Challenges and the Powers of Judges
85
is of little benefit in ascertaining the
counsel for defense, apparently actuated
crucial fact whether or not the mind of the juror is open to the truth, or whether
by two motives, first, the chance of getting a talesman favorable to the
his mind is in such condition of prejudice
defendant, and second, for the purpose
against the accused that he cannot dis
of complying with the rule that before complaint can be made of error in the
passionately consider the facts. The fault has not been with the statutes of Nebraska. They are liberal enough in this respect. Perhaps it is open to
doubt whether the earlier decisions in this state gave enough weight to the
conclusions of the trial judge in passing
retention of a juror challenged for cause, the peremptory challenges must
first be exhausted. Originally at trials of commoners the King's right of per emptory challenge was unlimited. To balance this the accused was afterward,
in treason and felony cases, allowed
upon the qualifications of a proposed juror, but in the cases of Ward v. State, 58 Neb. 719, and jahnke v. State, 68 Neb. 154, a reasonable and practical doctrine was announced. More regard has in later years been paid to the immense advantage that the observa tion of the juror during the examination gives the trial judge. Often it is not the spoken word but the whole de meanor that reveals prejudice or shows the lack of it, and this a reviewing court cannot see. If a judge is strong
(but may challenge as the names are called over, and is not bound to show
enough to hold his head in times of public
the cause of challenge until the panel is
thirty-five, then twenty challenges, then it was changed again to thirty-five.
But nobles were allowed no peremptory challenges. They were tried by their peers who each gave judgment as to the fact.1 At present, in England, a defendant in a felony case is allowed twenty peremptory challenges, in mis
demeanor none' is allowed him. The Crown has no peremptory challenges
clamor, justice will seldom miscarry,
gone through).
either on the side of the accused or
lenges has always been held subject
state, on account of the retention of a juror whom he believes to be dis
to change as Parliament saw fit to meet the need of the times. I know no sound reason either in law or morals
interested and honest, even though the
The number of chal
"Peremptory Challenges. In my judg ment the state and society in general
why the limitation of the state's per emptory challenge to three jurors and the defendant's to six would not as amply preserve the rights of the accused as the present disparity of giving the
are severely handicapped as the law now stands regarding peremptory chal lenges in criminal cases. As a general
accused six, eight or sixteen peremptory challenges to the state's three or six. But if the powers of the judge were
rule better qualified jurors are to be
increased there might be no necessity
found among the men selected by the county board and serving upon the regular panel than among talesmen
for such a change.
called to fill the panel. I have often seen a jury panel made up of citizens
present method of trial by jury is the unreasonable limitation placed upon the powers of the judge. By some
juror is frank enough to say he has formed an opinion from newspapers or from rumor.
of good standing peremptorily chal
lenged out of the jury box by astute
"Powers of judge in jury Trials. Perhaps the greatest defect in the
‘Coke, Littleton, 166 b.
