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Ch. 25

most certain to appear in the County before the Return Day of the Writ in the Superior Court in question, the Sheriff, by virtue of the Statute, Summoned the Jurors to Appear in the Court of the Judges of Assize, and there the Trial was carried on during the Va­cation of the Upper Court. This Statute was commonly known and designated as the Stat­ute of Nisi Prius (1285), and, in consequence, the same name was given to the Trial con­ducted in pursuance of its authority before the Justices of Assize.°

The practice under the Statute of Nisi Pri­us (1285) developed an inconvenience. It arose out of the fact that the Sheriff made no Return of the Jury to the Superior Court. Thus, the parties to the action remained in ignorance as to the Names of the Jurors un­til they were actually called at the Trial. The Counsel of the Parties, therefore, found themselves unprepared to make Challenges or take Exceptions. This difficulty was cor­rected by the Statute of 42 Edw. III, c. 11, 2 Statutes at Large 183, enacted in 1368. Under this Statute, the Method of Trial at Nisi Prius was changed. It was provided that no Inquest, except of Assize and Gaol Delivery, should be taken by Writ of Nisi Prius until after the Sheriff had made a Re­turn of the Names of the Jurors to the Su­perior Court.
Selection of the Jury—Summoning, Impanel­Ling and Examining

(I) Summoning the Jury.—When the par­ties have put themselves upon the Country, which is the technical way of referring the issue between them to the Jury, one of the Entries upon the Roll is the Award of the Mode of Decision, which, in the case of Trial by Jury, directs the issuance of a Writ of Venire Patios commanding the Sheriff of the County where the facts stated in the pleading
S. See Martin, Civil Procedure at common Law, e. XIV, Trial, Verdict, Judgment and Execution, Arti­cle I, Trial, § 362, Trials by Jury Ordinary, 307 (St. Paul, 1905).

are alleged to have occurred, to Summon a Jury to try the issue.

(II) impanelling the Jury.—When the Jur­ors appear in Court, the first step and one of the most important in Trial by Jury, is the process of Drawing and Selecting the Jur­ors from what is known as the “Panel.” It is a list of the prospective Jurors sum­moned by the Sheriff to serve on the Juries which may be needed during a Particular Term, or for the Trial of a Particular Action. The Names of these Jurors are written on ballots 10 or tickets and placed in a box, and from the larger number of prospective Jurors in the Panel, names are drawn by lot and called to be sworn as Jurors upon the Jury, unless challenged or excused. If the Orig­inal Panel be exhausted by Challenges or Ex­cuses, a further supply, known as “Tales-men,” ‘~ may be summoned.
(III) Challenges to the Jury.—Tidd says that Challenges are of two kinds, first, to the Array; and second, to the Polls?2
Challenges to the Array took the form of an Exception to the Whole Panel, in which the Jury are Arrayed, or set in order by the Sheriff on his Return. Such objections to the Jury may be based upon some charge of par­tiality, or upon some default in the Sheriff, or his Deputy who Arrayed the Panel. Also, if there be no personal objection against the Sheriff, yet if he Arrays the Panel at the nomination, or under the direction of either
10. By the Balloting Act, 3 Ceo. II, c. 25, § 11, 16 Statutes at Large 167 (1730), the process of select­ing Jurors by baflot was carefully restricted.
11. “The qualification of a Tales man, In point of es­tate, is only five pounds per annum. And, by the 7 & 8 Wm. III, e. 32, § 3 [9 Stafutes at Large 492 (1690)), the Sheriff is directed to return such per­sons, to serve upon the Tales, as shall be returned upon some other Panel, and then attending the Court.” 2 Tidd, The Practice of the Court of ICing’s Bench in Personal Actions, c. XXXVII, Of Trials by the Country, and their Incidents, 784 (Philadelphia, 1807).
12. Id. at 779.

Sec. 296



party, it is good cause of Challenge to the Array.
Challenges to the Polls, in capita, are ex­ceptions to Particular Jurors. Accordthg to Sir Edward Coke, Challenges of this descrip­tion are of four kinds:
First, Propter Honoris Respectum, as if a Lord of Parliament be empanelled on a Jury, in which case he was permitted to chal­lenge himself, or be. challenged by either party.
Second, Pro pter Defectum, as if a Jury-man be an alien born, or a slave or bondsman, or if he is not a resident of the County, or lacks the necessary qualification of estate.
Third, Propter Affecturn, as where a Juror is of kin to either party, within the ninth de­gree; that he has been arbitrator, or declared his opinion on either side; that he has an in­terest in the cause; that there is an action pending between him and the party; that he has accepted money for his Verdict, or even food and drink at either party’s expense; that he has formerly been a Juror in the same cause; or that he is the party’s master, servant, tenant, counsellor, steward, attorney, or of the same society or corporation with him. Besides these, there are Challenges to the Favour, where the party objects only on account of some probable rounds of suspi­cion, as aequathtance, and the like.
Fourth, Propter Delictum, as where a Juror was challenged for a conviction of Trea­son, Felony, Perjury, or Conspiracy; or if, for some Infamous Offence, he has received Judgment of the Pillory, Tumbrel, or the like, or to be branded, whipped or stigma­tized; or if he be outlawed or excommuni­cated, or has been attainted of False Verdict, Praemunire, or Forgery.
(IV) The Examination of the Jurors.— Great latitude is permitted in the examina­tion of Jurors on the Voir Dire, with regard to the various causes of Challenga, in order

that there may be a full and thorough test of their qualifications. The extent of the Exam­ination should fit the importance of the case, being searching and thorough in a momen­tous case, but brief in a minor one, and per­haps addressed to the whole twelve, rather than to the individuals separately. It is ad­vantageous, if possible, to show confidence in the Jury.

The Juror knows best his own condition of mind and may be examined fully, though not to his infamy or disgrace. Examples of the kinds of questions which may be put are as to his membership in secret organizations, un­der oath and obligation to assist fellow mem­bers; whether he has formed a partial opin­ion from rumors he has heard, or from the newspapers (facts not in themselves disquali­fying, though, if taken with others, they might show bias, so further Examination is necessary to make a prima fade case for ex­clusion); whether he has any personal knowledge of the facts of the case, or has formed any opinion about it, which he would favor if the testimony were equally balanced; whether he has an opinion which it would require evidence to remove; whether his at­tention has been called directly or indirectly to any litigation of the same kind in such a way as to influence his Judgment (as if he were a plaintiff himself against an Insurance company); whether he has any prejudice against corporations, as grasping and op­pressive; whether he would take the Law from the Court, and be guided and controlled by its Instructions, or whether he disagrees with some rule involved; whether he has conscientious scruples against the infliction of death penalty; in short, he may be Exam­med generally in regard to his occupation, nationality, religion, social bonds, his sympa­thy and intellect, and evidence may be intro­duced by other witnesses as to his relations or expressions of opinion on the merits of the case. The grounds of objection should be specifically stated, in order to assign Errors



Ch. 25

in Law in ruling on the Challenges upon Mo­tion for a New Trial.’3

The Burden of Proof

It may be said that in general the Burden of Proof will rest on the plaintiff for some specific propositions, but on the defendant for others,’4 depending upon which side has the Affirmative or Negative of the points at issue. This turns on what facts in dispute are essential to the case, or prima fade Cause of Action, and what to the Defence, respec­tively; he who asserts must prove. The plaintiff must make out a prima facie Cause of Action, while the defendant must satisfy the Court of the truth and adequacy of any Defences of New Matter pleaded in Confes­sion and Avoidance. As to these, the plaintiff need only repel the attack and keep them balanced or doubtful, that is, below the re­quired degree of persuasion.

(I) Prima Facie Case.—The first task of the plaintiff at the Trial is to make out a prima facie case by presenting proof of the facts or points essential to his recovery, if these be denied, in order to move the tribunal to decide in his favor. What facts and propo­sitions are sufficient prima fade for a deci­sion in the plaintiff’s favor are, in general, de­termined by the Rules of Substantive Law ap­plicable to the particular case, as to what facts must be proved to make out a good cause of action; and, these in turn may be af­fected by the Rules of Pleading as to the Man­ner and Form required in the Statement of the Cause of Action, which marshal and apportion the respective grounds of Claim and Defence. But the Apportionment is not accomplished by the Pleading alone, but is further determined by the Specific Rules as to the Burden of Proof in various cases. Thus, there is no general test as to what con-
13. Shipman, Hanc]book of Common Law Pleading, c.

1, Outline of I’roecedlngs In an Action, 35 (3rd ed.

by Ballantine, St. Paul, 1023).
14. lii. at 3t

stitutes a prima fade showing, as this de­pends upon a combination of factors, such as the Substantive Law, the Rules of Plead­ing, and the Rules of Evidence, which in turn are affected by a sense of Fair Play and Pub­lic Policy.

Under the irregularity of pleading which characterized the various Common-Law Forms of Action, and under the limited Series of Pleadings under the Codes, which ordi­narily do not extend beyond the Replication Stage of Pleading, the Pleadings do not fully indicate by whom proof must be made or clearly Apportion to Each Party the proposi­tions which are essential to his case, and which fall to him as the case progresses.
Under an ideal System of Pleading, the turns and logical Stages of the Proof Process would be indicated by the Series of Pleadings, viz., the Declaration, Plea, Replication, Re­joinder, Surrejoinder, Rebutter and Surrebut­ter. But, as we have seen in the Chapter on Pleas, Peremptory or in Bar, the General Issue, at Common Law, did not always mean that the defendant’s Defences were Negative; in many instances Affirmative Defences were hidden thereunder; in consequence, the Pleadings sometimes failed to disclose who had the Burden of Proof.
(II) The Burden of RebuttaL—When the plaintiff makes out his prima fade case by reasonable and credible evidence, the Burden of Proof is said to shift to the defendant, but this use of the phrase is very inaccurate and confusing. The plaintiff must at all times keep the proof of his contentions at the re­quired height. This Ultimate Burden of mak­ing out a prima facie case and keeping it good cannot shift; ‘~ but the Burden of going for­
15. Professor James Bradley Thayer was the first to demonstrate clearly the inaccuracy of the expres­sion that the Burden of Proof “shifts,” and to elab­orate on the distinction between the Burden of Proof, in the sense of the “duty to establish,” which never shifts, and what Is awkwardly termed “the duty of going forward with the evidence,” which does have the characteristic referred to as ‘shift­

Sec. 296
ward with the evidence may shift from time to time. Perhaps an illustration would help to make the matter clear.

Suppose A brings Trespass for Assault and Battery against B, who pleads Self Defense, whereupon A Traverses the Plea, thus creat­ing an Issue of Fact as to whether the defend­ant B did strike in Self Defense. At the Trial, as B’s Plea admits the striking, A has, at the outset, a prima facie case; but suppose B goes forward with the evidence by offering suffi­cient Proof of Self Defense, then the Burden of Rebuttal, or the need to go forward with the evidence and repel the Proof of B, shifts to A, who as tile asserter of the cause of ac­tion, or the proponent, must establish a Pre­ponderance of Proof in favor of his cause of action, If he succeeds in this, the Burden of going fonvard with the evidence will again shift to B. Thus, in the course of the Trial, the Burden of going forward with the evi­dence may shift from the plaintiff to the de­fendant, and vice versa. When, however, the case finally goes to the Jury, the Burden is always on the Affirmative to keep a Prepon­derance of Proof in his favor, while the Neg­ative is safe with an even balance or equili­brium.
(Ill) Respective Functions of Judge and Jury.—Each Party must first pass the gaunt­let of the Judge with his evidence in order to get to the Jury on the Issue. Unless the plaintiff makes a prima fade case and satis­fies the Judge that he has sufficient evidence to be considered by the Jury, and to form a reasonable basis for the Verdict, a Motion for a Nonsuit should be granted by the Judge. This Motion may be made by defendant at the close of plaintiff’s case, when it is incumbent upon the plaintiff to establish an alleged fact, and there is insufficient evidence on the point, or the only testimony contradicts it.
big.” See flayer, The Bulden or Proof, 4 Harv.L. Dci’. 45 (1590); 9 Wigniore, Evideilce, §2487 (3d ed., Boston 1940); Mekdams v. Bailey, 169 lnd. 518, 82 Nt. 1057 (190?).

A Motion to Direct a Verdict for insufficiency of the opponent’s evidence to go to the Jury may be made by either Party at the close of defendant’s case. The case should be taken from the Jury: (1) Where there is no evi­dence to support the Burden of Proof on some essential fact; (2) where there is no conflict in evidence, as where by the testimony of the plaintiff he put his head out of the window in the train, which is contributory negligence, and precludes recovery as a Matter of Law; (3) where the evidence is somewhat conflict­ing, but so certain and convincing that no reasonable man could decide otherwise. Di­recting a Verdict saves the need of a Motion for a New Trial; but the result of Setting Aside a Verdict is different, in that it results in a New Trial, while Directing a Verdict re­sults in Final Judgment. The test for the Two Motions is not necessarily identical, though very similar.1° The Judge thus has supervisory control over the Proof and the Jury may be prevented from rendering a Verdict against reason which would later have to be set aside as against the evidence.17

By a Demurrer to the Evidence, interposed at the close of the plaintiff’s evidence, the Court may be asked to pronounce the Law upon the case, admitting all facts which the evidence tends to establish and all reasonable inferences therefrom. Where the evidence fails to prove a prima facie case, the Demur­rer will be sustained. In theory the Func­tions of Court and Jury are sharply divided. It is for the Court to decide Questions of Law and for the Jury to pass on Questions of Fact. In practice the Court has important functions in passing on the evidence and controlling the work of the Jury, and the Jury applies the Law to the facts under the Instructions of the Court.
(lv) The Order of Proof.—When the plaintiff has the Burden of Proof on any one
10. 9 Wigmore, Evidence, ~ 2494, (3d ed., Boston
17. Id. at § 2487.


Kofiler & Reppy ComLaw P1d9 HG—la



Ch. 25

of the Issues, he has the right to open the evidence and prove the facts on which he re­lies to establish his case. The defendant may then present evidence to contradict the plain­tiff, and also to support his own propositions in defense, to relieve himself from the conse­quences of the plaintiff’s prima facie case, and by way of Cross-Action. Finally, the plaintiff may disprove in Rebuttal the af­firmative portion of his opponent’s evidence. Affirmative Evidence cannot, in strictness, be given by the plaintiff in Rebuttal. He should not reserve his real or main attack until after he has drawn out the testimony of the other party, and until the defendant has closed his case. He should offer all his evidence in chief on the points upon which proof is essential to his recovery. In Rebuttal he is confined to Rebutting evidence only, unless the Court, for good reason, permits him to offer evidence on his original case, If the plaintiff be allowed to give Affirmative Evidence in Rebuttal, the defendant should be allowed to contradict it, by Surrebuttal; so where the credibility of defendant’s witnesses is assailed. Each side must in turn exhaust his case, and neither may give evidence by piecemeal, but must in the first instance produce all his evidence in chief, on which he relies to establish his case, and is confined in Rebuttal to the contradic­tion of affirmative facts brought out by his adversary’s evidence. But it is no objection to Rebuttal that it incidentally tends to cor­roborate the party’s case in chief.

The plaintiff should not anticipate defenses, or attempt to disprove facts which have not yet been asserted, and upon which there may finally be no controversy. In an action for the price of goods sold, the plaintiff should prove sale, delivery, and acceptance of the goods, and then rest. He need not prove freedom from defects. If the defendant pro-

-pounds this, the plaintiff may rebut or refute

The departure from the regular order of iproof may be allowed in the sound exercise of

discretion by the Court. While ordinarily the affirmative must exhaust his evidence before the other party begins, yet the Court may be requested to reopen the case at vari­ous stages of the Trial, and admit evidence which has been overlooked or newly discov­ered, even after one or both have “Rested”; i. e., formally announced that his evidence is closed, and even after motion for nonsuit or submission of the case to the Court. Par­ticularly in the course of the trial the order of proof is discretionary, and the plaintiff may be permitted to strengthen his original case by the introduction of cumulative evidence in rebuttal, after the defendant has rested, if opportunity is given to the defendant to reply. But he must ask the Court to reopen the case for the purpose, or it may be excluded as part of the original case which should not have been withheld.

The Right to Open or Close

(I) The Objective Sought in the Exercise of the Right.—Generally speaking, at Com­mon Law, the advantage of the Opening and Closing Speech to the Jury, as well as the Right to Open and Close the Evidence, be­longs to the plaintiff, if he has anything to prove essential to his prima facie right of ac­tion; but it belongs to the defendant if there be no issue on the Allegations of the Declara­tion.’8
In Criminal Cases, the prosecution always has the Opening and Closing Argument, and it may be given to the plaintiff in all Civil Ac­tions by a Mere Rule of Practice, irrespective of his true position with respect to the Bur­den of Proof. This right to have the last word, after the opponent has been heard, with
18. If the defendant admits all the material facts alleged In the Declaration, he may assume the en­tire affirmative and have the Right of Opening and Closing the Case, as where he admits the due exe­cution of a contract, but sets up the Affirmative IJe­tense of Discharge by Release; or by Operation of Law. Gardner v. Meeker, 109 Ill. 40, 48 N.E. 307 (1897); Nagle v, schnadt, 239 IlL 595, 58 N.E. 178 (1900); Gibson v, Reiselt, 123 flLApp. 52 (1905).



See- 296
no opportunity thereafter to explain, expose fallacies, or remove the spell of an emotional appeal, is regarded as giving a very distinct advantage to the side which acquires it.

(II) The Opening Statement—Its Scope and Content.—As a preliminary to the intro­duction of the evidence, the plaintiff’s coun­sel, or that side which has the Affirmative of the Issue, and from whom Proof is first re­quired, has the right to make an Opening Statement. He briefly sets forth the issues of the ease as presented in the Pleadings, states what is admitted and what is disputed there­under, gives an outline of the main points he expects to prove in support of his case, and attempts to show what bearing the evidence will have on the points he intends to estab­lish. After this prologue, he then proceeds to call his Witnesses and to introduce his Docu­mentary Evidence.
The defendant may reserve his Opening Statement until after the close of the plain­tiff’s evidence, or it may be made immedi­ately after the Opening Statement by the plaintiff, in order to place the issues before the Jury at the outset.
The Evidence

(I) Methods of Production- of Evidence.— The mode of offering testimony is generally by Witnesses who are present in Court and testify Orally before the Jury, though in all the states there are provisions under which, in certain circumstances, the evidence of Material Witnesses may be taken before the Trial, reduced to wrtting and certified by a proper Officer, and thus used at the Trial without the appearance of the Witnesses themselves, Where Witnesses testify Orally, they are first questioned by the Counsel for the Party producing them, which is called the “Direct Examination” or “Examination-in-Chief”, and then by the Opposing Counsel, which is called the “Cross-Examination,” and perhaps again by the former, which is known as the “Re-Direct Examination,” and by the

latter, which is known as “Re-Cross Exami­nation,”
(II) The Examination of Witnesses: (A) The Oath of Witness.—When a Witness is called, before he takes his seat in the witness stand, the Clerk of the Court Administers the Oath that “the evidence that you shall give to the Court and Jury, touching the matters in question, shall be the truth, the whole truth, and nothing but the truth. So help you God!”
(B) The Direct Examin-ation,—The wit­ness, having asserted to the Oath, the Counsel producing the Witness then proceeds with what is called the Direct Examination. He usually begins by asking the Witness his name, residence, business, and other prelimi­nary matters, and then he proceeds to extract the desired information, He may do this ei­ther by plying the Witness with successive questions, or instead of requiring answers to specific questions, by permitting the Witness to tell his own story uninterrupted and un­guided by questions from Counsel. The ad­vantage of the second method is that it gives the opposition less opportunity to know be­forehand what evidence is to be offered, and hence lessens the likelihood of the Examina­tion being interrupted by captious objections, designed to weaken the impact of the evi­dence upon the minds of the Jurors.’9
It is the duty of the Court to exercise a reasonable control over the Mode of Exam­ination and the Scope of the Evidence offered. Leading Questions, or questions so framed as to suggest to the Witness the desired answer, may elicit answers based on Counsel’s sug­gestion, rather than on the Witness’ own knowledge. Questions which obviously in­struct the Witness as to the tenor of his re­ply, are, on this ground, generally objection­able. However, in dealing with a hostile Wit­ness, as on Cross-Examination, the bias and

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