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James Madison in his speech to Congress in regards to what eventually would become the 5th amendment talked about 'infamous' crimes and how they should be handled. As far as I know he did not define what an infamous crime exactly is.

So, how exactly was term defined when the specific definition was required?

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Under current law, an "infamous" crime, for the purposes of the Fifth Amendment, is one which carries a sentence of imprisonment for more than one year, or death. In other words, "infamous crime" is now a synonym for "felony".

For context, the Fifth Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury [...]

So the definition of "infamous" would control which crimes must be prosecuted by an indictment from a grand jury.

The Federal Rules of Criminal Procedure, Rule 7 describes which crimes must be prosecuted by indictment, and its accompanying notes link this to the "infamous" criterion:

(a) (1) Felony. An offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable: (A) by death; or (B) by imprisonment for more than one year.

[...]

Note to Subdivision (a). 1. This rule gives effect to the following provision of the Fifth Amendment to the Constitution of the United States: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *”. An infamous crime has been defined as a crime punishable by death or by imprisonment in a penitentiary or at hard labor, Ex parte Wilson, 114 U.S. 417, 427; United States v. Moreland, 258 U.S. 433. Any sentence of imprisonment for a term of over one year may be served in a penitentiary, if so directed by the Attorney General, 18 U.S.C. 753f [now 4082, 4083] (Commitment of persons by any court of the United States and the juvenile court of the District of Columbia; place of confinement; transfers). Consequently any offense punishable by imprisonment for a term of over one year is an infamous crime.

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  • What does he mean by indictment? I have not heard that word before. – Neil Meyer Feb 24 '20 at 11:44
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    @NeilMeyer: Briefly, it's a formal statement of charges of a crime issued by a grand jury. In cases requiring indictment, this has to happen before the accused person can be put on trial. You hear the term pretty often in the news (also in its verb form, "indict"/"indicted"). Lesser crimes don't require this process, and a prosecutor can issue the charges directly in a document called an "information". – Nate Eldredge Feb 24 '20 at 13:27

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