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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

What Supreme Court decision said states do not have to use grand juries?

I find your web site very interesting and informative. I am currently trying to learn as much as possible about the Grand Jury process in Montana and was astonished to see that there was a decision somewhere that concluded the States do not have to comply with the 14th amendment to the U.S. Constitution regarding Grand Juries. Could you give me a citation or possibly even post that decision on your web site. As you know, in Montana only a District court Judge can call a Grand Jury. Thank you for your web site.


Thank you very much for the kind comments about the web site. The Supreme Court case you asked about is Hurtado v. California, 110 U.S. 516 (1884). In Hurtado the Court held that the clause in the Fifth Amendment which requires the use of grand juries to indict for serious crimes (e.g., felonies) does not apply to the states, so states can use grand juries or not, as they choose. Prosecutors in the federal system have to use a grand jury to bring charges for felonies, unless the defendant waives that right, because this part of the Fifth Amendment is binding on federal prosecutors and federal courts.

As you can see, it is quite old, having been decided in the early years (relatively, anyway) after the adoption of the 14th amendment. I do not know what would happen if anyone tried to get the court to reconsider the issue. You can no doubt find the decision in FindLaw, www.findlaw.com - they have a database of Supreme Court decisions.





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