In theory, a grand jury is still available as a check on the government’s power of prosecution
The text of the Fifth Amendment to the Constitution, well known for declaring a right against self-incrimination, begins by addressing another issue. “No person,” it reads, “shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” It goes on to exclude military trials from this protection. It is common knowledge, instilled by numerous police trials, that grand juries routinely indict persons accused by prosecutors. As the saying goes, “A prosecutor can indict a ham sandwich.”
All of which raises the question: how did the right to grand jury indictment come to be included in the Bill of Rights? And does it provide any effective protection for citizens today?
The answer to the first question is rooted in a history that was intimately familiar to the Framers of the Constitution but which is little known by the great mass of Americans today. For an English grand jury had played a crucial role in the series of events that resulted in what has long been known as the Glorious Revolution of 1688-89.
In 1681 a raging issue in England was “exclusion”— whether James, Duke of York, the younger brother of King Charles II, should be excluded from the throne because he was a Catholic and
hence likely to follow the absolutist policies of his Catholic cousin, King Louis XIV of France. Leading the fight for exclusion in Parliament was Anthony Ashley Cooper, the 1st Earl of Shaftesbury, who had been an ally of Charles II in the 1670s but was now an adversary, as Charles strongly opposed exclusion.
In July 1681 Shaftesbury was arrested and sent to the Tower of London to await trial in by the House of Lords, which seemed sure to order him executed. But first, a true bill had to be issued by a grand jury, whose members were chosen by the pro-exclusion Lord Mayor of London. In November the grand jury met and closely questioned and discredited the Crown’s witnesses and returned a verdict of ignoramus— we know of no reason he should be charged. Shaftesbury was released, to the cheers of his supporters.
In 1682 the King engineered the appointment of a new lord mayor and sheriff, who seemed sure to appoint grand jurors who would rule against Shaftesbury, who fled to Amsterdam and died there in 1683. But James, after succeeding to the throne, was ousted by the Glorious Revolution in 1688, and the Protestant William and Mary installed on the throne. John Locke, who had been Shaftesbury’s employee, was the great philosophic justifier of these events, and a right to grand jury indictment was seen as a protection of liberties.
So it is understandable that the Framers of the Constitution, who copied many provisions from the Glorious Revolution Parliament, recognized the grand jury as a protection of liberties. And in theory it is still available as a check on the government’s power of prosecution, though seldom effectively employed for that purpose.