by Jodi L. Miller
The Grand Jury Clause and the Due Process Clause are the first and fourth clauses, respectively, of the U.S. Constitution’s Fifth Amendment. Essentially, these clauses deal with criminal procedures.
Grand Jury
The Grand Jury Clause states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…”
While the other four clauses of the Fifth Amendment were incorporated by the 14th Amendment to apply to the states, the Grand Jury Clause was not. Many state courts employ grand juries as well, but defendants don’t have a Fifth Amendment right to a grand jury for criminal charges brought in state courts.
A capital crime is one that, if convicted, the defendant could face the death penalty as punishment.
What does an “infamous crime” mean?
In the 1886 case of Mackin v. United States, the U.S. Supreme Court stated, “’Infamous crimes’ are thus, in the most explicit words, defined to be those ‘punishable by imprisonment in the penitentiary.’” Later, the Court would decide in the 1957 case of Green v. United States that “Imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year.”
So, essentially an infamous crime is a felony where the accused faces a prison term of more than one year. These types of federal crimes are the only ones where a defendant is entitled to a grand jury.
A grand jury is made up of ordinary citizens, selected from the regular jury pool and consists of anywhere from 12 to 23 members. Sitting on a federal grand jury requires a longer time commitment than regular jury duty, and can be anywhere from 18 to 36 months. A grand jury, however, doesn’t meet every day during that time period, like a regular jury would. Usually, a grand jury meets either once a week or a few times a week over a longer period to hear cases.
A prosecutor presents the case and must convince the members of the grand jury that there is probable cause that the accused should be indicted for the crime. The grand jury does not decide guilt. If it is convinced that there is enough evidence to proceed, it will issue an indictment and a trial will be held with a different jury.
Two types of due process
The Due Process Clause of the Fifth Amendment reads, “No person shall…be deprived of life, liberty, or property, without due process of law…”
The term “due process of law” originated in a 1354 English statute. The phrase replaced “law of the land,” which appears in England’s Magna Carta—“no freeman will be seized, dispossessed of his property, or harmed except by law of the land.” According to the Library of Congress, the 1354 statute was one of six that the English Parliament enacted to clarify the meaning of the liberties guaranteed in the Magna Carta.
The Magna Carta, written by the barons of Medieval England in 1215 and signed by King John under duress, established the principle that no one (including a king) is above the law. According to the website of UK Parliament, the document guaranteed certain rights and liberties to the barons, including protection from illegal imprisonment. It also placed limits on royal authority by establishing law as a power in itself.
The Due Process Clause in the U.S. Constitution’s Fifth Amendment simply deals with the administration of justice, acting as a safeguard from the arbitrary denial of a citizen’s basic rights. The clause is repeated in the 14th Amendment, which ensured that it was applied at the state level as well as federally.
There are two types of due process—procedural due process and substantive due process. George Thomas, a professor at Rutgers Law School in Newark, explains that procedural due process guarantees what the name implies.
“It’s certain procedures,” he says. “You have a right to a jury trial, you have a right to be found guilty beyond a reasonable doubt. You have a right to confront the witnesses against you. You have a right to testify or not, as you see fit, and so forth.”
Substantive due process, on the other hand, has nothing to do with procedure. Professor Thomas describes this type of due process as a right that, if exercised, the government cannot punish.
“Substantive due process is the right to do something—vote, marry, have schools for children, buy birth control,” Professor Thomas says. “It is called ‘substantive’ because no procedure can take that right away. But not very many of those rights exist.”
Substantive due process protects what are known as individual rights. An individual right is one that is required to live a free and equitable life and cannot be interfered with or denied by the government or another individual. For example, the right to privacy is an individual right.
Professor Thomas also gives the example of the right to marry as an individual right. The U.S. Supreme Court effectively said that in its 1967 decision in Loving v. Virginia.
The case involved the Lovings, residents of Virginia, who married in 1958 in Washington, D.C. Mildred, a black woman, and Richard, a white man, returned to Virginia shortly thereafter. The couple was then charged with violating Virginia’s law banning inter-racial marriage. The Lovings were found guilty and sentenced to a year in jail. The trial judge agreed to suspend the sentence if the Lovings left Virginia and didn’t return for 25 years.
The Supreme Court held that the Virginia law violated the Due Process Clause of the Fourteenth Amendment (which applied to the states). “Under our Constitution,” wrote Chief Justice Earl Warren, “the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”
Discussion Questions
- As noted in the article, sitting on a grand jury requires a long time commitment. Would serving on a grand jury interest you? Why or why not?
- Why do you think the Framers of the U.S. Constitution included the Due Process Clause in the Fifth Amendment? Explain your answer.
Glossary Words
beyond a reasonable doubt—when a juror is completely convinced of a person’s guilt.
felony—a serious criminal offense usually punished by imprisonment of more than one year.
indictment—an official, written accusation charging someone with a crime. An indictment is handed down by a grand jury.
penitentiary—prison for those convicted of serious crimes.
statute—legislation that has been signed into law.
This article originally appeared in Constitutionally Speaking—The Fifth Amendment