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959), with Dennis v. United States, 384 U.S. 855 (1966). See Fed. R. Crim. P. 6(e) (secrecy requirements and exceptions).
8. United States v. Washington, 431 U.S. 181 (1977). Because defendant when he appeared before the grand jury was warned of his rights to decline to answer questions on the basis of self-incrimination, the decision was framed in terms of those warnings, but the Court twice noted that it had not decided, and was not deciding, whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses . . . . Id. at 186.
9. United States v. Mandujano, 425 U.S. 564 (1976); United States v. Wong, 431 U.S. 174 (1977). Mandujano had been told of his right to assert the privilege against self-incrimination, of the consequences of perjury, and of his right to counsel, but not to have counsel with him in the jury room. Chief Justice Burger and Justices White, Powell, and Rehnquist took the position that no Miranda warning was required because there was no police custodial interrogation and that in any event commission of perjury was not excusable on the basis of lack of any warning. Justices Brennan, Marshall, Stewart, and Blackmun agreed that whatever rights a grand jury witness had, perjury was punishable and not to be excused. Id. at 584, 609. Wong was assumed on appeal not to have understood the warnings given her and the opinion proceeds on the premise that absence of warnings altogether does not preclude a perjury prosecution.
10. United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 19 (1973).
11. Dionisio, 410 U.S. at 9.
12. 410 U.S. at 9–13.
13. 410 U.S. at 13–15. The privacy rationale proceeds from Katz v. United States, 389 U.S. 347 (1967).
14. The grand jury is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of whether any particular individual will be found properly subject to an accusation of crime. Blair v. United States, 250 U.S. 273, 281 (1919). On the reports function of the grand jury, see In re Grand Jury January, 1969, 315 F. Supp. 662 (D. Md. 1970), and Report of the January 1970 Grand Jury (Black Panther Shooting) (N.D. Ill., released May 15, 1970). Congress has now specifically authorized issuance of reports in cases concerning public officers and organized crime. 18 U.S.C. § 3333.
15. Congress has required that in the selection of federal grand juries, as well as petit juries, random selection of a fair cross section of the community is to take place, and has provided a procedure for challenging discriminatory selection by moving to dismiss the indictment. 28 U.S.C. §§ 1861-68. Racial discrimination in selection of juries is constitutionally proscribed in both state and federal courts. See discussion under Juries, infra.
16. Ex parte Wilson, 114 U.S. 417 (1885).
17. 114 U.S. at 427.
18. Mackin v. United States, 117 U.S. 348, 352 (1886).
19. United States v. Moreland, 258 U.S. 433 (1922).
20. Ex parte Wilson, 114 U.S. 417, 426 (1885).
21. Wong Wing v. United States, 163 U.S. 228, 237 (1896).
22. Ex parte Wilson, 114 U.S. 417 (1885).
23. Mackin v. United States, 117 U.S. 348 (1886).
24. Parkinson v. United States, 121 U.S. 281 (1887).
25. United States v. DeWalt, 128 U.S. 393 (1888).
26. Ex parte Wilson, 114 U.S. 417, 426 (1885).
27. Duke v. United States, 301 U.S. 492 (1937).
28. See Stirone v. United States, 361 U.S. 212 (1960), which held that a variation between pleading and proof deprived the petitioner of his right to be tried only upon charges presented in the indictment.
29. Ex parte Bain, 121 U.S. 1, 12 (1887). Ex parte Bain was overruled in United States v. Miller, 471 U.S. 130 (1985), to the extent that it held that a narrowing of an indictment is impermissible. Ex parte Bain was also overruled to the extent that it held that it held that a defective indictment was not just substantive error, but that it deprived a court of subject-matter jurisdiction over a case. United States v. Cotton, 535 U.S. 625 (2002). While a defendant’s failure to challenge an error of substantive law at trial level may result in waiver of such issue for purpose of appeal, challenges to subject-matter jurisdiction may be made at any time. Thus, where a defendant failed to assert his right to a non-defective grand jury indictment, appellate review of the matter would limited to a plain error analysis. 535 U.S. at 631 (2002).
30. United States v. Miller, 471 U.S. 130, 144 (1985).
31. Breese v. United States, 226 U.S. 1 (1912).
32. Costello v. United States, 350 U.S. 359 (1956); Lawn v. United States, 355 U.S. 339 (1958); United States v. Blue, 384 U.S. 251 (1966). Cf. Gelbard v. United States, 408 U.S. 41 (1972).
33. Johnson v. Sayre, 158 U.S. 109, 114 (1895). See also Lee v. Madigan, 358 U.S. 228, 232–35, 241 (1959).
34. 395 U.S. 258 (1969); see also Relford v. Commandant, 401 U.S. 355 (1971) (offense committed on military base against persons lawfully on base was service connected). But courts-martial of civilian dependents and discharged servicemen have been barred. Id. See Trial and Punishment of Offenses: Servicemen, Civilian Employees, and Dependents under Article I.
35. This clause confers power on Congress to make rules for the government and regulation of the land and naval forces.
36. Solorio v. United States, 483 U.S. 435 (1987). A 5-4 majority favored overruling O’Callahan: Chief Justice Rehnquist's opinion for the Court was joined by Justices White, Powell, O’Connor, and Scalia. Justice Stevens concurred in the judgment but thought it unnecessary to reexamine O’Callahan. Dissenting Justice Marshall, joined by Justices Brennan and Blackmun, thought the service connection rule justified by the language of the Fifth Amendment’s exception, based on the nature of cases (those arising in the land or naval forces) rather than the status of defendants.
37. 483 U.S. at 450–51.
38. Ex parte Quirin, 317 U.S. 1, 43, 44 (1942).