Criminal Procedure in Game of Thrones

by Brooks Pierce

Game of Thrones watchers know its quasi-Medieval Westeros as a remarkably harsh, unforgiving world.  There’s just not a lot of room for error.  In fact, if you’re a character and lose your head (figuratively), you just might lose your head (literally).  But one facet of Westeros is soft as butter: its criminal procedure.

The last few episodes have demonstrated as much.  Briefly for non-devotees, the much-hated King Joffrey is killed by poison at his wedding celebration, and his uncle Tyrion happens to be standing nearby as Joffrey chokes and bleeds to death.  Suffice it to say that Joffrey had it coming to him.  But as he fades away, he points his crooked finger at Tyrion.  Playing true to character, Joffrey’s mom, Cersei, freaks out and accuses Tyrion of killing her son.  A trial with three judges soon follows, and it doesn’t go well for Tyrion.  As witness after witness gives false or misleading testimony against him, he eventually decides he doesn’t like the forum so much.  So he demands a trial by combat.  Uh, what?  The trial is almost over, looking bad for the defendant, and he just decides he wants a different kind of trial!

We don’t have trials by combat in the United States.  But defendants can waive their right to a jury trial and opt for a bench trial if they think the latter is a better option.  Rule 23(a) under the Federal Rules of Criminal Procedure establishes four conditions to such a waiver:

  1. the defendant’s written consent to forgo a jury trial;

  2. the voluntary, knowing, intelligent, on-the-record nature of the defendant’s agreement to the waiver;

  3. the prosecution’s consent; and

  4. the district court’s approval.

Though the rules don’t specify when a jury waiver must be made, courts generally say it has to come before the trial starts.  In dicta from United States v. Cena, 451 F.2d 399, 401 n.2 (1st Cir. 1971), the court noted, “A substantial amount of court time and jury time is consumed and wasted in the selection of a jury that is not used.”  The Third Circuit has come out the other way and held that a jury trial waiver can be valid after trial but before the verdict is rendered.  United States v. Lilly, 536 F.3d 190, 194 (3d Cir. 2008).  Tyrion’s trial had almost run its course when he suddenly decided he needed a friendlier forum.  He’d want his trial to be in Philadelphia and not Boston if he were suddenly transported to the United States.

At the beautifully shot trial by combat itself, between Tyrion’s champion, Oberyn Martell, and the crown’s proxy, Gregor “The Mountain” Clegane, the result was certainly final but hardly definitive.  (Don’t watch to the end if you have a weak stomach.)  Oberyn was killed in spectacular fashion, but The Mountain appears to have been mortally wounded and pretty close to death, too.  The lead judge quickly announces the gods’ judgment that Tyrion is to be sentenced to death, but my first thought in watching the two collapsed combatants was, Was that a tie?  It’s unclear what rules apply, but if I were Tyrion’s lawyer I would definitely argue the equivalent of a hung jury and demand a second trial by combat.  We’ll see what happens, but I’m not sure how Tyrion’s going to wriggle out of this one.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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