Kaley v. United States: Sanctifying Grand Jury Determinations and Marginalizing the Right to Counsel of Choice

Laura Merkey

In Kaley v. United States, the United States Supreme Court considered whether the Due Process Clause of the Fifth Amendment or the Sixth Amendment right to assistance of counsel entitles defendants to a pretrial hearing to challenge a grand jury's determination of probable cause supporting the charges against them. A grand jury indictment establishes that there is probable cause to believe that an individual has committed a crime, and in some cases, can permit an individual's assets to be seized. The seizure of assets can leave the individual without sufficient funds to retain the legal counsel of his or her choice.

The Court concluded that the Constitution does not give the defendants a right to a pretrial hearing to relitigate the grand jury's finding of probable cause. Although the Kaley Court came to the correct holding, the Court erred in concluding that the issue hinged on the finality of the grand jury's determination. For the purposes of clarity and finality, the Court should have instead focused on the absence of such a hearing consequently limiting the defendant's right to counsel of choice, which precedent has shown to be a right separate and distinct from the right to effective counsel. As the right to counsel of choice is qualified, the infringement of the right caused by a denial of a pretrial hearing to contest probable cause is insufficient to generate a constitutional violation.