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Incorporating the Grand Jury Right Against the States
Andrew Hyman

Over at Prawfsblawg, Professor Rory Little wrote on December 3: "the respected NACDL (National Association of Criminal Defense Lawyers), which has filed amicus on Timbs’ behalf regarding Excessive Fines, would surely oppose (as would others on all sides of the criminal justice aisle) incorporation of the Grand Jury clause."  I am not so sure that NACDL would take that position, because incorporating the grand jury right could still allow states to offer prosecution by information if a person waives the grand jury right.  Here’s what Rule 7 of the Federal Rules of Criminal Procedure says:
An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant—in open court and after being advised of the nature of the charge and of the defendant's rights—waives prosecution by indictment.
Moreover, defendants who live in states that do not offer (and do not want to offer) prosecution by information would probably appreciate changes in their states’ grand jury systems if those systems are required to conform with the Fifth Amendment.  For example, when elements enhance or aggravate a crime, they can extend a defendant's prison sentence, and they would have to be submitted to a grand jury under SCOTUS precedent in Blakely v. Washington (2004), even though various state grand jury systems (like Oregon's) do not operate that way now.
Regarding the waiver provision blockquoted above, it has been in the Fed. R. Crim. P. since 1946.  Back in 1884 when the U.S. Supreme Court declined to apply the Fifth Amendment’s Grand Jury Clause against the states, the Court apparently had no idea that federal defendants could choose prosecution by information.  If such a waiver is legitimate at the federal level per Fed. R. Crim. P., then that might make incorporation of the grand jury right against the states more palatable today than it was in 1884.  But, even if waiver is not really legitimate under the Fifth Amendment, incorporation of the grand jury right might still have policy advantages; for example, Professor Richard Myers wrote in 2012: “The ability to waive indictment and proceed via information allows the collusive prosecutor to proceed without the oversight of the public in the form of the grand jury.”
Professor Roger Fairfax describes some of the history of grand jury waiver, in a 2006 article; during the eighteenth and nineteenth centuries, “a federal defendant could not waive or forfeit the right to grand jury indictment for an infamous crime, because without an indictment a federal court had no jurisdiction over a criminal case.”  Professor Fairfax therefore questions whether the innovation in 1946 was proper: “The modern rejection of the grand jury’s jurisdictional heritage is largely without basis.”
The Grand Jury Clause of the Fifth Amendment says, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger….”  It is possible (as Fairfax suggests) that the Fed. R. Crim. P. is mistaken that this clause is waivable rather than mandatory, and possible that the authors of the Fifth Amendment understood this clause as benefiting the community and the government as well as benefiting the defendant.  Even so, incorporating only the “right” aspect of the Grand Jury Clause (which is what the language of the Fourteenth Amendment’s Privileges or Immunities Clause seems to do) would make the grand jury right waivable at the state level even if it is no longer waivable at the federal level.
Incorporation of the Grand Jury Clause might somewhat upset reliance by states upon the Court's decision in 1884 to not incorporate this right.  However, the longer that the Court gives states to switch over to compliance with the Fifth Amendment, the weaker their reliance claim would become.  As Professor Adrian Vermeule wrote in another context, "nothing prevents judges ... from engaging in ex ante sunsetting, by announcing that governmental powers will lapse on a future date certain."