Hurtado v. California, 110 U.S. 516 (1884)

Hurtado was the first major U.S. Supreme Court case in which a right protected in the U.S. Constitution was not extended to the states. The right in question was the right to indictment by a grand jury, on appeal from the Supreme Court of California. The basis was laid in the Slaughterhouse Cases (1873), when the Supreme Court reached a decision by selecting one narrow right among many, without finding that the intent of the Fourteenth Amendment had been to extend such protection to all such rights. This gave practical effect to the incorporation doctrine, which holds that the Fourteenth Amendment does not extend all rights to the states.

The decision reflects the advent in the latter nineteenth century of the position of public prosecutor, often called a district attorney, as a full-time official. When the United States was founded, criminal prosecutions were conducted by private lawyers or even by nonlawyers, sometimes compensated from a public fund, but more often pro bono or compensated by victims of a crime or by public subscription. Elected public prosecutors developed a preference for filing an ‘‘information’’ as an alternative to seeking an indictment from a grand jury. This saves time and money, but risks the prosecution of persons who are innocent, especially by elected prosecutors with ambitions for higher office, who may be careless about making sure that they have the right person.

Most states still use grand juries, many having the right in their state constitutions. California still uses grand juries; at present they are seldom used for indictments but rather to investigate the operations of government, a function that the grand juries of other states lack the time to address.

JON ROLAND

References and Further Reading

• Hurtado v. California, 110 U.S. 516 (1884). Opinion by Justice Matthews (https://www.constitution.org/ussc/110-516a.htm), dissent by Justice Harlan (https://www.constitution.org/ussc/110-516b.htm).
• Roland, Jon. ‘‘Intent of the Fourteenth Amendment Was to Protect All Rights.’’ Constitution Society, September 2000. https://www.constitution.org/col/intent_14th.htm.
• Tooke, John Horne. Address on Libels, Case of John Horne, 1777. Constitution Society. https://www.constitution.org/jury/cmt/took1777/tooke1777.htm. (Criticism of indictment by information, rather than by grand jury. May have contributed to requirement for grand juries in U.S. Bill of Rights.)

Cases and Statutes Cited

• Slaughterhouse Cases, 83 U.S. 36 (1873)

See also Grand Jury