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 courts1 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 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 Similarly, grand jury witnesses are not entitled to be informed that they may be indicted for the offense under inquiry.4 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 Besides indictments, grand juries may also issue reports that may indicate nonindictable misbehavior, mis- or malfeasance of public officers, or other objectionable conduct.6 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

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 The Supreme Court has held that the prospect of imprisonment in a state prison or penitentiary9 or hard labor at a non-penitentiary workhouse10 are sufficient to render a crime “infamous” within the meaning of the Grand Jury Clause. By contrast, the Court has held that conduct punishable by a fine of not more than $1,000 or imprisonment for not more than six months can be tried without indictment.11 In analyzing whether a crime is “infamous,” 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.12

A person can be tried only upon the indictment as found by the grand jury—in particular, upon the language in the charging part of the instrument.13 A change in the indictment that does not narrow its scope deprives the court of the power to try the accused.14 Although additions to offenses alleged in an indictment are prohibited, the Supreme Court has 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.15

Because there is no constitutional requirement that an indictment be presented by a grand jury as a body, an indictment delivered by the foreman in the absence of other grand jurors is valid.16 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; such an indictment is not open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury.17

Footnotes

1

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).

2

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.

3

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).

4

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.

5

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. 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).

6

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.

7

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.

8

Ex parte Wilson, 114 U.S. 417 (1885).

9

Mackin v. United States, 117 U.S. 348, 352 (1886).

10

United States v. Moreland, 258 U.S. 433 (1922).

11

Duke v. United States, 301 U.S. 492 (1937).

12

Ex parte Wilson, 114 U.S. at 426.

13

See Stirone v. United States, 361 U.S. 212 (1960), which held that a variation between pleading and proof deprived petitioner of his right to be tried only upon charges presented in the indictment.

14

Ex parte Bain, 121 U.S. 1, 12 (1887). In United States v. Cotton, the Supreme Court overruled Ex parte Bain in United States v. Miller, 471 U.S. 130 (1985), to the extent that it held that a narrowing of an indictment is impermissible. The Court also overruled Ex parte Bain to the extent 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. Cotton, 535 U.S. at 631.

15

United States v. Miller, 471 U.S. 130, 144 (1985).

16

Breese v. United States, 226 U.S. 1 (1912).

17

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).