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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; nor shall any person be

subject for the same offense to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for public use,

without just compensation. ?

[edit] Grand jury

Grand juries, which return indictments in many criminal cases, are

composed by a jury of peers and operate in closed deliberation

proceedings; they are given specific instructions regarding the law by

the judge. Many constitutional restrictions do not apply during grand

jury proceedings. The "exclusionary rule," which prevents evidence

seized in violation of the Fourth Amendment from being introduced in

court, does not apply to evidence presented to a grand jury. Witnesses

do not have the right to have their attorneys present in grand jury

rooms during hearings; they would normally have such a right when being

investigated by the police. The grand jury indictment clause of the

Fifth Amendment has not been incorporated under the Fourteenth

Amendment; in other words, it has not been ruled applicable to the

states. States are thus free to abolish grand juries, and many (though

not all) have indeed replaced them with preliminary hearings.

Whether or not a crime is "infamous" is determined by the nature of the

punishment that may be imposed (not the punishment that is actually

imposed). (Crimes punishable by capital punishment are explicitly

required to be tried upon indictments.) In United States v. Moreland

(1922), the Supreme Court held that imprisonment in a prison or

penitentiary (as opposed to a correction or reformation house) attaches

infamy to a crime. Currently, federal law permits the trial of

misdemeanors without indictments. In cases involving felonies except

those in which capital punishment may be applied, the prosecution may

proceed without indictments if the defendants waive their Fifth

Amendment right.

Indictments found by grand juries may be amended by the prosecution

only in limited circumstances. In Ex Parte Bain (1887), the Supreme

Court held that the indictment could not be changed at all by the

prosecution. United States v. Miller (1985) partly reversed the

previous ruling; now, an indictment's scope may be narrowed by the

prosecution. Thus, lesser included charges may be dropped, but new

charges may not be added.

The Fifth Amendment's grand jury clause does not protect those serving

in the Armed Forces, whether during wartime or peacetime. Members of

the state militia called up to serve with federal forces are not

protected by the clause either. In O'Callahan v. Parker (1969), the

Supreme Court held that only service-related charges may be brought

against members of the militia without indictments. That decision was


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