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.