#11: Facing the Law
This article originally appeared in the March/April 2020 issue.
For some reason, it’s fairly common for player-characters to find themselves taking actions that should put them on the wrong side of the law, whether or not they actually do. This Jotting will discuss some of the aspects of legal systems that might affect characters that do find themselves called to account for their actions.
The Powers of a Government
Broadly speaking, there are three powers that any government exercises: The Legislative power is tasked with creating law; the Executive power is tasked with enforcing the law, and the Judicial power is tasked with interpretation of the law. While it is common for each power to be exercised by a separate division of the government, it is by no means required.
From Arrest to Trial (A Brief Overview)
After it has been determined that an offense appears to have been committed, the Executive power will take the apparent offender into custody, and begin compiling the facts surrounding the incident. An in-depth investigation will be made, either by the Executive power (in Adversarial systems) or the Judicial power (in Inquisitorial systems), and a decision will be made whether to bring the offender to trial. The trial is conducted under the auspices of the Judicial power, and the Executive power and the accused will both present their respective interpretations of the facts, leading to the Judicial power rendering a decision on the accused’s culpability.
The process can be short-circuited at several points prior to coming to trial:
- The investigating power may conclude that it does not have sufficient information for a successful prosecution, or develops information that fully exonerates the accused, and declines prosecution (“drops the charges”, or nolle prosequi).
- In an adversarial system, when the information is presented to the grand jury, that body may decide that the information is insufficient to make a successful prosecution likely, and decline to indict.
- The accused may acknowledge culpability (guilty plea).
- The prosecution and the accused may come to an agreement where the accused acknowledges culpability to a lesser offense in exchange for the prosecution declining to proceed with the charges in the indictment (“plea bargain”).
- The accused may not admit culpability, but may accept penalty in the interest of avoiding the trial process (plea of “no contest” or nolo contendere). This generally has the same immediate effect as a guilty plea, but may have different long-term consequences. Nolo pleas are not always available to a defendant.
- The accused may suffer from a psychiatric condition that makes it impossible for him to understand the charges against him, or to assist in his defense. This is a finding that the accused is not competent to stand trial, and is comparatively rare—it may only be available to the severely retarded or to individuals who are clearly ‘disconnected from reality’.
Elements of the Case
In most jurisdictions, a successful prosecution “rests on three legs”: Motive, or a reason for commission of the act; Means, or a method of committing the act; and Opportunity, or a time and place for the accused to have committed the act. If any of the three legs can be shown to fail (e.g., the accused was able to show that he was not at the location at the time the crime happened), the prosecution fails. Many jurisdictions weaken the need for a motive to be proven by including in criminal statutes such conditions as negligence or depraved indifference; this has the effect of allowing prosecution for the results of failing to do something which would have prevented the act if done.
Inquisitorial Systems vs. Adversarial Systems
When a player-character “enters the system” for activities outside the pale of the law, the investigation and trial may, broadly speaking, operate according to one of two principles: Inquisitorial, or Adversarial.
In the Adversarial system, the investigation is done by the Executive power, who then submits their findings to the Judicial power. This is often in the form of a grand jury, a panel of citizens that evaluates the evidence presented, and advises the Executive power to proceed to trial (the grand jury returns an indictment) or to end the process (the grand jury declines to indict). Once the decision is made to proceed to trial, the court’s role is primarily to act as a referee, and ensure that the rules of procedure are followed by both sides, and secondarily to provide advice on the meaning of the law. Ideally, the court also ensures that the facts are brought out and presented accurately, but in practice the court remains neutral and passive in the presentation, acting only when violations are perceived, and even then primarily on request of one of the two parties that the court take cognizance of the violation. The court may not initiate an action on its own, nor may the court engage in any questioning or other investigation of the actions or claims presented.
In the Inquisitorial system, the Judicial power’s role is more active, and may begin earlier in the process, with the Executive power bringing the bare facts of the incident before the Judicial power. The court is then actively involved in the investigation, questioning any of the involved parties or witnesses, pursuing investigation of presented facts, and initiating additional investigations as indicated. Adherence to the rules is a secondary objective, but one that is often enforced rigorously due to the court’s own ability to intervene. This type of court system is often viewed by Americans as being a ‘guilty until proven innocent’ system; the perception is incorrect: there is a presumption of innocence under both systems, but the inquisitorial system is seen as more likely to dismiss any accusations against an innocent party at an earlier stage of the process, and is also less amenable to setting up ‘reasonable doubt’ through such common (in Adversarial systems) legal maneuvers as careful questioning to suppress facts or present them in a biased manner, failure to call witnesses, excluding witnesses based on shaky legal theories, or biased presentation of the facts.
Civil Law vs. Common Law
In a Civil Law system, primacy is given to the codified law, which is written as short articles in terms of general principles, rather than setting out specific situations and the law’s applicability thereto. Court decisions are made on the basis of applying those general principles to the specific situation; previous decisions in similar cases may be considered in an advisory capacity, but are not controlling (this is the doctrine of jurisprudence constante).
In a Common Law system, primacy is given to previous decisions of the court (case law), and codified law is written or modified based on the details of the decisions, with detailed descriptions of when and how the law applies to a situation. Generally, prior court decisions are held to govern where the facts of the case at issue are not significantly different from those prior cases (precedent), and the court will rule differently only reluctantly, and only where the facts are different enough to support overruling precedent (this is the doctrine of stare decisis).
(It should also be noted that ‘Civil Law’ is used in a different meaning, to contrast with ‘Criminal Law’. In this latter meaning, it refers to law governing torts, where the Executive power does not initiate action on behalf of the society. This Jotting focusses mostly on legal systems as they apply to Criminal Law.)
Customary Law and Statutory Law
This isn’t ‘vs.’, because most societies actually use a mixture, although one or the other—usually statutory law—predominates. Statutory Law is law passed by a legislative power and set down in writing; it forms the basis for most law in societies that have gotten large enough that not everyone knows everyone else personally. Even then, where society isn’t highly heterogeneous, Customary Law, or unwritten law generally based on ‘community standards’, will be a major factor that informs the law, and such isn’t unknown even in highly heterogeneous societies. Customary Law is often poked fun at once a society develops enough to have a full-time legal profession; consider the derision implicit in stories about judges who “can’t define it [obscenity], but know it when they see it”, or about the defense that “he needed killin’”—both of those are examples of supposedly applying Customary Law to situations where society expects Statutory Law to be applied. To the extent that a society mixes Statutory Law and Customary Law, the latter will generally inform the judiciary alongside case law, but with lesser influence.
Some jurisdictions permit private persons, not associated with the State, to initiate a criminal proceeding against an offender. This is called Private Prosecution, and is usually limited to specific classes of offense, under specific conditions, and perhaps only in specific parts of the court. The use of private prosecution tends to decline (and may be eliminated by statute) as the body of professional lawyers—both trial and non-trial—grows and divides into specialties.
Arbitration is generally used in Civil Law (as contrasted with Criminal Law, not Common Law) as a way to resolve a dispute without involving the State. It represents an intermediate solution to a dispute, between negotiation of a settlement acceptable to all parties and going to the court to render a decision. The arbitration process has much in common with the civil trial process, and its use is often encouraged, formally or informally, by the State (to reduce the burden of such cases on the State’s court system). One can easily imagine a system where private prosecutions for minor offenses might be allowed to go to trial before a private arbitration panel instead of the State’s courts.
(It should be noted that many court shows on TV are actually small-claims arbitration panels where the panel is made up of one or more [usually retired] judges. The contending parties are induced to accept this arbitration instead of going to an actual small-claims court by offering both a small honorarium for doing so, and agreeing to pay any award to the plaintiff out of show funding instead of taking it from the respondent.)
In most jurisdictions, only two possible verdicts in a criminal trial are available: guilty, meaning that the court believes that the defendant is in fact culpable in the manner asserted by the State, and not guilty, meaning that the court does not hold the defendant culpable. The verdict of “not guilty” does not mean that the defendant did not commit the acts asserted; it might instead mean that the court found legitimate justification for the commission of the act (e.g., self-defense, provocation [“fighting words”], etc.), or that the law itself is unjust (or unjustly applied in a particular case) (jury nullification, not always acceptable). In Common Law jurisdictions, the prosecution is generally not permitted to appeal a verdict of not guilty; the defendant is only permitted to appeal a verdict of guilty insofar as it can be asserted that the verdict was due to procedural errors (e.g., improper exclusion of exculpatory evidence, improper instruction to the jury, improper application of the law by the judge or jury). In Civil Law jurisdictions, the prosecution may, under certain circumstances, be permitted to appeal the verdict even in the event of a finding of guilty.
Some jurisdictions admit additional verdicts: courts in Scotland, for example, admit the verdict of not proven; this is in its immediate effect an acquittal, but is notionally used when the jury (or judge in a summary proceeding) feels that the evidence presented does not indicate guilt beyond reasonable doubt, but does provide significant doubt that the defendant is not guilty. There is no evidence to believe that such a verdict allows the prosecution to re-try the case after developing new information, but there is a belief that it does so allow in some societies that do not admit the verdict.
Many jurisdictions admit a verdict variously called not guilty by reason of insanity, or guilty but insane [or mentally ill], or some other similar phrase. This is generally only available when the defense enters it specifically as a plea, and is in effect an assertion that the defendant did in fact commit the acts for which he is accused, but suffers from a psychiatric condition that affected him at the time of the act to make him not responsible for the act. Such a plea requires that the defendant prove the assertion of psychiatric incapacity.