The debate over whether all states should be required to use grand juries has garnered considerable attention, especially given the complex history of constitutional law in the United States. According to the ScotusBlog, the Fifth Amendment provides the right to be criminally accused by a grand jury, but this requirement does not extend to the states because the Bill of Rights historically applies only to federal cases. As noted, this principle was upheld in cases like Hurtado v. California, which rejected the notion of incorporating the federal grand jury right into state law.
Today, the question of whether the grand jury right should be incorporated against the states under the Fourteenth Amendment remains controversial. The incorporation doctrine, which has been used to apply most provisions of the Bill of Rights to the states, has mostly bypassed the grand jury right. Arguments against incorporation often hinge on practical implications: incorporating this right could disrupt established state procedures, given that 66 million criminal cases are charged annually across states, many without grand jury indictments.
Moreover, critics of the current federal grand jury system highlight its secretive nature, prosecutorial dominance, and lack of defense rights, raising doubts about the fairness and efficacy of grand juries. Indeed, the notion of fundamental fairness is central to the debate. While the Hurtado court found California’s alternative system fair, the debate over what constitutes due process continues. Advocates for the grand jury, such as Dean Roger Fairfax, argue for its incorporation based on community involvement in the judicial process, despite widespread calls for reform.
The debate is likely to persist, as the current Supreme Court shows interest in re-evaluating established precedents. Justice Neil Gorsuch’s opinions reflect a belief in broader application of constitutional protections, suggesting that the grand jury right may soon be reexamined. Ultimately, the decision to mandate grand juries across all states involves not just legal interpretations but also practical considerations regarding the impact on state judicial systems.