Is a grand jury indictment a prerequisite under federal constitutional law for a state prosecutor to charge an individual in state court with a crime?

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larrygates | College Teacher | (Level 1) Educator Emeritus

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Although the fifth amendment states that no person is to be held for an "infamous crime" without presentment to a Grand Jury, this provision of the Constitution applies only to the federal government. Although many provisions of the Bill of Rights have been construed to provide rights against activities of the states, the Supreme Court has not extended Grand Jury protection to the states. However, most states have provisions in their constitutions which call for presentment before a grand jury for felonies. Although the Defendant may have that right by state law many persons accused of a crime waive presentment to a Grand Jury, particularly if he/she plans to enter a plea of guilty.

It would be difficult to argue that a defendant's rights were compromised because of failure to present to a Grand Jury. As presently constituted, they simply review so much of the evidence as the prosecutor chooses to present, and the defendant is not typically allowed to testify. Although it was intended to be part of the checks and balances to protect one from prosecutorial abuse, most Grand Juries simply rubber stamp charges brought by prosecutors, and therefore accomplish little.  If a "no bill" is returned by the Grand Jury, the prosecutor still has the option of re-bringing charges, as jeopardy does not attach to Grand Jury proceedings.

 

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