In the case of Midland Asphalt Corp. v. United States in 1988, the U.S Supreme Court ruled that a defendant cannot immediately appeal an indictment on grounds that it was returned by a grand jury which had been improperly instructed about the law by prosecutors. The court held that such appeals must wait until after trial because they do not fall under the category of rights whose protection would be lost if not vindicated before trial as per Criminal Appeals Act’s “collateral order” exception to final judgment rule. This decision upheld Midland Asphalt Corporation's conviction for bid-rigging despite their claim that improper instructions were given to grand jury regarding what constituted illegal behavior under Sherman Antitrust Act.

In the dissenting opinion for Midland Asphalt Corp. v. United States, Justice Brennan argued that a defendant should be able to challenge an indictment before trial if it is based on evidence obtained in violation of the Fourth Amendment. He disagreed with the majority's interpretation of Costello v. United States and its reliance on historical practice, asserting that these did not preclude pretrial challenges to indictments based on illegal evidence gathering methods. Brennan also contended that allowing such challenges would not significantly disrupt grand jury proceedings or undermine their function as they are already subject to numerous exceptions and limitations under existing law.