Essay About Indictment Of A Grand Jury And Fifth Amendment

Essay Preview: Law
Report this essay
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 offense 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. ?
[edit] Grand jury
Grand juries, which return indictments in many criminal cases, are
composed by a jury of peers and operate in closed deliberation
proceedings; they are given specific instructions regarding the law by
the judge. Many constitutional restrictions do not apply during grand
jury proceedings. The \\\”exclusionary rule,\\\” which prevents evidence
seized in violation of the Fourth Amendment from being introduced in
court, does not apply to evidence presented to a grand jury. Witnesses
do not have the right to have their attorneys present in grand jury
rooms during hearings; they would normally have such a right when being
investigated by the police. The grand jury indictment clause of the
Fifth Amendment has not been incorporated under the Fourteenth
Amendment; in other words, it has not been ruled applicable to the
states. States are thus free to abolish grand juries, and many (though
not all) have indeed replaced them with preliminary hearings.
Whether or not a crime is \\\”infamous\\\” is determined by the nature of the
punishment that may be imposed (not the punishment that is actually
imposed). (Crimes punishable by capital punishment are explicitly
required to be tried upon indictments.) In United States v. Moreland
(1922), the Supreme Court held that imprisonment in a prison or
penitentiary (as opposed to a correction or reformation house) attaches
infamy to a crime. Currently, federal law permits the trial of
misdemeanors without indictments. In cases involving felonies except
those in which capital punishment may be applied, the prosecution may
proceed without indictments if the defendants waive their Fifth
Amendment right.
Indictments found by grand juries may be amended by the prosecution
only in limited circumstances. In Ex Parte Bain (1887), the Supreme
Court held that the indictment could not be changed at all by the
prosecution. United States v. Miller (1985) partly reversed the
previous ruling; now, an indictment\\\s scope may be narrowed by the
prosecution. Thus, lesser included charges may be dropped, but new
charges may not be added.
The Fifth Amendment\\\s grand jury clause does not protect those serving
in the Armed Forces, whether during wartime or peacetime. Members of
the state militia called up to serve with federal forces are not
protected by the clause either. In O\\\Callahan v. Parker (1969), the
Supreme Court held that only service-related charges may be brought
against members of the militia without indictments. That decision was
overturned in 1987, when the Court held that members of the militia in
actual service may be tried for any offense without indictments.
[edit] Double Jeopardy
Generally, individuals may be tried only once for a particular offense
under the double jeopardy clause. Originally, the protection against
double jeopardy did not extend to prosecutions in state courts. In
Benton v. Maryland 395 U.S. 784, (1969), the Supreme Court
\\\”incorporated\\\” the clause under the Fourteenth Amendment, meaning that
state courts were now required to honor the protections of the Fifth
Amendment in state criminal proceedings as well.
The Fifth Amendment refers to being put in \\\”jeopardy of life or limb.\\\”
The clause, however, has been interpreted as providing protection
regarding \\\”every indictment or information charging a party with a
known and defined crime or misdemeanor.\\\” The clause, it has been held,
does not prevent separate trials by different governments, and the
state and federal governments are considered \\\”separate sovereigns\\\”.
Thus, one may be prosecuted for a crime in a state court, and also
prosecuted for the same crime in another state, a foreign country, or