No Fifth Amendment Right to a State Grand Jury Indictment
The relevant portion of the Fifth Amendment to the Constitution of the United 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, 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; . . .
HUTRADO v. CALIFORNIA, Supreme Court of the United States (1884), 110 U.S. 516, 4 S.Ct. 111
FACTS:
In 1882, California penal code provided that when it appeared that an offense had been committed and that sufficient cause existed to believe that a particular person had committed the offense, the district attorney shall file an information charging the person with the offense. The state filed the customary information against defendant Hurtado charging him with the capital murder of one Jose Stuardo. Pursuant to the information, Hurtado stood trial after which the jury found him guilty of capital murder. Later, the trial court sentenced the defendant to death.
Hurtado, through counsel, argued that the verdict and penalty were void, having been obtained in violation of the defendant's right to due process of law guaranteed by the Fourteenth Amendment. Specifically, Hurtado argued that he had a constitutional right to be indicted by a grand jury rather than face trial pursuant to an information. This legal position was universally rejected from the trial court to the highest court of the state. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
In a state criminal prosecution for a capital offense, does a defendant have the right under the due process guarantee of the Fourteenth Amendment to an indictment by a grand jury?
HELD: NO.
RATIONALE:
MATTHEWS, J.
[I]t is maintained on behalf of the plaintiff in error [Hurtado] that the phrase "due process of law" is equivalent to "law of the land " as found in the twenty-ninth chapter of Magna Charta that by immemorial usage it has acquired a fixed, definite, and technical meaning; that it refers to and includes, not only the general principles of public liberty and private right, which lie at the foundation of all free government, but the very institutions which, venerable by time and custom, have been tried by experience and found fit and necessary for the preservation of those principles, and which, having been the birthright and inheritance of every English subject, crossed the Atlantic with the colonists and were transplanted and established in the fundamental laws of the state; that, having been originally introduced into the Constitution of the United States as a limitation upon the powers of the government, brought into being by that instrument, it has now been added as an additional security to the individual against oppression by the states themselves; that one of these institutions is that of the grand jury, an indictment or presentment by which against the accused in cases of alleged felonies is an essential part of due process of law, in order that he may not be harassed and destroyed by prosecutions founded only upon private malice or popular fury.
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It is urged upon us, however, in argument, that the claim made in behalf of the plaintiff in error [Hurtado] is supported by the decision of this court in Murray's Lessee v. Hoboken Land & Imp. Co. , 18 How. 272. There, Mr. Justice CURTIS, delivering the opinion of the court, after showing . . . that due process of law must mean something more than the actual existing law of the land, for otherwise it would be no restraint upon legislative power, proceeds as follows: "To what principle, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country." This, it is argued, furnishes an indispensable test of what constitutes "due process of law;" that any proceeding otherwise authorized by law, which is not thus sanctioned by usage, or which supersedes and displaces one that is, cannot be regarded due process of law. But this inference is unwarranted. The real syllabus of the passage quoted is that a process of law which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows, that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned that account as not due process of law. The answer was however exceptional it may be, as tested by definitions and principles or ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law of the land, and, therefore, is due process of law. But to hold hat such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws the Medes and Persians.
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In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights. There were limitations upon all the powers of government, legislative as well as executive and judicial. It necessarily happened, therefore, that as these broad and general maxims of liberty and justice held in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but in that application, as it would be incongruous to measure and restrict them the by the ancient customary English law, they must be held to guarantee, not particular forms of procedure, but the very substance of individual rights to life, liberty, and property.
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Munn v. Illinois, 94 U.S. 113-134, the Chief Justice, delivering the opinion of the court, said, "A person has not property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will or even at the whim of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances." And in Walker v. Sauvinet, 92 U. S. 90, the court said: "A trial by jury in suits at common law pending in state courts is not, therefore, a privilege or immunity of national citizenship which the states are forbidden by the Fourteenth Amendment to abridge. A state cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process according to the law of the land. This process in the states is regulated by the law of the state." In Kennard v. Louisiana ex rel., 92 U.S. 480 the question was whether a mode of trying the title to an office in which no provision for a jury, was due process of law. Its validity was affirmed. The Chief Justice, after reciting the various steps in the proceeding, said: "From this it appears that ample provision has been made for the trial of the contestation before a court of competent jurisdiction; for bringing the party against whom the proceeding is had before the court and notifying him of the case he is required to meet; for giving him an opportunity to be heard in his defense; for the deliberation and judgment of the court; for an appeal from this judgment to the highest court of the state, and for hearing and judgment there.
A mere statement of the facts carries with it a complete answer to all the constitutional objections urged against the validity of the act." And Mr. Justice Miller, in Davidson v. New Orleans, 96 U.S. 97-1055, after showing the difficulty, if not the impossibility, of framing a definition of this constitutional phrase which should be "at once perspicuous, comprehensive, and satisfactory, " and thence deducing the wisdom " in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require," says, however, that "it is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issue affecting it, he has by the laws of the state fair trial in a court of justice, according to the modes of proceeding applicable to such a case. " [Citations omitted.]
We are to construe this phrase [due process of law] in the Fourteenth Amendment by the usus loquendi of the Constitution itself. The same words are contained in the Fifth Amendment. That article makes specific and express provision for perpetuating the institution of the grand jury, so far as relates to prosecutions for the more aggravated crimes under the laws of the United States. It declares that "no person shall be held to answer for 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 he be compelled in any criminal cases to be a witness against himself. " It then immediately adds: "nor be deprived of life, liberty, or property without due process of law." According to a recognized canon of interpretation, especially applicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without clear reason to the contrary, that any part of this most important amendment superfluous. The natural and obvious inference is that, in the sense of the Constitution, "due process of law" was not mean or intended to include, ex vi termini, the institution and procedure of a grand jury in any ease. The conclusion [is] irresistible, that when the same phrase was employed in the Fourteenth Amendment to restrain the action of the states, it was used in the same sense and with no greater extent; and that if in the adoption of that Amendment, express declaration to that effect. Due process of law in the latter refers to that law of the land which derives its authority from the legislative power conferred upon congress by the Constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. In the Fourteenth Amendment, by parity of reason, it refers to the law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure." The Fourteenth Amendment," as was said by Mr. Justice BRADLEY in Missouri v. Lewis, 101 U.S. 22-31, "does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding."
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The supreme court of Mississippi, in a well-considered case, Brown v. Levee Com'rs, 5O Mill. 468, speaking of the meaning of the phrase "due process of law," says: "The principle does not demand that the laws existing at any point of time shall be irrepealable, or that any forms of remedies shall necessarily continue. It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by `due process of law.'"
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It follows that any legal proceeding enforced by public authority whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.
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Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant with the right on his part to the aid of counsel and to the cross examination of the witnesses produced for the prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an offense of less grade than a felony, except misprision of treason; and in every circumstance of its administration, as authorized by the statute of California, it carefully considers and guards the substantial interest of the prisoner. It merely a preliminary proceeding, and can result in no final judgment, except as the consequence of a regular judicial trial, conducted precisely as in cases of indictments. In reference this mode of proceeding at the common law, and which he says "is as ancient as the common law itself," Blackstone adds (4 Comm. 305): "And as to those offenses in which informations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction, and were carried on in a legal and regular course in his majesty's court of king's bench, the subject had no reason to complain. The same notice was given, the same process was issued, the same pleas we allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment."
For these reasons, finding no error therein, the judgment the supreme court of California is affirmed.
Notes
1. Consult the current California law concerning the issuing of informations. According to Hurtado, California has no constitutional need to offer the grand jury for any offense unless the state law or constitution are changed. Would you prefer the grand jury system for all serious cases? Would it make any difference if you were a prosecutor? Why or why not?
2. Hurtado involved the use of an information, but state practice required the prosecutor present the case through a preliminary hearing prior to the issuance of an information. What would the decision be any different if the prosecutor could just issue the indictment without any judicial screening? See Lem Woon v. Oregon, 229 U.S. 586 (1913), where a serious case could be brought on the word of the prosecutor alone. The Court stated that due process does not require the state to adopt the procedure of the grand jury, so the Court noted that it could find no ground for requiring a hearing prior to issuance of an information.
Right to Grand Jury Indictment for Serious Federal Crimes
UNITED STATES v. MORELAND, Supreme Court of the United States (1922), 258 U.S. 433, 42 S.Ct. 368
FACTS:
A proceeding against defendant Charles Moreland, initiated by information, resulted in his being convicted of the crime of willfully refusing to support his two minor children. The juvenile court in the District of Columbia sentenced Moreland to serve six months at hard labor at the local workhouse. The defendant perfected his appeal to the Court of Appeals wherein he renewed his allegation that the Fifth Amendment guarantees a person the right to a grand jury indictment in all federal prosecutions.
The Court of Appeals agreed with Moreland's legal analysis and reversed the conviction with instructions to the juvenile court to dismiss the case. The Supreme Court granted certiorari.
PROCEDURAL QUESTION:
Does the possibility that a defendant might receive hard labor as part of punishment for crime constitute an infamous crime for which the Fifth Amendment requires a grand jury indictment prior to initiating a federal prosecution?
HELD: Yes.
RATIONALE:
Mr. Justice McKENNA delivered the opinion of the Court. ...
The court [of appeals] considered that it was constrained to decide that the judgment was in violation of the Fifth Amendment, and, therefore, to reverse it on the authority of Wong Wing v. United States, 163 U.S. 228, 16 Sup.Ct. 977, 41 L.Ed. 140.
The United States resists both the authority and extent of that case by the citation of others, which, it asserts, modify or overrule it. A review of it, therefore, is of initial importance.
Certain statutes of the United States made it unlawful under certain circumstances for a Chinese laborer to be in the United States, and provided for his deportation by certain officers, among others, a Commissioner of a United States court. And one of them (Act of 1892 [Comp. St. Section 4318]) provided that, if a Chinese person or one of that descent was "convicted and adjudged to be not lawfully entitled to be or remain in the United States," he should "be imprisoned at hard labor for a period not exceeding one year, and thereafter removed from the United States."
Wong Wing, ... was arrested and taken before a Commissioner of the Circuit Court for the Eastern District of Michigan and adjudged to be unlawfully within the United States and not entitled to remain therein. It was also adjudged that he be imprisoned at hard labor at and in the Detroit House of Correction for the period of 60 days.
The court, considering the statutes, said they operated on two classes - one which came into the country with its consent; the other which came in without consent and in disregard of law - and that Congress had the constitutional power to deport both classes and to commit the enforcement of the law to executive officers.
This power of arrest by the executive officers and the power of deportation were sustained; but the punishment provided for by the act, and which was pronounced against Wong Wing, that is, imprisonment at hard labor, was decided to be a violation of the Fifth Amendment; he not having been proceeded against by presentment or indictment by a grand jury.
The court noted the argument and the cases cited and sustained the power of exclusion, but said that when Congress went further, and inflicted punishment at hard labor, it "must provide for a judicial trial to establish the guilt of the accused." And this because such punishment was infamous and prohibited by the Fifth Amendment, the conditions prescribed by the amendment not having been observed. The necessity of their observance was decided, because, to repeat, imprisonment at hard labor was an infamous punishment. In sanction of the decision, Ex parte Wilson, 114 U.S. 417, 428, 5 Sup.Ct. 935, 29 L.Ed. 89, was cited and quoted from. The citation was in point. .... The Wilson case was elaborate in the exposition of the law - its evolution and extent. The various punishments, or, we may say, the various imprisonments, to which infamy had been ascribed, were detailed, with citation of cases. In these were included, as certain, imprisonment in a penitentiary. But it was decided that the quality of infamy could attach to any imprisonment, if accompanied by hard labor.
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Wong Wing's was recognized as a claim that his sentence to imprisonment at hard labor inflicted an infamous punishment, and hence conflicted with the Fifth and Sixth Amendments of the Constitution of the United States, he not having been presented or indicted by a grand jury.
"On the other hand," the court said, "it is contended by the government that it has never been decided by this court that in all cases where the punishment may be confinement at hard labor, the crime is infamous, and many cases are cited from the reports of the state Supreme Courts, where the constitutionality of statutes providing for summary proceedings-, without a jury trial, for the punishment by imprisonment at hard labor of vagrants and disorderly persons has been upheld.
The comment was an anticipation of some things that are urged in this case. At any rate, the contrast of contentions shows unmistakably upon what the court's decision was invoked, and while it decided, as we have seen, that the commissioner had power under- the Act of 1892 to order Wong Wing deported and to sentence him to imprisonment, Congress could not legally invest the commissioner with power to make hard labor an adjunct of the imprisonment. It was, in effect, said that the adjunct made the imprisonment infamous, and beyond the power of legislation to direct, without making provision "for a judicial trial to establish the guilt of the accused." Wong Wing was therefore discharged from custody.
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We have dwelt on this matter at length because we think more is involved than the power to deport aliens, or to punish them for illegal entry into the country - more than to deliver one from punishment who has defied the orders of a court, that enjoined upon him the manifest duty of supporting his minor children. It concerns the recognition and enforcement of a provision of the Constitution of the United States expressing and securing an important right. And the right, at times, must be accorded one whose conduct tempts to a straining of the law against him.
The ultimate contention of the United States is that the provision of the Act of March 23, 1906, for punishment by fine or imprisonment are severable, and that, therefore, it was error in the Court of Appeals in holding the act unconstitutional, and in directing the dismissal of the case, instead of sending it back for further proceedings.
The contention is untenable. It is what sentence can be imposed under the law, not what was imposed, that is the material consideration. When an accused is in danger of an infamous punishment, if convicted, he has a right to insist that he be not put upon trial, except on the accusation of a grand jury. Ex parte Wilson and Mackin v. United States, supra.
Judgment affirmed.
Notes
1. Why was Moreland's alleged crime considered an "infamous" crime for which a grand jury indictment was dictated by the Fifth Amendment? Do you think it was an extremely serious offense?
2. In many states, the prosecutor has the option of proceeding with a case by the use of the grand jury or by information. If you were the prosecutor which system would you prefer? Would it make any difference if you were a potential target of the prosecutor?