I had a great question from a client who asked: “How was I charged with a felony without a grand jury indictment? The constitution states, ‘anything repugnant to the CONSTITUTION is null and void.’ In my last case I was also charged with a complaint, not an indictment, so both cases should be thrown out. Right?”

Here was my answer:

Dear xxxx,

I hear your frustration, and I understand why it feels like the system is ignoring the Constitution. It is a common and very reasonable question: if the Bill of Rights mentions a Grand Jury, why aren’t you seeing one?

In Missouri, there are two legal “paths” the State can take to bring a felony charge to trial. Neither is “more” constitutional than the other; they are simply different ways of ensuring due process.

1. The Grand Jury Indictment

This is the path mentioned in the Fifth Amendment of the U.S. Constitution. A group of citizens (the Grand Jury) hears evidence in secret and decides if there is enough to charge someone.

2. The Complaint and Preliminary Hearing

This is the path currently being used in your case. Instead of a secret Grand Jury, the prosecutor files a Complaint. This leads to a Preliminary Hearing, which is often actually more protective of your rights because:

• It is public: Unlike a secret Grand Jury, the defendant and his/her attorney are present.
• We can fight back: I have the right to cross-examine the State’s witnesses and see their evidence in open court before the case even moves forward.

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The Legal Authority

To answer your question about how this is allowed under the Constitution, here are the specific legal citations:

The U.S. Constitution

While the Fifth Amendment requires a Grand Jury for federal felonies, the U.S. Supreme Court ruled in Hurtado v. California, 110 U.S. 516 (1884) [opens as a pdf]) that the “Due Process” clause of the 14th Amendment does not require states to use grand juries. States are free to use a Preliminary Hearing instead, as long as it is fair.

The Missouri Constitution

Our state constitution explicitly allows for both methods. Article I, Section 17 of the Missouri Constitution states:

“No person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies…”

In Missouri, a “Complaint” followed by a Preliminary Hearing leads to what is called an “Information.” Under Missouri law, an Information (signed by a prosecutor after a judge finds probable cause) has the same legal power as an Indictment (signed by a Grand Jury).

I hear you that you feel that system is stacked against you; but when the State chooses to go the “Complaint” route, a defendant actually gets a chance to see their cards early and challenge their witnesses in front of a judge. I am committed to making sure every ounce of due process you are owed is protected.

Let’s discuss this further when we next meet.

Respectfully, Grant R. Doty