Note: Originally published May 12th, 2009 at Brushfire Sparks.
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on 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.”
The fifth amendment contains several different protections all of which fall generally under prevention of abuse of legal authority by the government. The two most common protections are prevention of double jeopardy and the protection against self-incrimination (I plead the fifth). It would be best if we break these specific protections out and review them separately.
The first protection provided by the fifth is the prevention of wrongful indictment. The amendment establishes the basic parameters of the Grand Jury, and provides for the jury as the indicting entity in capital of “infamous” cases. Existing precedent has determined that “infamous” crimes are defined by the punishment designated if a guilty verdict is rendered. Thus the federal government can not charge you with murder without seating a grand jury to review the case against you. It is not necessary for States to seat a grand jury in capital cases because the fifth amendment has not been incorporated under the fourteenth. This gives the states the right to abolish grand juries (which many have). In most states a preliminary hearing now replaces the grand jury process.
There is a great deal of flexibility under a grand jury. Certain requirements regarding evidence do not apply under a grand jury. Additionally, there is no requirement that individuals brought in for testimony be represented by an attorney. You can not be convicted by a grand jury, only indicted. The purpose of the grand jury is to review the evidence presented by the government and determine if there is sufficient ground for charges to be made. Because it is a grand jury, any resulting charges would be for a capital or infamous crime.
The exception to the grand jury clause is for individuals serving in the military in times of peace or war. Incidentally it also does not cover those who serve in the government militia. This allows for the Uniform Code of Military Justice, a set of rules that apply only to those who wear the uniform of our armed services. Because the military is excluded from the grand jury protection, members can be indicted on capital crimes without the need for the juries review. This sets the table for the courts marshal, an other military tribunals.
This first portion of the fifth amendment may seem a bit less important than others but keep in mind, the protection arises from English common law based in the Magna Carta as a way of preventing frivolous capital charges against a citizen. Were the government able to indict a person for murder without some type of due process, they could spend years awaiting a trial that would find them innocent, but still cost them a great deal of their life. By protecting the people against such charges, the first portion of the fifth amendment prevents the government from using the judiciary as a tool against the people. Like other protections in the Bill of Rights, the grand jury requirement limits the ability of government of abuse its power, thus limiting government. That was the intent of the founders.
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