In response to "Under the Law", further notes on legal matters

I enjoyed "Under the Law". It provides more detail to an approach I had already adopted. About the only thing missing from what I'd worked out in posting about the subject of the law the last time it came up was the use of the Seduction skill to cover emotional appeals, which can be effective in less structured court environments or when attempting to create sympathy for your client during sentencing (or sympathy for the victim(s) if the prosecution).

I do have commentary and additional considerations. Since most games do not take place in a post-British-Empire environment, further consideration of what the courts are like in the game world needs to be made. One such consideration is the definitions given to various crimes and how specific the charges will be when brought into court. We insist on a charge to a specific crime, and each crime is carefully defined. In other systems, crimes may be defined rather loosely. Also, it may be possible to accuse a defendant generally, either as "he is a thief" with no specific thefts named in the charges or the prosecutor may be able to go on a complete examination of any aspect of the defendant's conduct to find wrongdoing. In either case, it will be much harder to prepare a defense.

Historically, judicial systems have varied in the relative weight given to witnesses and physical evidence. Many systems have been almost entirely based on witness testimony. However, the Chinese developed forensic medicine well before the West, in part because they preferred physical evidence. In a fantasy setting, there is a third type of evidence, that obtained through magic. One must consider who is considered competent to provide magical evidence and how it is valued compared to witnesses and physical evidence.

Another subject to consider in establishing a fictional system of justice is the treatment of foreigners. Do they have the same rights at trial as citizens or other nationals? If not, what are the differences? Do they have additional laws to follow or exemptions from certain laws? In the matter of extradition, are there established extradition treaties or are requests handled on a case by case basis? Will the government automatically turn a foreigner over to his government? To a third government? If not, what procedures are used to resist extradition? This could be anything from finding two citizens to vouch for you to a full preliminary hearing with the foreign government presenting its evidence and the defense attempting to show there is no grounds for a trial.

On the matter of arbitrator bias, it is important to consider not only actual bias in a particular case, but also whether the arbitrator is supposed to have a bias. The arbitrator may be expected to have a default assumption of guilt or innocence, or he might be expected to enter the court with a "blank slate".

"Punishments are also harsh and the dead make no appeals." This is not necessarily true in a fantasy setting. Even if the dead are unable to appeal, friends or relatives might still seek to clear his name.

On the Judgment Roll table, the listings for 11-40 and 41-60 results include "Defendant Declared Innocent". A declaration of "innocent" makes sense only with an assumption of guilt, where only demonstrated innocence will set you free. If guilt is not assumed, a judgment of "not guilty" or "not proven" is appropriate. "Not proven" is especially to be preferred if there is no bar on double jeopardy and you can be tried again if further evidence is turned up.

Laws will also cover the use (and misuse) of magic outside of court and there may be special courts set up specializing in violations of the laws regarding magic, since this is likely to be a specialized branch of the law, requiring judges and attorneys that have some understanding of magical theory as well as legal matters.

Trial by ordeal may not require direct divine intervention to be practical. It is possible to establish magical ordeals with at least as reasonable a chance of correct results as a trial. Consider, as one example, an extremely strong-willed weapon dedicated to the cause of justice. An innocent person might pick up the weapon, carry it across the room, and set it down again. A guilty person would find the weapon turning on him.

An alternative to government judiciaries are private courts, either as civil courts that are paid to settle disputes by the disputants or as criminal courts paid for by the government, but privately run for any number of reasons, the most simple being that those running the government don't want to be bothered. There is also the possibility of religious courts, not only for the trying of religious offenses where a church has independent authority, but also as general or specialty courts acting on behalf of the government. The priests of the god of justice may function as judges, while paladins serve as bailiffs. Piracy might fall under the jurisdiction of the sea god's temple, while crimes of necromancy might be handled by the clergy of the god of the dead.

While judges are drawn from lawyers under our system, I have always wondered if it might be better to train them along parallel lines. While both judges and lawyers need a good understanding of the law, I am not at all convinced that there is a great deal of further overlap in the needs of these positions, either in terms of skill sets or personality.

Screening of jury members may be skipped (certainly simply taking a randomly chosen set of qualified jurors and going with them would speed up the judicial process) or modified under different systems. Under a screening process, getting the right jury may be the main key to winning the trial.

A plea of insanity is adequately dealt with in this article, but it fails to address the much broader questions of personal responsibility that arise in a fantasy gaming environment. Magical influence will be a common defense (and perhaps even frequently a truthful one). Any system with even a mild interest in justice will need to address this issue. After all, there's no purpose served by punishing the victim of a mind-controlling spell. You need to get the puppet master and punish him.

When it comes to reduced penalties from pleading guilty, this might just mean that you get out of being tortured into confessing.

In premodern societies, most did not have much in the way of prisons. Restitution for the victims was not that uncommon. Wergild or other forms of restitution not only avoid costly government punishments, but also provide the victim or victim's family a sense of resolution that reduces the chance of private revenge. For outright punishments, having to carry a weight or combination weight/restraint for a period is a good option. Public punishments in various mixes of pain and embarrassment are also possible, from being whipped to being pelted by the villagers with rotten cabbages.

Bribery may be institutionalized in small quantities to get regular service; in this case, bribery for irregular activities may still be rare, difficult, and expensive. It is more like government service being a compulsory tipping situation, with government salaries being set with the assumption that employees will be getting private contributions as well. Bribery can actually be made quite complex, ritualized, or quirky.

Duping need not include lying. It is possible to mislead or make omissions without actually telling a lie. This could be necessary because one is magically prevented from lying or would be detected if lying. It could also be a careful effort to avoid perjury on technicalities. In this case, I would assign a penalty to the Duping roll.

Interrogation is the appropriate skill for examining all witnesses, not just hostile ones. If one were intimidating or badgering a witness, this should give a bonus to one's interrogation roll, but such behavior may also be cut short by the bench, depending on the judicial system and the leniency of the judge.

The difficulty chart for Philosophy lists "Disproving A Negative" for the Absurd level. This should be "Proving A Negative". Negatives are easily disproven by counter-example.

Expert witnesses should be harder to manipulate or rattle on the stand. For both Psychology and hostile Interrogation rolls, I would apply a -2 adjustment for every rank the witness has in the appropriate skill. For example, the herbalist at the local monastery finds a hole in the prosecution's story based on plants found in the victim's hair. He has 18 ranks in Herb Lore, so a -36 is applied to Psychology and hostile Interrogation rolls made with regards to the herbalist during the trial, since emotional states are less relevant to expert testimony.

The difficulty table for Public Speaking is not really trial-oriented. I do not have a replacement to offer at the moment, however. I also think that the Research difficulties should be based solely on the obscurity of the sought fact within the discipline. There should be modifiers based on the quality of the available library (with resources like wise elders also considered a "library"), and the type of information sought should rank the difficulty and cost of obtaining adequate libraries. Thus, the Imperial Law Library in Capital City provides a +20 to research legal matters, whereas a poor country lawyer's personal library might be a sorry -10 modifier. If that lawyer had spent the same effort and money on a library of traditional folk tales, he would have a library with no modifier or a positive modifier to his Research in that area.

Research should also be modified by the relevant skill. A lawyer should find legal information more readily than a scholar without legal training, for example. This might be done by giving a rank-based bonus, or rolling a static maneuver for the related skill and using the result to modify the Research roll.

Thought should be given to how witnesses are dealt with in a given system of justice. Who can call witnesses, and how are they called? Under what circumstances can someone decline to serve as a witness and when can they be compelled (and how)? Is examination of a witness done by lawyers, the judge, or by both lawyers and judges? Can jurors submit questions? Is there provision for cross-examination? For redirection after cross-examination? Who is eligible to give testimony and what instructions are given regarding treatment of testimony?

Finally, I think that the facts of the case have not been taken into account sufficiently to reflect a good system of justice. However, given the considerations stated previously regarding the different weights different systems will give to physical evidence, witnesses, and magical evidence, not to mention the varying ways of evaluating within those types, it is unlikely that a satisfactory general rule may be given. However, I would urge that in any system of justice that actually seeks to get at the truth, substantial modifiers should be given any time a lawyer seeks to perform a maneuver where evidence is relevant, based on the quality and type(s) of evidence in support or against the position he is arguing.