arrested;for;their;protests;but;also;run
over;with;tanks!;Members;of;the;Falun
Gong religious sect were rounded up
and;imprisoned;just;because;the;Com-munists believed that the sect’s teachings might lead its followers to question
the Communist Party’s tenets. Many
were held for years without ever being
charged with a crime; those who were
charged were convicted. There were no
legitimate;jury;trials.;Communist;Party
officials oversaw the judicial proceedings and did exactly what the Party told
them;to;do:;guilty;as;charged.
Many suspected terrorists, some of
them U.S. citizens, have been held in
Guantanamo;Bay,;Cuba,;for;more;than
a decade without being charged with a
crime. They are considered “enemy com-batants.”;This;means;they;are;prisoners
of war and not entitled to Constitutional
protections. 2
How have courts interpreted the
right to not be held without an indict-ment?;The;language;of;the;amendment
seems clear. It seems to say that you
cannot be held “unless on a presentment or indictment of a Grand Jury.”
Sadly,;it’s;not;so;simple.
The question is one of grave and serious import, affecting both private
and;public;rights;and;interests;of;great
magnitude, and involves a consideration of what additional restrictions
upon;the;legislative;policy;of;the;States
has been imposed by the Fourteenth
Amendment to the Constitution of the
United States. 3
An indictment before a grand jury
is;an;interesting;process.;First,;the;de-fendant;does;not;have;the;right;to;par-ticipate in the process; he can testify,
but that usually works to his detriment.
The;State’s;agents;(police,;deputies,;FBI
or DEA agents, or whatever agency is
involved) present evidence and wit-
nesses;to;the;prosecutorial;authority,;be
it;the;State’s;Attorney;General,;County
Attorney, District Attorney, or United
States;Attorney,;and;the;prosecutor;pres-
ents the case to the Grand Jury, which is
selected;similarly;to;the;way;a;jury;for;a
criminal;or;civil;trial;is;selected,;except
that;the;defense;doesn’t;have;the;right;to
voir dire;the;panel;to;make;sure;it;is;fair
and unbiased.
The burden for a Grand Jury indictment is much less stringent than it is for
a;criminal;jury;trial;;if;there’s;a;prepon-derance;of;evidence;(something;more
than;50%;in;favor;of;the;State’s;posi-
tion;that;a;crime;was;committed),;the
Grand Jury will indict. As Tom Wolfe
quoted his fictional New York State
Chief Judge Sol Wachtler in The Bonfire of the Vanities,;“A;grand;jury;would
‘indict;a;ham;sandwich,’;if;that’s;what
you wanted.” 4;At;least;a;suspect’s;peers
are;involved;in;the;indictment;process,
which is something the colonists were
often;deprived;of;under;King;George.
Hence, you would think that this right
would be absolute.
Alas,;thanks;to;judicial;interpretation
of these seemingly clear, unambiguous
words,;as;well;as;selective;application;of
the;Fourteenth;Amendment’s;incorpo-ration;doctrine,;it;is;not.;“But;its;design
was;not;to;confine;the;States;to;a;par-ticular mode of procedure in judicial
proceedings, and prohibit them from
prosecuting;for;felonies;by;information
instead of by indictment, if they chose
to;abolish;the;grand;jury;system.” 5 As a
result;of;this;interpretation,;while;the
Fifth Amendment has been incorporated into the Fourteenth Amendment
and;should;therefore;be;fully;applied;to
State;crimes;prosecuted;in;State;courts,
the;United;States;Supreme;Court;ruled
that;States,;even;post-ratification;of;the
Fourteenth Amendment, can forgo the
Grand;Jury;process;and;permit;charg-ing of criminal cases via “
information.” 6;What;does;this;mean?;Instead;of
having;to;present;a;case;to;the;Grand
Jury and thereby run the risk that the
suspect’s peers or judge will view the
case;differently;than;a;biased;prosecu-tor,;the;prosecutorial;authority;merely
has;to;file;a;detailed;“Complaint;&;In-formation” with a supporting affidavit that tells the judge what evidence
would;have;been;presented;to;a;Grand
Jury. 7;The;due;process;happens;after;the
defendant;is;booked;and;processed;and
possibly;held;in;jail;or;forced;to;pay;lots
of;money;to;bond;out.;Such;due;pro-cess;involves;a;preliminary;hearing;in
which;the;prosecutor;presents;the;bar-est;of;supporting;evidence;to;a;judge,
who decides whether the case should
proceed;to;jury;trial,;which;is;basically
the same standard a Grand Jury would
use when choosing whether to indict a
defendant.
“To implement the Fourth Amendment’s protection against unfounded
www.TheHomeschoolMagazine.com
For civil cases, the
plaintiff;need;only
prove;the;elements
by;a;preponderance
of the evidence, more
than;50%;likely;that;the
defendant;did;it!
