SCOTUSblog By Rory Little 11/21/2025
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’s, 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.
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ConclusionAs 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.
More:
https://www.scotusblog.com/2025/11/should-all-states-have-to-use-grand-juries/
