Why is a Grand Jury an OPTION in the Peterson case?

“Article the 5th: No person shall be held to answer for a capital or otherwise infamous crime unless under presentment or indictment of Grand Jury…”

But the DA in the Peterson Case, and other cases in CA- seem to think that they can go directly to a trail without submitting their case to a Grand Jury. Has the 5th Admendment been changed somehow, when I wasn’t looking?:confused:

The “grand jury” provision of the 5th amendment is one that the federal courts have never found to be incorporated into the due process clause of the 14th amendment; in other words, it’s applicable to the federal government, but not the states. This used to be true of all provisions of the Bill of Rights, until a series of court cases found most of them to be applicable to the states as well. In California, grand juries are optional.

Most provisions of the Bill of Rights have now been incorporated, primarily by the Warren Court. I believe Amendments 2, 3, 7, and the Grand Jury provision of 5 are the only parts of the first 8 Amendments that are not considered binding on the States.


There is one decision holding that the 3rd Amendment applies to the States. In Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982), the Second Circuit held that the 14th incorporates the 3rd, and directed a trial on the merits of a 3rd Amendment claim against the State of New York. On remand, the District Court held that the plaintiffs’ claim had not been established on the evidence, which decision was upheld on appeal: 572 F. Supp. 44 (S.D.N.Y. 1982), aff’d. per curiam 724 F.2d 28 (2d Cir. 1983).

Well how about that!

So, what makes the grand jury provisions of the Vth any diferent than the rest?

Rights that are incorporated are those “fundamental to ordered liberty” and our “American scheme of justice” (in the Supreme Court’s view). In other words, the really important ones, like freedom of speech, or the right to an attorney in a criminal case. Other rights in the Bill of Rights aren’t as “fundamental”, like a jury in a civil case or the right to a grand jury, so long as the state provides adequate alternate measures so as to protect Due Process.

Really, it may not come down to much more than SCOTUS said that the grand jury provision wasn’t applicable to the states in 1884 in Hurtado v. California, and since then we’ve been getting along fine without any major miscarriages of justice, so the courts see no need to get rid of the long standing rule.


I can’t believe I didn’t anticipate this question.