CHALLENGE - This word has several
significations. 1. It is an exception or objection
to a juror. 2. A call by one person upon another to
a single combat, which is said to be a challenge to
fight.
Criminal Law. A request by one person to another,
to fight a duel.
It is a high offence at common law and indictable,
as tending to a breach of the peace. It may be in
writing or verbally. He who carries a challenge is
also punishable by indictment. In most of the states,
this barbarous practice is punishable by special laws.
In most of the civilized nations challenging another
to fight is a crime, as calculated to destroy the
public peace; and those who partake in the offence
are generally liable to punishment. In Spain it is
punished by loss of offices, rents, and honors received
from the king, and the delinquent is incapable to
hold them in future.
Practice. An exception made to jurors who are to
pass on a trial; to a judge; or to a sheriff.
It will be proper here to consider, 1. the several
kinds of challenges; 2. by whom they are to be made;
3. the time and manner of making them.
The several kinds of challenges may be divided into
those which are peremptory and those which are for
cause. 1. Peremptory challenges are those which are
made without assigning any reason, and which the court
must allow. The number of these which the prisoner
was allowed at common law in all cases of felony,
was thirty-five, or one under three full juries. This
is regulated by the local statutes of the different
states and the number, except in capital cases, has
been probably reduced.
Challenges for cause are to the array or to the polls.
1. A challenge to the array is made on account of
some defect in making the return to the venire, and
is at once an objection to all the jurors in the panel.
It is either a principal challenge, that is, one founded
on some manifest partiality, or error committed in
selecting, depositing, drawing or summoning the jurors,
by not pursuing the directions of the acts of the
legislature; or a challenge for favor.
A challenge to the polls is objection made separately
to each juror as he is about to be sworn. Challenges
to the polls, like those to the array, are either
principal or to the favor.
First, principal challenges may be made on various
grounds: 1st. propter defectum, on account of some
personal objection, as alienage, infancy, old age,
or the want of those qualifications required by legislative
enactment.
2d. Propter affectum, because of some presumed or
actual partiality in the juryman who is made the subject
of the objection; on this ground a juror may be objected
to if he is related to either within the ninth degree,
or is so connected by affinity; this is supposed to
bias the juror's mind, and is only a presumption of
partiality. A juror who has conscientious scruples
in finding a verdict in a capital case may be challenged.
Much stronger is the reason for this challenge where
the juryman has expressed his wishes as to the result
of the trial, or his opinion of the guilt or innocence
of the defendant. And the smallest degree of interest
in the matter to be tried is a decisive objection
against a juror. The third ground of principal challenge
to the polls is propter delictum, or the legal incompetency
of the juror on the ground of infamy. The court, when
satisfied from their own examination, decide as to
the principal challenges to the polls without any
further investigation and there is no occasion for
the appointment of triers.
- Secondly. Challenges to the poll for favor may
be made when, although the juror is not so evidently
partial that his supposed bias will be sufficient
to authorize a principal challenge, yet there are
reasonable grounds to suspect that he will act under
some undue influence or prejudice. The causes for
such challenge are manifestly very numerous and depend
on a variety of circumstances. The fact to be ascertained
is whether the juryman is altogether indifferent as
he stands unsworn because, even unconsciously to himself,
be may be swayed to one side. The line which separates
the causes for principal challenges and for challenge
to the favor is not very distinctly marked. That the
juror has acted as godfather to the child of the prosecutor
or defendant is cause for a principal cballenge while
the fact that the party and the juryman are fellow
servants, and that the latter has been entertained
at the house of the former, is only cause for challenge
to the favor. Challenges to the favor are not decided
upon by the court, but are settled by triers.
- 2. The challenges may be made by the government
or those who represent it, or by the defendant in
criminal cases; or they may be made by either party
in civil cases.
- 3. As to the time of making the challenge, it is
to be observed that it is a general rule that no challenge
can be made either to the array or to the polls until
a full jury have made their appearance, because if
that should be the case, the issue will remain pro
defectu juratorum; and on this account the party who
intends to challenge the array, may, under such a
contingency, pray a tales to complete the number and
then object to the panel. The proper time of challenging
is between the appearance and the swearing of the
jurors. The order of making challenges is to the array
first, and should not that be supported, then to the
polls; challenging any one juror waives the right
of challenging the array. The proper manner of making
the challenge is to state all the objections against
the jurors at one time; and the party will not be
allowed to make a second objection to the same juror,
when the first has been over-ruled. But when a juror
has been challenged on one side and found indifferent,
he may still be challenged on the other. When the
juror has been challenged for cause and been pronounced
impartial, he may still be challenged peremptorily.
As to the mode of making the challenge, the rule
is that a challenge to the array must be in writing;
but when it is only to a single individual, the words
'I challenge him' are sufficient in a civil case,
or on the part of the defendant in a criminal case.
When the challenge is made for the prosecution, the
attorney-general says, 'We challenge him.'
Interest forms the only ground at common law for
challenging a judge. It is no ground of challenge
that he has given an opinion in the case before. By
statute, there are in some states several other grounds
of challenge.
The sheriff may be challenged for favor as well as
affinity. And the challenge need not be made to the
court, but only to the prothonotary. Yet the Sheriff
cannot be passed by in the direction of process without
cause, as he is the proper officer to execute writs,
except in case of partiality. Yet if process be directed
to the coroner without cause, it is not void. He cannot
dispute the authority of the court, but must execute
it at his peril, and the misdirection is aided by
thc statutes of amendment.
