110 U.S. 516 (1884)
One-Sentence Takeaway: States may prosecute criminal defendants without a grand jury indictment without violating the Fourteenth Amendment’s Due Process Clause.
Summary: Defendant was charged and convicted of 1st degree murder. Defendant was charged by information, not grand jury indictment. Defendant argued that due process clause of the Fourteenth Amendment required indictment by a grand jury for a serious crime in state court (much like the process in federal court as guaranteed by the Fifth Amendment).
- Historical argument (i.e. that the Magna Carta would’ve guaranteed a grand jury) is rejected by the majority because the system or process will change and be molded into new forms.
- Textual argument: That Fourteenth Amendment is meant to mean the same thing as the Fifth Amendment.
- Majority: No because Fifth Amendment says, “grand jury indictment…due process of law,” and Fourteenth Amendment says, “No state shall deprive any person of due process of law.
- Cannot read Fifth Amendment’s Due Process clause into the Fourteenth Amendment because doing so would render the other words superfluous.
- Thus, Fifth and Fourteenth Amendments are not exactly the same thing.
- A grand jury indictment is not inherently included in the notion of “due process” set forth in the Fourteenth Amendment
- Majority: Fundamental fairness (i.e. due process ≠ Bill of Rights, due process is its own concept)
- Justice Harlan, Dissent: Due process incorporates ALL of the bill of rights. Fourteenth Amendment’s Due Process Clause is meant to take in all 10 amendments into its concept of DPC.
REFERENCE DESK
Haffke v. California, 325 F. Supp. 544 (C.D. Cal. 1971):
In Hurtado the Supreme Court of the United States held that California’s initiating criminal prosecutions by information instead of indictment by a grand jury does not deprive an accused of due process of law:
“[W]e are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an offence of less grade than a felony, except misprision of treason; and in every circumstance of its administration, as authorized by the statute of California, it carefully considers and guards the substantial interest of the prisoner.” 110 U.S. at 538, 4 S.Ct. at 122.
The Hurtado opinion was not written in the abstract. It followed upon a careful consideration by the court of the English constitutional experience, the adoption of the United States Constitution including the Fourteenth Amendment thereto, and the wisdom of adapting criminal procedures to changing times. The court noted that strict reliance on established forms does not always yield a desirable result and that:
“It is more consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circumstances * * *. This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law. * * *” Hurtado v. California, supra at 530, 4 S.Ct. at 118.
The court noted that there was nothing in the American constitutional experience to prohibit that flexibility in general, or to forbid using an information instead of an indictment in specific. The provisions of the Bill of Rights “must be held to guaranty not particular forms of procedure, but the very substance of individual rights to life, liberty, and property.” Id. at 532, 4 S.Ct. at 119.
“[A]ny legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.” Id. at 537, 4 S.Ct. at 121.
The court held, accordingly, that due process was not offended by California’s proceeding by mode of information in criminal proceedings. They specifically held that since the Fourteenth Amendment did not explicitly require the perpetuation of the institution of the grand jury in state prosecutions, as the Fifth Amendment did with respect to those of the federal government, it did not restrain the action of the states in that regard. Id. at 535, 4 S.Ct. 111.
The holding of Hurtado—that California’s prosecution of a capital offense by information instead of indictment is not violative of due process—was immediately reaffirmed in McNulty v. California, 549*549 149 U.S. 645, 648, 13 S.Ct. 959, 37 L.Ed. 882 (1893), and Vincent v. California, 149 U.S. 648, 13 S.Ct. 960, 37 L. Ed. 884 (1893). The Supreme Court has also upheld the right of other states as well to initiate criminal proceedings by information instead of indictment. Gaines v. State of Washington, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793 (1928); Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913); Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912); Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249 (1900) (Idaho); Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597 (1900) (Utah); Bolln v. Nebraska, 176 U.S. 83, 20 S.Ct. 287, 44 L.Ed. 382 (1900); Hodgson v. Vermont, 168 U.S. 262, 18 S.Ct. 80, 42 L.Ed. 461 (1897).
Although Hurtado does contain some “sweeping language” regarding the proper construction of the due process clauses of the Fifth and Fourteenth Amendments which has been rejected in a number of cases since 1884, e. g., see Powell v. Alabama, 287 U.S. 45, 65-67, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the holding of Hurtado remains secure behind a solid wall of authority.
People v. Henson, 13 Cal.5th 574 (2022):
It has long been held that the Fifth Amendment’s guarantee of indictment by grand jury does not apply to the states. (See Hurtado v. People of State of Cal. (1884) 110 U.S. 516 (Hurtado).) In Hurtado, the high court reasoned that so long as a state provides, in advance of instituting a felony prosecution, some threshold procedure that comports with “fundamental principles of liberty and justice,” the Fourteenth Amendment’s due process guarantee is satisfied. But the threshold procedure, whatever it might be, must be adequate to secure the individual from the arbitrary exercise of the powers of government. The Hurtado court then discussed the magistrate proceeding that, under California law, precedes the filing of an information. Upholding California’s practice, the Hurtado court declared: “[W]e are unable to say that . . . proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.”
What Hurtado makes clear is that (1) the filing of a felony complaint with a magistrate, (2) the magistrate’s preliminary examination of the case, and (3) the magistrate’s commitment order, while being in some sense the initiation of a criminal case, are components of a threshold proceeding that precedes the formal trial court prosecution of the defendant and that ensures that the district attorney or other prosecutorial authority does not abuse his or her power. For this reason, the felony complaint that initiates this threshold proceeding does not need to be “subscribed” (i.e., signed) by the district attorney, and the proceeding does not invoke the jurisdiction of any court.
Significantly, the threshold nature of this proceeding is not just a matter of legal doctrine. From the accused’s point of view, the proceeding before a magistrate does not carry with it the same significance as a trial court prosecution, in that the filing of a felony complaint, unlike indictment or accusation by information, does not threaten oppressive pretrial incarceration. The time constraints within which the preliminary hearing must be conducted or the complaint dismissed and the defendant released ensure that the defendant is not subjected to extended anxiety or public opprobrium, and by giving the defendant immediate notice of the charge and opportunity to defend avoid prejudice to the defense.