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 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.