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Fifth Amendment protections against self-incrimination

A previous blog post discussed Double Jeopardy clause of the Fifth Amendment, which applies to defendants in criminal proceedings. It protects innocent persons from successive prosecutions and cumulative punishments for the same crime. There are other Fifth Amendment protections for those facing the possibility of criminal conviction, such as the right to a grand jury.

The right to a grand jury is extended to suspects facing a criminal charge. Grand juries, typically consisting of 23 people, will assist the prosecutor in deciding whether to bring formal criminal charges against the suspect. Grand jury proceedings are not open to the public and the grand jury members may convene for one month up to a year.

The prosecutor will explain the law to the jurors and present the case in an attempt to establish probably cause that the crime was committed. The jurors may view all available evidence and may also request further evidence, such as witness testimony or subpoenaed documents. The grand jury acts as a check on the government's power in that they will decide whether a criminal charge should be brought against the suspect. If so, the prosecutor will bring an indictment against the suspect who will then face criminal charges.

All states have provisions allowing for grand juries, however some courts instead use preliminary hearings to determine whether there is adequate evidence to indict a criminal suspect. The main differences between a preliminary hearing and a grand jury are that preliminary hearings are open to the public and involve lawyers and a judge, whereas grand juries convene in private and involve only the prosecutor. Preliminary hearings and grand juries both serve a different purpose than criminal defense jury trials, which will be discussed in a future post.

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