itual course of misconduct in sex matters and lack
of power to control impulses, and likelihood of attack on others, were
viewed as calling for evidence of past conduct pointing to probable
consequences and as being as susceptible of proof as many of the
criteria constantly applied in criminal prosecutions.[811]

Abolition of the Grand Jury

An indictment or presentment by a grand jury, as known to the common law
of England, is not essential to due process of law even when applied to
prosecutions for felonies. Substitution for a presentment or indictment
by a grand jury of the proceeding by information, after examination and
commitment by a magistrate, certifying to the probable guilt of the
defendant, with the right on his part to the aid of counsel, and to the
cross-examination of the witnesses produced for the prosecution is due
process of law.[812] Furthermore, due process does not require that the
information filed by the prosecuting attorney should have been preceded
by the arrest or preliminary examination of the accused.[813] Even when
an information is filed pending an investigation by the coroner, due
process has not been violated.[814] But when the grand jury is retained
it must be fairly constituted. Thus, in the leading case, an indictment
by a grand jury in a county of Alabama in which no member of a
considerable Negro population had ever been called for jury service, was
held void, although the Alabama statute governing the matter did not
discriminate between the two races.[815]

The Right to Counsel

Whatever previously may have been recognized as constituting the
elements of procedural due process in criminal cases, it was not until
1932[816] that the Supreme Court acknowledged that the right "to have
the assistance of counsel for * * * [one's] defense," guaranteed as
against the National Government by the Sixth Amendment, was of such
fundamental character as to be embodied in the concept of due process of
law as set forth in the Fourteenth Amendment. Later in 1937, it effected
this incorporation by way of expansion of the term, "liberty," rather
than, "due process," and conceded that the right to counsel was
"implicit in the concept of ordered liberty."[817]

For want of adequate enjoyment of the right to counsel, the Court, in
Powell _v._ Alabama,[818] overturned the conviction of Negroes who had
received sentences of death for rape, and asserted that, at least in
capital cases, where the def