Amendment 5 — Grand Jury Clause Doctrine And Practice

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Fifth Amendment :

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; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The prescribed constitutional function of grand juries in federal courts[1](https://www.law.cornell.edu/constitution-conan/amendment-5/grand-jury-clause-doctrine-and-practice#fn1amd5 " 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). ") is to return criminal indictments. But grand juries serve a considerably broader series of purposes as well. Principal among these is the investigative function, which grand juries serve by summoning witnesses, compelling testimony, and gathering evidence. Operating in secret, under the direction but not control of a prosecutor, grand juries may examine witnesses in the absence of their counsel.[2](https://www.law.cornell.edu/constitution-conan/amendment-5/grand-jury-clause-doctrine-and-practice#fn2amd5 " 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. In re Groban, 352 U.S. at 346–47 (Black, J., 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 Coleman, 399 U.S. at 25 (Burger, C.J., dissenting). In United States v. Groban, 352 U.S. 330, 333 (1957), and inferentially accepted by the dissent in that case. In re Groban, 352 U.S. 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 Coleman, 399 U.S. at 25 (Burger, C.J., dissenting). In United States v. Mandujano, 425 U.S. 564, 581 (1976) (plurality opinion), Chief Justice Warren 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 William 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’s rights, Mandujano, 425 U.S. at 602–09 (with Justice Thurgood Marshall). Justices Potter Stewart and Harry Blackmun reserved judgment. Id. at 609. ") 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 illegally seized evidence.[3](https://www.law.cornell.edu/constitution-conan/amendment-5/grand-jury-clause-doctrine-and-practice#fn3amd5 " 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). ") Similarly, grand jury witnesses are not entitled to be informed that they may be indicted for the offense under inquiry.[4](https://www.law.cornell.edu/constitution-conan/amendment-5/grand-jury-clause-doctrine-and-practice#fn4amd5 " 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. ") While some constitutional guarantees that apply in other settings are thus inapplicable in grand jury proceedings, other guarantees do apply in such proceedings. For example, a grand jury may not compel a person to produce books and papers that would incriminate him or her.[5](https://www.law.cornell.edu/constitution-conan/amendment-5/grand-jury-clause-doctrine-and-practice#fn5amd5 " In Hale v. Henkel, the Supreme Court observed: “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, 201 U.S. at 76–77, but not more so either. Dionisio, 410 U.S. 1 (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). ") Besides indictments, grand juries may also issue reports that may indicate nonindictable misbehavior, mis- or malfeasance of public officers, or other objectionable conduct.[6](https://www.law.cornell.edu/constitution-conan/amendment-5/grand-jury-clause-doctrine-and-practice#fn6amd5 " 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. § 333. ") 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.[7](https://www.law.cornell.edu/constitution-conan/amendment-5/grand-jury-clause-doctrine-and-practice#fn7amd5 " 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. ")

By its terms, the Grand Jury Clause applies only to “capital” or “otherwise infamous” crimes. Whether a crime qualifies as “infamous” depends on the quality of the associated punishment.[8](https://www.law.cornell.edu/constitution-conan/amendment-5/grand-jury-clause-doctrine-and-practice#fn8amd5 "<span class="fn