Grand Jury Exception

                The topic of discussion for this Constitution Monday comes from the Fifth Amendment to the U.S. Constitution:  “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….”  This provision states that the military personnel of American armed services have the right to be tried in a civilian criminal court unless the crime was related to their duty in the military or war.

                W. Cleon Skousen explained why military personal might want to be tried in a civilian court:  “Because a court-martial does not provide the protection of a jury, this provision was considered extremely important to treat members of the military like any other citizen unless a crime was connected with military duties.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 704.)

                David F. Forte at The Heritage Foundation further explained the Grand Jury Exception:  “Since the time of the drafting of the Fifth Amendment, there has been a debate over which constitutional protections are applicable to courts-martial.  The text of the amendment exempts only the requirement of a grand-jury indictment.  Though it was universally understood at the time of the Founding that jury trials did not apply to courts-martial, there is no such textual exception in the Sixth Amendment.  An earlier draft presented to Congress did specifically exclude military trials from the jury guarantee, but that version was rejected.  Perhaps the Framers believed that the exemption to jury trials was so universally recognized, it would have been redundant to have specified it….

                “It seems clear enough that the Framers intended Congress to have plenary authority to define the rules regulating the armed forces (Article I, Section 8, Clause 14) at least in relation to the executive, and perhaps to the judiciary as well.

                “Subsequent to the ratification of the Fifth Amendment, the courts left it to Congress to define offenses against the military and the manner of their being adjudicated.  Judicial review of decisions of military tribunals was very limited….” (See The Heritage Guide to the Constitution, p.331.)