Trial by Combat – Musings Prompted By “Game Of Thrones”

Spoiler alert! For “Game of Thrones” fans, it was an interesting twist when Tyrion Lannister recently balked at a plea deal and demanded trial by combat in the criminal proceeding to determine whether he killed King Joffrey. This got us thinking: what exactly is trial by combat?  We here at Abnormal Use have become fascinated with the concept, and our editor couldn’t stop tweeting about it last week (as is evidenced by his tweets here, here, here, and here).

Well, after some research, we learn that it’s “a concept attributed to the Normans in the Middle Ages wherein disputants would square off and battle it out. The one left standing would be declared the victor.”  Obiter Dicta, 89 ABA J. 12 (March 2003). Trial by combat “essentially resolves all legal disputes by pitting the parties against one another in a no-holds-barred fight to the death. At the conclusion of the proceedings, the person who is not dead is deemed the prevailing party.”  Apparently, our modern civil trials evolved from trial-by-combat.  See Capers G. Barr III, Prepare for the Peacemakers, 7 S.C. Law. 21, 22 (JULY/AUGUST 1995) (“Buried in the recesses of the trial lawyer’s psyche is an awareness that modern trials evolved from a more primitive form of dispute resolution—trial by combat.”); Parham v. State, 250 So. 2d 613, 614 (Ala. Crim. App. 1971)(“A trial is an adversary affair drawing much of its etiquette from medieval trials by combat”). How about that?

A little over a decade ago, a citizen of the United Kingdom demanded a trial by combat to settle a £25 fine for a minor traffic ticket.  Reportedly, the accused filed a request “to take on a clerk from Swansea with samurai swords, Ghurka knives or heavy hammers.”  The request was denied. According to a recent Time article, trial by combat is is arguably still an option in the United States.  The rationale behind the trial by combat argument is that in 1776, the American colonies adopted the British common law, which provided for trial by combat.  British common law abolished trial by combat in 1819, but the United States has never expressly abolished it. Something to consider when you’re drafting your next answer to a pleading . . . .
(By the way, we’re not the only ones who were tweeting about trial by combat recently. Georgia Court of Appeals Judge Stephen Dillard offered a few tweets on the subject here and here.).

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