Definition
Standing aside jurors is a procedural practice in criminal trials by which the prosecution directs a prospective juror to step aside temporarily during jury selection, without immediately stating any cause, until the full panel has been called. The juror is not permanently excused but is held in reserve. If the panel is exhausted and no sufficient jury has been seated, the stood-aside jurors may then be recalled, at which point the prosecution must either show cause for exclusion or accept them. The practice functions as a de facto prosecutorial prerogative to delay, rather than formally challenge, unwanted jurors without spending a peremptory challenge.
Common Confusion
Standing aside is easily confused with a peremptory challenge. A peremptory challenge permanently removes a juror from the panel with no reason required. Standing aside only temporarily defers a juror; the juror remains available if the panel runs out. The two mechanisms produce the same practical result in most trials — the juror never sits — but their procedural basis, limits, and historical origins are entirely distinct. Standing aside is also distinct from a challenge for cause, which requires stated grounds and judicial ruling.
Why It Matters in Research
This term is almost exclusively a feature of English common law and early American criminal procedure. Researchers working in pre-twentieth-century materials — English state trials, colonial American court records, or nineteenth-century American treatises — will encounter it frequently. Its presence in sources signals a prosecutorial jury-selection system structurally different from the modern American framework.
The practice emerged specifically as a workaround to the statutory restriction imposed by the Statute of Westminster (33 Edw. I, c. 29, 1305), which prohibited the Crown from challenging jurors peremptorily. Because the Crown could not challenge without cause, courts permitted an informal stand-aside as a functional substitute. This origin is critical: standing aside was not a legislatively granted right but a judicially tolerated practice whose validity was contested precisely because it achieved through custom what the statute denied by law.
In American jurisdictions, the practice was received with the common law but did not achieve uniform adoption. Some early American courts recognized it; others rejected it on the ground that the American prosecution held no special prerogative distinguishing it from the defense. By the late nineteenth and early twentieth centuries, the codification of peremptory challenges and challenge-for-cause procedures in American criminal codes largely displaced the need for the stand-aside mechanism. Researchers relying on American sources after roughly 1900 will find the term increasingly rare and, in most jurisdictions, obsolete.
The most significant trap for researchers is anachronism: a source discussing standing aside as a recognized practice is almost certainly pre-modern or specifically English. Finding the term in an American source is a signal worth investigating — it may indicate the court was directly applying received English common law, or it may indicate a transitional jurisdiction still working out the shape of criminal procedure.
Historical Dictionary Support
Black's Law Dictionary frames standing aside as a provisional act by the prosecuting officer during jury drawing, deferring a juror until the panel is exhausted. This is an accurate but compressed account that omits the statutory context driving the practice.
Bouvier's Law Dictionary provides the essential historical grounding: the practice arose to soften the effect of 33 Edw. I, which had forbidden the Crown from challenging jurors without cause. Bouvier notes the practice was repeatedly upheld in England and cites the English state trial reports (26 How. St. Tr. 1231) as authority. Bouvier also begins to address American reception, indicating the practice had some foothold in the United States, though his entry breaks off before fully canvassing American authority.
Neither dictionary addresses the practice's decline in American jurisdictions or its displacement by codified peremptory challenge systems, which is the most important fact for a modern researcher. Both treat the term as a live procedural concept consistent with their respective periods of publication, which itself is useful evidence of when the practice was still considered current.
Jurisdictional Note
Standing aside jurors remains most deeply rooted in English common law and historical English criminal procedure. American jurisdictions received the practice unevenly through the common law, and most have abandoned it entirely in favor of statutory jury selection frameworks governing peremptory challenges and challenges for cause. Researchers should not assume the practice was uniform across American states even during the period when it was recognized.