A challenge to a venire, also known as a challenge to the array, is used to question the selection or drawing of prospective jurors and, unless otherwise ordered by the court, must be made in writing and decided before any individual prospective juror is examined.
1934) (challenge to the array goes to illegalities in selecting names of persons for jury service or in drawing or empaneling jury--to some matter by which prospective juror pool was formed).
(2) A challenge to the array involved a party objecting to the composition of the panel of potential jurors from which the trial jury would be selected.
Challenges to the array were of two kinds: they were either a "principal" challenge or a challenge to the "favour." A principal challenge, if proven, led to a manifest presumption of partiality and to a successful challenge to the array. The presiding judge weighed the validity of principal challenges.
(25) These triers heard the evidence and, if they determined the cause sufficient, could allow the challenge to the array, thus requiring the formation of a new panel.
Despite the elusive answers given by the Crown attorneys and the Sheriff, the evidence that Crown solicitors had received a copy of the array on Friday, and the indications that the Crown helped determine the final composition of the panel, the triers found against the challenge to the array. The jury subsequently convicted Kirwan.
Chief Justice Abbott emphasized that the defendant had not found any cases supporting a challenge to the array "on the supposed ground of unindifferency in the officer of the Court by whom a jury had been nominated for any trial." (46) He explained the common practice of the courts when one of the parties was concerned about the sheriff's partiality.
The defendants grounded their appeal to the House of Lords on several claims, including the failure of the Irish court to substantiate their challenge to the array. Because of the politicized nature of the case, only the five law lords considered the appeal.
also employed an efficiency argument, contemplating the effect of sustaining this challenge to the array on the ground that fifty-nine names had been omitted from the jurors' book.
Lord Brougham agreed with the Lord Chancellor, saying that "there is no ground of authority or decision or enactment to show us that the mere omission can validly or competently be made a ground of challenge to the array." (62)
He believed that the array challenge was important "to a degree which does not adroit of exaggeration, to the administration of justice throughout the United Kingdom." If the House of Lords did not insist on granting a remedy for the Irish court's failure to validate the challenge to the array, then trial by jury, he declared, "instead of being a security to persons who are accused," would be "a delusion, a mockery, and a snare." (63) Lord Denman believed that the challenge should have been successful given that the Attorney-General admitted the intentional omission of names from the jurors' book.
It is not necessary to examine each of these cases in detail, but a discussion of two of them offers a taste of the difficulties of demonstrating a challenge to the array in a politically-charged trial.