Hurtado v. California, 110 U.S. 516; 4 S. Ct. 111; 28 L. Ed. 232 (1884)

Facts—The plaintiff was charged by the district attorney with murder, by means of an information, in a California county court. The plaintiff was tried, the jury rendered a verdict of murder in the first degree, and the court sentenced him to death. The supreme court of California upheld the judgment. The plaintiff contended that under the due process clause of the Fourteenth Amendment he was entitled to a proper indictment by a grand jury before trial.

Question—In felony cases is an indictment by a grand jury a necessary part of “due process of law” guaranteed by the Fourteenth Amendment?

Decision—No.

Reasons—J. Matthews (7–1). The use of indictment by a grand jury was merely one process of the common law handed down to us from the courts of England. It is not a necessary part of the law but merely the way the law has been used. To hold that such a characteristic is essential to due process of law would be to render it incapable of progress or improvement. The information “is merely a preliminary proceeding, and can result in no final judgment, except as a consequence of a regular judicial trial, conducted precisely as in cases of indictments.” Therefore the Court reasoned that mere usage of the law at the time the due process clause was added to the Constitution does not imply that that usage is the only means of due process of law.

New procedure does not deny due process. Due process of law must mean more than the actual existing law of the land. “It follows that any legal proceedings 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.”

In dissent, J. Harlan, the first justice to advocate “total incorporation” of the provisions of the Bill of Rights into the Fourteenth Amendment, argued that the right of due process included ancient rights and that the right to a grand jury was among them.

Note—The grand jury provision remains one of the few provisions of the Bill of Rights that has not been incorporated into the Fourteenth Amendment and applied to the states. The grand jury is not widely used in the states although, of course, it is used in the federal courts.