Thursday, February 03, 2011

Fantasy Legal Systems: The Criminal Justice Process...

Good Evening, All:

In continuing my explorations into fantasy legal systems, I've outlined the basic criminal justice process as I understand that it would work in most campaigns. What follows are those basic notes that I put together. Please check it out and let me know if you have any thoughts or questions.

The Criminal Justice Process
When a crime is committed, this is a basic overview of the general criminal justice process that takes place. This process may vary from kingdom to kingdom, using their own rules, procedures and terms to describe the various stages of the proceedings. Generally speaking, however, the criminal justice process involves the following stages.

1. Investigation
The City Guard may investigate a crime for various reasons, from witnessing an illegal act in progress to responding to an accuser’s complaint.

2. Search
If investigating Guards believe there's evidence of a crime at a particular location, they may search the premises. Some kingdoms require approval from a court before such searches can be performed, while others only require pre-approval if the premises belongs to a noble.

3. Interrogation
The City Guard can interrogate witnesses, and even question potential suspects. In some kingdoms, interrogation can extend to threats of torture or even extensive torture sessions to arrive at confessions.

4. Arrest
Once the City Guard has identified the person that they believe (or have observed) perpetrated a particular crime, they may arrest the person under suspicion, taking them into custody. Individuals under arrest are typically transported to an appropriate holding cell, where they will remain until charged.

5. Arraignment
An arraignment is the formal presentation of charges in open court. During an arraignment, the charges are read to the accused person (defendant) by a judge, and the defendant is asked to plead guilty or not guilty to the charges. In some cases, a barrister representing the defendant may be present, but this is not mandatory (if barristers are used in the kingdom at all). At this time, a defendant may petition the judge to be heard in another court of law. If it is determined that the case will be heard in another court of law, then the defendant is transferred to the new court for arraignment and trial there.

6. Trial
The actual trial itself is simply an opportunity to attempt to convince the judge presiding over the court to rule in favor of either the defendant or the accuser. At the judge's discretion, either side may present testimony and other evidence to support their claims.

If the case is being heard within the Royal Court, nobles and others of high social standing may request the right to Trial By Combat. In a Trial By Combat, no magic is allowed, and only weapons of noble knights (typically sword and shield) may be used. The judge has the right to appoint an opponent to represent the accuser, to prevent an unfair duel. The winner is dismissed, and the defeated survivor is sentenced normally.

7. The Verdict
After the trial is concluded, the judge typically makes an immediate decision on his verdict, or he may elect to retire to contemplate the case in seclusion, for a minute, an hour, days or even weeks. When the judge reaches a verdict, their finding is announced to the defendant in open court.

A judge may find a person guilty of all, some, or none of the crimes charged. In some cases, depending on the evidence presented and the discretion of the judge, the court may convict a defendant of a lesser crime than that originally charged.

* If the verdict is guilty, the defendant may request the judge to grant an appeal to the Royal Court for a new trial (assuming the case was not heard in the Royal Court.)

* If the verdict is not guilty, the accuser may request the judge to grant an appeal to the Royal Court for a new trial (assuming the case was not heard in the Royal Court.)

8. Appeal
If an appeal is granted, the defendant is transferred to the jurisdiction of the Royal Court, and the process is repeated from Step 5, Arraignment.

9. Sentencing
Once a verdict has been given, and if an appeal has not been requested or has been denied, the court then imposes a sentence befitting its judgment of the particulars of the case. Often, a guilty defendant is given a sentence within general guidelines set by tradition, precedent and/or established law. Depending on the nature of the case, the accuser may also receive a sentence if the judge finds certain elements of the case warrant such an action. Ultimately, the sentencing of the case remains at the discretion of the judge.

With Regards,


Clovis Cithog said...

In medieval law, it was understood that civil authority could make mistakes; therefore, the state had the right to take your life and/or inflict corporeal punsishment. However, your property/ title could not be seized unless you confessed or admitted guilt to a member of the clergy.

Hence, nobles would bravely waste away in dungeons, rather than admit guilt of a felony, so that their families would could retain their estates.

Almost the opposite of our current legal system, where the state has tremendous power to seize your property/ cash, but has to spend 3 to 6 million dollars in legal fees to deprive you of your life.

reference = Born in Blood
by Robinson

Rob Conley said...

Historically most justice was private. In that there was no police. The guards were just that guards.

The procedure was as follows.

The Victim would go to the shire court and seek an audience with the sheriff.

The Victim would bring several individual of good reputation to vouch for him and his story.

The victim and his supporters would swear in front of the sheriff (or magistrate) that a crime was committed by the perpetrator.

The sheriff would then issue a writ to the victim allowing him (or her) to summon the perpetrator to the next court to answer for his crime.

If the perpetrator refuses to appear or runs the writ or another write would authorize the victim to seize the person of the perpetrator and bring him to court.

At court the two sides would bring forth people to vouch for their respective stories by swearing oaths that what the one side said is true.

In England a jury would be listening to this and render judgment in other places (especially those dominated by Roman law) the magistrate or lord would render judgment.

The judgment was based largely on the quality of the people swearing oaths on side. The higher the social class and the better the reputation the more the oath was worth.

In England in the high middle ages the felony system was developed. At the end of shire court the sheriff would stand and ask everybody assembled "Whether you know of any infamous crime or deeds that needs answered for?".

If anybody among the assembled court knew of a crime they were require to come forth and give the particulars. The sheriff then may issue writs and seize the perpetrator for violating the "King's Peace.". The trial would be held with the Sheriff summoning the victim and any witnesses. The accused could bring people on his behalf. The same process of oath swearing was used as for regular trials.

It was the concept of the felony and subsequent development that lead to modern English Criminal Law. The rest of Europe uses a different system based on Roman Law as developed by the Napoleonic code.

Flynn said...

Excellent comments. I am ashamed to say that I could not turn up very many references to the flow of such a process, and so I started with a modern version and made changes based on what I could pick up from my reading. If you have any links, I would be very appreciative.


Clovis Cithog said...

@ Rob

brilliant historical analysis
but the distinction was

the state could take your life and limbs,

but for the nobles (people with property) only a confession or a conviction of heresy would deprive your heirs of their estate / inheritance

Rob Conley said...

Most analysis get lost in the details and it hard to see the overview. The best place is to start with Wikipedia and work your way from there into it's citations.

The Assize of Clarendon by Henry II of England is the penultimate decree that lead to our modern system (common law)

The folks at Columbia already wrote an excellent summary here

Rob Conley said...

Here you go the Internet Medieval Sourcebook

Has some copies of Anglo Saxon Dooms here. The thing to remember is that everybody is a assigned a wergild, a price in silver. Crime is punished by a fine based on a multiple of the person's wergild.

Rob Conley said...

Opps the link to the Angle Saxon dooms.