Interrogating the Nonincorporation of the Grand Jury Clause

Authors

Roger FairfaxFollow

Document Type

Article

Publication Date

2-2022

Journal

Cardozo Law Review

Volume

43

Issue

3

First Page

855

Last Page

919

Abstract

With the Supreme Court's recent incorporation-in Ramos v. Louisiana of the Sixth Amendment's jury unanimity requirement to apply to the states, the project of "total incorporation" is all but complete in the criminal procedure context. Virtually every core criminal procedural protection in the Bill of Rights has been incorporated through the Due Process Clause of the Fourteenth Amendment to constrain not only the federal government but also the states with one exception. The Fifth Amendment's grand jury right now stands alone as the only federal criminal procedural right the Supreme Court has permitted states to ignore. In one of the earliest incorporation decisions following the ratification of the Fourteenth Amendment, the Court held that the right to grand jury indictment enshrined in the Fifth Amendment was not a requisite of due process and, therefore, could be dispensed with in state criminal proceedings. The decision, which predated the Court'sselective incorporation jurisprudence that eventually applied every other criminal procedural right to the states, triggered rapid decline in the prestige of the grand jury in American legal culture over more than a century. More recently, the grand jury justifiably has come under fire for its role in the shameful trend of decisions in tragic cases involving police killings of African Americans, fueling calls for the abolition of the grand jury altogether. Despite the significant headwinds facing the grand jury, however, there are critical and impactful roles for it to play in the protection of individual liberty, in the infusion of community wisdom into the criminal process, and in the pursuit of important societal goals, including racial justice. This Article argues that it is time to interrogate the nonincorporation of the grand jury right, applying the touchstones of modern incorporation jurisprudence, including history, and constitutional logic, and-despite criticisms of its value and efficacy-policy consideration animated by the grand jury's enduring relevance and its prospective impact in the criminal legalsystem and beyond.

Recommended Citation

Roger Fairfax, Interrogating the Nonincorporation of the Grand Jury Clause, 43 Cardozo Law Review 855 (2022).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/2085