Should all states have to use grand juries?

ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law.

The Constitution’s first 10 Amendments (the Bill of Rights) list a number of criminal procedure guarantees (because the 1790 Framers, criminals all in the eyes of their former government, were unhappy with their treatment by the British). Among these is a right to be criminally accused by a grand jury. Specifically, the Fifth Amendment begins with an affirmation that “[n]o person” can be charged with any “infamous” crime unless by “presentment or indictment of a Grand Jury.” Yet today, over half the states make the use of a grand jury optional, and states such as Connecticut and Pennsylvania have abolished their use altogether. A careful exploration of how and why this is true requires more words than usual, so please bear with me and consider this a “double issue.”

Grand juries are one-sided proceedings with only a prosecutor participating, and grand juries almost never fail to charge what the prosecutor asks. So a rare decision of a grand jury declining to charge can become popular media news. In 2025 some cheered, and others decried, the refusal of a Washington D.C. grand jury to indict a “sandwich throwing” protestor during ICE enforcement operations. A decade earlier, the political “sides” of critics and supporters were switched, when grand juries declined to indict police officers charged with killing unarmed black men. And just this week, grand jury procedures are back in the news. The question whether the use of grand juries is constitutionally required dates back at least 157 years. I think it is likely to receive more Supreme Court attention soon.

What is a “grand” jury?

In general, although the precise procedures differ significantly among jurisdictions, a grand jury is an assemblage of a dozen to two dozen citizens who decide whether there is probable cause – not a finding of guilt – to initially charge someone with a crime and begin the full criminal process. The procedure is preliminary to and different from a “petit” 12-person jury – what most people think of as a “regular” jury that might later decide on guilt or innocence at a trial. No judge or defense attorney is usually allowed in a grand jury proceeding, and a prosecutor usually oversees the process in complete secrecy. Because the prosecutor runs the show, grand juries almost never fail to return an indictment on charges that the prosecutor requests. And the reality is that the great majority of criminal cases never involve any jury at all, because waivers of such protections are routinely included in guilty pleas.

Starting point: the Bill of Rights does not apply to the states

Although grand juries are required by the Fifth Amendment to charge serious criminal cases in federal courts, they are not required in state cases because, as the caption above notes, the Bill of Rights does not apply to the states. 

This surprises most law students, let alone most Americans. Indeed, during an oral argument early in his tenure, Justice Neil Gorsuch expressed incredulity at the idea. (I published a column at the time explaining the doctrine and critiquing Gorsuch, and Justice Brett Kavanaugh’s, error in this regard.) But the caption is true and has always been accepted as settled. Relatively soon after the Bill of Rights was enacted, Chief Justice John Marshall, who was present at the framing, explained that the Bill of Rights was intended to apply only to the new federal government, and “not as applicable to the States.” In Barron v. Baltimore the chief wrote for a unanimous court that this interpretation was “universally understood” as “part of the history of the day.” The first 10 amendments had been proposed by various states as a condition of ratification to “quiet fears” that the federal government would be too powerful. (I italicize because readers should pay attention to the use of state, versus federal, throughout this column.) In Barron, because a claim that a state had violated the Fifth Amendment presented no federal question, there was no federal jurisdiction (that is, federal court authority) to even address the case. 

Barron’s holding was immediately accepted as accurate constitutional doctrine, and it firmly remains doctrine today. The Bill of Rights does not, and was never intended to, apply to the states. But then, in 1868, the 14th Amendment was adopted.

The 14th Amendment does apply to the states, but it mentions no specific criminal process rights.

Following the Civil War, a reconstituted Congress proposed and adopted three amendments in quick succession, including the 14th Amendment, ratified in 1868. States, rebellious or otherwise, would now be constrained by express constitutional language. Most specifically, section 1 of the 14th Amendment provides three broad, yet undefined, restrictions: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny … the equal protection of the laws…”

The Supreme Court quickly noted in 1873 that the Civil War amendments were intended to impose “additional restraints upon … the States.” But in contrast to the Bill of Rights, the 14th Amendment did not list specific rights, nor did it explain what “privileges or immunities” or “due process” means. As a result, disputes about the specific intent and meaning of the 14th Amendment’s “grand general phrases” have plagued our courts throughout the subsequent 157 years.  

The meaning of “privileges or immunities” came quickly under examination. In The Slaughterhouse Cases, decided in 1873, live animal-butchering businesses challenged Louisiana state laws regulating their “noxious” and “unwholesome trade.” According to these businesses, the ability to practice an unregulated trade was constitutionally protected from state interference by all three phrases of the 14th Amendment’s section 1. The court, recognizing the importance of the cases, ordered argument and then reargument a year later, before holding that “privileges and immunities” did not go “beyond the very few express limitations … upon the States” expressed in the body of the Constitution. This did not include applying the Bill of Rights to the states, or applying other rights not found in the Constitution, and Barron was left intact. As for “due process,” the court summarily concluded in a single paragraph that “under no construction of that provision that we have ever seen” could Louisiana’s state regulations be held unconstitutional.

In recent years, a number of scholars and even justices have suggested Slaughterhouse was wrong about the “privileges or immunities” clause. But for over a century the decision has uniformly been understood to deprive that clause of any power to apply the Bill of Rights to the states.

Incorporation (briefly): the constitutional solution to Slaughterhouse

Just as “water seeks its own level” and hydraulic pressure will force a liquid toward any available opening, so too a free people will seek any available path toward liberty. If one path (or legal theory) to freedom for a criminal defendant is blocked, criminal litigators will seek another.

Once Slaughterhouse denuded the 14th Amendment’s “privileges or immunities” clause of any significant use for protecting individual rights, attorneys seeking the protection of the Bill of Rights for their clients against states’ actions began to push another theory. To summarize decades of twisting and turning constitutional litigation, the theory of “incorportation” was developed to apply specific provisions of the Bill of Rights against the states. The doctrine has now been embraced, albeit with lengthy controversy, by the Supreme Court. The details of the story are far too complicated (and fun!) to do them justice even in this longer-than-usual column. But in brief: Soon after Slaughterhouse, lawyers began to argue that the “due process” clause in the 14th Amendment (“No state shall … deprive any person of life, liberty, or property, without due process of law”) was meant to include all of the Bill of Rights, because (as the theory went) “[n]o state” could deny liberty to a criminal defendant if those specific provisions were not complied with. In this way, the preclusive rulings of Barron and Slaughterhouse could be avoided without overruling them. 

For many years, this theory was routinely rejected. But, over time, chinks in the armor of those cases emerged. In 1897, the Supreme Court ruled that the Fifth Amendment required states to provide “just compensation” when taking private property for public use under the 14th Amendment’s due process clause. In 1925 the same idea was applied regarding the First Amendment’s right to free speech (that is, states could not criminalize speech or writing without providing certain exceptions to do so). But these were rare, non-criminal, exceptions. The argument that the criminal procedural protections of the Bill of Rights could be applied in state cases was routinely rejected for almost a century. 

Hurtado, the first “incorporation” case, rejected the theory

Now let us return to the grand jury clause – bringing us to the 1884 case of Hurtado v. California, which is really the first “incorporation” theory case. In the early 1870s, Joseph Hurtado was charged with murdering Jose Antonio Stuardo. After he was convicted and  sentenced to death, Hurtado objected that he had never been charged by a grand jury. 

On appeal, the Supreme Court affirmed a prior ruling of the California Supreme Court that the federal grand jury right did not apply to the states. Rejecting an argument based on the Fifth Amendment’s grand jury clause was easy, because Barron stood firmly against it. And Slaughterhouse stood firmly against finding grand juries to be a type of “privileges or immunities” that states must guarantee. The court did recognize that state courts were divided on whether the 14th Amendment’s guarantee of “due process” required a Fifth Amendment grand jury. Ultimately, however, the 7-1 majority noted that the Fifth Amendment’s specific grand jury guarantee was left out of the 14th Amendment’s “due process” clause, and that the “natural and obvious inference” was that a grand jury was not a constitutionally required part of due process in state cases. Meanwhile, the court found that California’s system of charging crimes – initiated by a prosecutor’s information (the formal charging document) and then subject to immediate judicial evaluation with “the aid of counsel” and “cross-examination of the witnesses” – did not deny fundamental due process because it “carefully considers and guards the substantial interests of the prisoner.”  

So far, “selective” versus “total” incorporation is the rule

Sixty years after Hurtado, racist state criminal justice systems drove the court to apply, for the first time, a Bill of Rights provision against a state criminal judgment. In the 1932 case of Powell v. Alabama and the 1936 case of Brown v. Mississippi, the Supreme Court reversed criminal death penalty judgments for several Black defendants, finding that deprivation of the right to counsel, or the use of tortured confessions, denied the defendants due process within the meaning of 14th Amendment. To be clear, these decisions never used the term “incorporation” nor did they say they were applying the Fifth or Sixth Amendments. But breaching the bar of Barron and Slaughterhouse in state criminal cases had begun. (The films 13th and Amend are recommended here.)

A decade later, a pivotal debate on incorporation found expression between Justices Felix Frankfurter and Hugo Black in Adamson v. California. The state’s criminal procedures were once again challenged (with California now producing an outsized number of criminal convictions). A 5-4 majority ruled that permitting a prosecutor to comment to the jury about a defendant’s decision not to testify did not violate the Fifth Amendment’s guarantee that no person may be “compelled in any criminal case to be a witness against himself,” concluding that it was not fundamentally unfair and invoking Barron and a long line of losing decisions. (Note: Adamson was overruled 18 years later in Griffen v. Calfornia.) 

Both Frankfurter and Black employed the word “incorporated” to capture their disagreement. Frankfurter, concurring, wrote that “the belief that the Fourteenth Amendment was a shorthand summary of the first eight Amendments” had been so routinely rejected by then that it “no longer called for discussion;” he wrote for the full court the next term that “the issue is closed.” At most, Frankfurter wrote, the court had engaged (and should engage) in “selective incorporation,” applying specific Bill of Rights guarantees judged to be so “fundamental” to “liberty and justice” that they must be part of the 14th Amendment’s “due process.” The Adamson majority viewed this as the “natural and logical interpretation” of the clause. Not all the specifics of the Bill of Rights would apply; the court’s job was instead to determine, in a criminal case, whether a state’s practice denied defendants a “fair trial” which is what the justices believed the undefined concept of “due process” required. 

By contrast, and in dissent, was Black’s assertion that the entire Bill of Rights had been intended by the 14th Amendment to be “applicable to the states” – “total incorporation” as this view has come to be known. Black (a former U.S. senator) offered an extensive examination of the 14th Amendment’s legislative history to support the idea. Two years later law professor Charles Fairman offered a detailed rebuttal of the same legislative history, and soon after that law professor William Crosskey offered a rebuttal to Fairman. 

The debate (whether incorporation of the Bill of Rights’ provisions into the 14th Amendment’s due process clause should be “total” or done selectively), has gone on and on and on both inside and outside the court. So far, selective incorporation has prevailed, with most but not all of the provisions of the Bill of Rights now “incorporated” against the states. Starting in the 1960s, the court has overruled over half a dozen older decisions to the contrary. (Indeed, it should not go unnoticed that the court has even gone beyond the Bill of Rights, ruling in the 1970 case of In re Winship that a constitutionally-unmentioned right to find criminal conviction facts beyond a reasonable doubt applies to the states through the same 14th Amendment due process theory.) 

Why has the grand jury right not been incorporated?

Given that the Supreme Court has accepted the idea of constitutional incorporation, and has overruled many precedents that had rejected the theory, why does Hurtado still stand? 

Perhaps most prominently, incorporation of the grand jury right today would require the overruling of this 150-year old precedent, on which many states (over half) have long and significantly relied. If the estimate of 66 million criminal cases charged annually across the states is correct, a huge number are charged by information and not grand jury. Requiring states to institute a grand jury system would therefore dramatically disrupt and complicate long-established criminal justice processes, and even possibly upset long-settled convictions. 

Indeed, when the court overruled a less-established precedent to incorporate a non-textual unanimity requirement for criminal trial juries in Ramos v. Louisiana, Justice Samuel Alito dissented, going out of his way to note the implications this could have on Hurtado. Alito pointed out that the non-incorporation of the grand jury right “is critically important to the 28 States” that do not require it. Chief Justice John Roberts and Justice Elena Kagan joined that part of Alito’s dissent. Thus the grand jury incorporation debate and its implications for the states might be said to span the ideological breadth of the current court.

But should the right to grand jury charging be incorporated?

This is a difficult question; and stare decisis concerns (an important doctrine counseling adhering to past decisions) sometimes do not outweigh constitutional concerns. The question, as is so often the case, is what constitutional terms mean when they are undefined by the text?

As Frankfurter noted in Adamson, “at the time of the ratification of the Fourteenth Amendment, the constitutions of nearly half of the ratifying states did not have” a grand jury requirement. If the intent of those 1868 constitutional “Framers” controls, one can easily draw the implication that they did not intend to declare unconstitutional the criminal procedure systems of half the Union.

Even if one looks to the intent of the Fifth Amendment’s Framers in 1790, the precise dimensions and procedures of what “grand jury” and “presentment” meant are unclear. The right to grand jury charging is certainly interpreted differently today, even among jurisdictions that require it. To take just one example, the federal government and the state of New York (an original “framing” state) apply very different grand jury procedures. Moreover, if a grand jury in 1790 was drawn from a local community that could be counted on to reflect both personal knowledge as well as views of the community, that may no longer be true today. Additionally, the court has ruled, in United States v. Williams, that although the Fifth Amendment grand jury right may serve as a “buffer … between the Government and the people,”  particular “modes of grand jury procedure” are not constitutionally required. Thus if an unexpressed right to a charging grand jury were incorporated today, it is not at all clear what aspects would be mandated by the Constitution. One can imagine decades of subsequent wrangling (as happened with the right to jury trial, from Duncan v. Louisiana in 1968 until Ramos v. Louisiana in 2020).  

As for fundamental fairness, listing all the criticisms and concerns about the federal grand jury system would fill a column all its own. Lack of counsel; impenetrable secrecy; unreviewable prosecutorial control; rank uninformed hearsay; no exculpatory evidence required – that’s just a short list. By contrast, the Hurtado court found that California’s no-grand-jury charging system was fundamentally fair; many practitioners today agree. And the role of knowledgeable, local community members rigorously checking the government, if it existed in 1790, is all but a fiction now. For these reasons, calls for grand jury reform are legion, and calls to abolish grand jury charging are not uncommon.

Dean Roger Fairfax has presented arguments (as have other scholars – but notably not many practitioners) that the grand jury right should now be incorporated against the states, based largely on the wave of almost total incorporation in the last half century and the “normative policy” of “the infusion of community wisdom into the criminal process.” Meanwhile, the rare sandwich-throwing grand jury declination (see my introduction) cannot be ignored. Ultimately, my column today is offered not to advocate a firm conclusion, but to explain and offer some materials to qualify any view that incorporation is a foregone conclusion.

Conclusion

As I’ve noted previously, Gorsuch has been the leader in a “revolution” of expanding and defining the constitutional right to petit jury trials. Just last month, he again dissented from the denial of review in a trial jury case, asking whether the Seventh Amendment civil jury trial right should be incorporated against the states. As I noted at the top, Gorsuch already appears to believe that total incorporation is a foregone conclusion and is constitutionally required. I have no doubt that the grand jury right will soon appear on his, and perhaps the court’s, publicly-acknowledged radar.  

But the question whether Hurtado should be overruled and the grand jury process be constitutionally required, and defined, for all the states – including the majority that do not currently require it as well as the states that do not interpret it as the federal system does – raises deep constitutional interpretation and application questions, and carries huge practical consequences. Meanwhile, the right to initial grand jury charging is hardly so universally loved as the Hollywood portrayal of the right to petit jury trials, while the grand jury’s critics are many. The “politics” or ideology of the question are also not at all clear, running in different directions depending on the case. Given all this, the only thing I’m confident about is that the justices will pause long and carefully before deciding to disrupt 150 years of reliance in millions of criminal cases across well over half the nation.