prev | next
Amdt5.2.3 Military Exception to Grand Jury Clause

Fifth Amendment:

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 offence 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.

The Grand Jury Clause contains an exception for persons serving in the armed forces. All persons in the regular armed forces are subject to court martial rather than grand jury indictment or trial by jury.1 The Supreme Court has held that the exception’s limiting words— “when in actual service in time of War or public danger” —apply only to members of the militia, not to members of the regular armed forces.2 Thus, members of the regular armed forces can be tried by court martial even when the alleged offenses are not connected to their service in the armed forces.3

Johnson v. Sayre, 158 U.S. 109, 114 (1895). See also Lee v. Madigan, 358 U.S. 228, 232–35, 241 (1959). back
Sayre, 158 U.S. at 114. back
Solorio v. United States, 483 U.S. 435 (1987). The Solorio Court overruled O’Callahan v. Parker, 395 U.S. 258 (1969) in which the Court had held that offenses that are not “service connected” may not be punished under military law, but instead must be tried in the civil courts. Chief Justice William Rehnquist’s opinion in Solorio for the Court was joined by Justices Byron White, Lewis Powell, Sandra Day O’Connor, and Antonin Scalia. Justice John Paul Stevens concurred in the judgment but thought it unnecessary to reexamine O’Callahan. Dissenting Justice Thurgood Marshall, joined by Justices William Brennan and Harry Blackmun, thought the service connection rule justified by the language of the Fifth Amendment’s exception, based on the nature of cases (those “arising in the land or naval forces” ) rather than the status of defendants. Offenses against the laws of war, whether committed by citizens or by alien enemy belligerents, may be tried by a military commission. Ex parte Quirin, 317 U.S. 1, 44 (1942). back