Historical Background of the Grand Jury
The grand jury's roots stretch back to ancient Athens and pre-Norman England. The Assize of Clarendon under Henry II shaped this institution where laymen could weigh in on accusations without strict procedural rules.
In America, the grand jury concept appeared in the 1683 Charter of Liberties and Privileges. It stuck as a way to curb tyranny in the colonies. James Madison included it in the Bill of Rights without controversy.
The grand jury combined Crown law authority with everyday folk independence. Grand jurors made decisions about indictments based on available information, free from tight legal constraints. This fostered independence from judicial or royal interference.
In American hands, the grand jury served as a civilian filter against unjust prosecutions, ensuring accusations were genuine. It stood as a people's shield against overzealous government agents, earning its place in the Fifth Amendment.

The Grand Jury Clause in the Fifth Amendment
The Fifth Amendment 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…" This means you won't face federal court for serious crimes without your fellow citizens' approval.
A grand jury must review evidence and decide if there's enough to charge someone. Their job isn't to determine guilt, but to check if the government's accusations hold water.
There's an exception for military personnel: "…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." For them, military justice and court-martial apply instead.
Grand juries operate behind closed doors, with secrecy as their hallmark. They can summon witnesses, demand documents, and investigate without the procedural restrictions of trial courts. This veil of secrecy protects the accused's reputation if not indicted and ensures witness candor.
Unlike trial juries, which determine guilt beyond reasonable doubt, grand juries only need probable cause to indict. They look at the bigger picture to decide if there's enough evidence to send someone to trial.
The grand jury clause embodies our republic's essence: balancing state power with citizen wisdom. Through grand juries, citizens don't just serve the state; they stand guard over it, ensuring prosecutions begin on solid ground.
The Grand Jury in Practice
Today's grand jury has extensive investigative powers. They can summon witnesses and demand evidence, wielding subpoenas to gather documents, records, and anything crucial to the case.
Grand jury proceedings are confidential, protecting the reputations of those not indicted and encouraging witnesses to speak freely without fear of retaliation or public backlash.
The prosecutor acts as the ringmaster, presenting evidence, questioning witnesses, and outlining the criminal conduct under scrutiny. While the grand jury can investigate independently, the prosecutor drives the process forward.
The Fourth Amendment still applies to grand jury subpoenas, though its protections are somewhat relaxed compared to trial courts. Subpoenas must be reasonable and relevant to the case. Courts consider if the evidence sought is relevant to a legitimate grand jury investigation and if the need for information outweighs the burden on the subpoenaed party.
Today's grand jury remains an integral part of the American judicial system, blending investigative curiosity with the force of law, all within a fortress of secrecy.
Fifth Amendment Privilege Against Self-Incrimination
The Fifth Amendment states, "No person…shall be compelled in any criminal case to be a witness against himself." This privilege against self-incrimination is a personal firewall against prying questions that could lead to self-incrimination.
Key cases have shaped this privilege:
- Kastigar v. U.S. (1972): The Supreme Court ruled that immunity granted to a witness must be so strong that it creates a protective bubble around their testimony. If compelled to talk, what they say (and anything derived from it) can't be used to build a case against them.
- Hoffman v. U.S. (1951): The Court ruled that a defendant doesn't have to spell out exactly how an answer could incriminate them. If it's evident from the context that an answer might lead to self-incrimination or link to other criminal evidence, they can remain silent.
- Murphy v. Waterfront Commission (1964): The Court protected witnesses in civil proceedings from providing information that might incriminate them criminally.
- U.S. v. Hubbell (2000): The Court asserted that the act of producing documents could be considered testimonial. If handing over documents implicitly admits their existence, authenticity, and possession, it might be shielded under the Fifth Amendment.
This privilege applies in various settings, from grand jury inquiries to civil cases and congressional hearings. It's not limited to spoken confessions; documents and other tangible evidence might also be shielded under the "act of production" doctrine.
However, there are limits. Courts draw lines about how and when the privilege applies, particularly for business records and corporate entities. While an individual's personal and sole proprietorship records might be protected, corporate documents often aren't.
The right against self-incrimination is a dynamic, multi-faceted protection woven into American legal fabric, safeguarding citizens from unjust entanglements in prosecution.

Military Exception to the Grand Jury Requirement
The Fifth Amendment includes an exception to the grand jury requirement for cases arising in the military forces. This deviation allows for a separate justice system for those serving in the armed forces.
The Uniform Code of Military Justice (UCMJ) governs military personnel, replacing the grand jury process with courts-martial. This system is designed to maintain discipline and readiness in the military ranks, recognizing the unique circumstances and responsibilities of service members.
Two landmark Supreme Court cases have shaped the understanding of military jurisdiction:
- O'Callahan v. Parker (1969): Initially limited military court jurisdiction to service-connected crimes.
- Solorio v. United States (1987): Overturned O'Callahan, allowing military courts to try any crime committed by a service member, regardless of its connection to military service.
The military justice system aims to balance efficiency with fairness, ensuring swift action while maintaining due process. While different from civilian procedures, the UCMJ includes provisions for:
- Defense lawyers
- Rights advisories
- Appeals
These provisions help protect service members' rights within the military justice framework.
This exception reflects the practical needs of the military and the unique legal situations service members may face. It allows for a streamlined approach to justice that fits the context of military operations and responsibilities.

The grand jury stands as a critical pillar in our justice system, embodying the balance between state power and the wisdom of its citizens. It ensures that every prosecution begins on solid ground, reflecting our commitment to fairness and accountability.