I'm Not a Lawyer,
but I Play One in a Game
M. Joseph Young
I would wager that I could create a list of not more than ten rules which, if you learned them, would enable you to fake being a judge well enough that no one could tell, unless he was at least a first year law student or experienced law enforcement officer (or maybe a habitual pro se litigant).
When I wrote those words on a forum thread on a game design and theory site, I immediately thought this would be something of general value to many gamers and referees in many game systems. There is a lot of excitement and tension in courtroom drama, but as has been observed by many gamers, it springs from the arguments raised, and can't easily be duplicated by rolling dice. If we want good courtroom drama, suddenly we all have to go to law school so we know what we're doing. I don't think we need to do that. There are a few basic principles on which most law is built, and if the referees and the players can grasp these, they can have excellent legal arguments that are every bit as dynamic and compelling as those on television (and perhaps a good deal more interesting than watching real trials). Even if you don't intend to create a courtroom drama game, if you plan to have some sort of legal system with which the players will interact, these basic principles can make your trials much more credible. With this, your players will be able to shout, Objection, your honor! and you, with due jurisprudential solemnity, can listen to their arguments and present your decision.
It might encourage you to know that I have a Juris Doctore and have passed a state bar exam. On the other hand, I am not a practicing attorney, and none of this is legal advice. This is just something of a basic instructional in the core principles of legal and civil law and procedure.
Number One: The Admissibility of Evidence
Evidence is not admissible if it's more prejudicial than relevant.
The single most common reason why evidence is ruled inadmissible is that its prejudicial nature exceeds its probative value. That is, it will do more to damage the defendant's image in the eyes of the jury than it will to point us to the truth of the case.
This is the reason you usually can't bring up a criminal's past record. "You stand here accused of mugging a little old lady to steal her social security check. Weren't you on trial last year for attempting to swindle a multi-million-dollar corporation?" We object to this because the fact that someone was suspected, or even tried, for a previous crime doesn't prove even that he did that, and it certainly doesn't have anything to do with whether he's the sort of person who would mug little old ladies. The only reason that would be asked would be to create in the jury's mind, This man is a habitual criminal, so they'll be more inclined to think he committed this crime. Now, it would be different if he had been convicted of mugging little old ladies. Then we might argue that it had higher probative value--that is, it's more likely that someone who mugged little old ladies before might be doing it again--so we argue that there's a pattern presented through that history.
Similarly, this is why hearsay is so often excluded. If John said that Mary said that Bill overheard Joe say he saw the defendant do this, why don't we have Joe here to say what he saw? John's testimony lacks probative value; he didn't see what happened. Again, there are exceptions. After all, if the defendant's secretary told me that he was out of the office at the time of the crime, it might be that neither she nor he would be willing to say so in court. At that point it becomes what is called a statement against interest, that is, the probative value outweighs the prejudicial nature because we can't get better evidence on this point, and we allow the testimony.
So the argument is about whether something presented to the jury is really evidence that shows what happened, or is just an effort by one party to smirch the other.
Number Two: Rights of the Defendant
A prosecutor or plaintiff who breaks the law can't convict a defendant of doing so.
In modern legal systems, people who are accused of crimes still have rights, and those rights have to be protected. For this reason, the most controversial cases in which evidence is excluded relate to the protection or violation of those rights.
Search and seizure and the right against self-incrimination are the two big things in this area. If it relates to something "discovered" by the police, was this something discovered incidentally to lawful actions (such as seeing it when they walked past the house), or were they already infringing on the defendant at the moment they made this discovery? In regard to confessions and information spoken by the defendant, did he offer the information willingly, without coercion, and with the knowledge that he did not have to do so? "Your honor, my client was tricked into making that statement by the police after he informed them that he wanted a lawyer present during all interrogations. That statement must be excluded." "This is an exception, your honor; he made the statement to a cell mate in the privacy of his jail cell." "Your honor, that cell mate was an undercover cop planted in the cell to induce him to confess." "Had it been an ordinary prisoner, your honor, he would have said the same thing. The police testimony is reliable."
And this brings us to the next rule.
Number Three: In my Chambers, Gentlemen
Sidebars and chambers meetings are intended to keep jurors from hearing what they shouldn't.
It makes for great dramatic moments on screen when the judge tells the attorneys to approach the bench, or to adjourn to his chambers; but why is this done, and what is the point?
It helps at this point to understand that in every trial we distinguish two tasks: determining the facts of the case, and identifying the law that applies. The latter task, that of identifying the law that applies, always falls to the judge. If there's a jury, they get to decide the facts. If there's no jury, the judge decides both the facts and the law.
The reason for a sidebar or a meeting in chambers is so that the jury won't hear facts which they shouldn't consider in making their decision. Thus, if evidence is excluded because it's prejudicial and not probative, or because it was obtained in a manner that violated the defendant's rights, it really doesn't help to tell the jury what it is that they're not allowed to know and why they're not allowed to know it. Even many gamers have trouble not acting on out-of-character knowledge, at least until we get the hang of it. It is a losing proposition to tell the jury, "Well, he actually told his cellmate how he did it, but because his cellmate was a cop who coerced that information from him by trickery you're not allowed to consider that a valid confession and shouldn't allow it to influence your determination of whether or not the man is guilty." The jury doesn't know whether to find him not guilty because the confession is so damning but can't be considered, or to find him guilty because in the light of the confession the rest of the evidence is so clear. So we don't want them to hear that there was such a confession until we know whether they're allowed to know it. For this reason, we discuss these things out of earshot of the jury.
This also means that you don't have these sidebars and meetings if there's no jury. There's no reason for it, since the judge who has to decide the facts also has to decide what facts he is allowed to consider, so he can hear all of them and then ignore those that he shouldn't know.
Number Four: Take Turns
Once the prosecution starts, each side gets to answer the other until both are done.
This may be obvious, but it's also important. In any civil or criminal trial, the prosecution or plaintiff always goes first, and they take turns. The game ends when either side says, "I don't need another turn."
It always begins with the side that claims the other side is wrong. In a criminal case, this is usually the state, that is, the government enforcing the law, and is called the prosecution. In a civil case, it's some guy who thinks he's been wronged in some way and needs to be recompensed for the injury he's suffered, and he's called a plaintiff. Either way, the lawyer for that side gets up and says, "This is what that guy did; please find him guilty, and administer the appropriate penalty."
In terms of procedure, there is almost always an opening statement by each side. This is tricky. The prosecutor or plaintiff will make an opening statement which is essentially an effort to outline what it is he expects to prove, so the jury can watch for the points they're supposed to notice. Then in most courts the defendant can, if he wishes, make an opening statement which responds to what his opponent has said, or he can wait until the opponent has finished presenting his case. That's a tactical matter. On the one hand, if you know your opponent has gaping holes in his case, you might want to get up and alert the jury to be watching for these. On the other hand, if you let your opponent know where you think his holes are and what you intend to attack, he might beat you to the punch and fill those holes adequately.
This aspect of taking turns continues on several levels. That is, there is an overall taking turns between who is in control of the hearing, and a lower level of taking turns with each witness. While the prosecutor or plaintiff is taking its turn overall, he chooses what witness is going to speak next. The defendant doesn't get to call any witnesses until the prosecutor has finished calling all of those he intends to call to prove his case. However, the defendant does get to question every witness called by the prosecutor. This is called cross-examination, or just cross in the vernacular.
Cross is limited. The defendant can only ask the witness questions that relate to what has already been asked. Now, part of every direct examination is the attorney's attempt to demonstrate that the witness is credible. The witness is always asked who he is and how he knows what he knows, so the jury knows he's not crazy. Thus the defense can always try to show that the witness isn't so sane as he initially appears, or doesn't really know what he claims. It goes to credibility, your honor. But other than this, if the person who put the witness on the stand didn't open a subject, the cross examiner can't do so, unless he can find a big loophole.
At this point it should be noted that when we say that the cross-examiner can't ask the question, what we really mean is that if he does ask it, the other side has the right to object (outside the scope of direct), and the judge must uphold the objection. It may be that a particular question does relate, in an unexpected way, to what has already been asked, so the cross-examiner is permitted to argue that the question is within that scope. It may be that the prosecutor chooses not to object so as not to call attention to a question; there are also other tactical reasons for not objecting.
Those tactical reasons would most commonly be that they open an opportunity for redirect. There are some things that a prosecutor or plaintiff couldn't ask a witness because of prejudicial value, but a defense attorney might ask. For example, a prosecutor couldn't ask whether the witness thinks defendant is a dishonest man; that wouldn't be evidence in the current case. If however the defense then asks the witness whether the witness dislikes the defendant, this means that the area of the defendant's relationship with the witness has been opened, and on redirect the prosecutor is free to ask why the witness doesn't like the defendant, and so obtain the testimony that the witness believes the defendant to be dishonest.
Just as the defense is limited on cross by the content of direct, so the prosecution is limited on redirect by the content of cross. It can then go to re-cross, and back and forth taking turns until one side passes. That is, like a bidding game, if you pass, the game ends. Usually judges don't like this, and try to keep it short, but it is part of the process.
We said that the defense didn't have to make its opening statement at the beginning. Now we'll observe that the defense doesn't have to make its opening statement at all, or do anything else, for that matter. There comes a point at which the prosecution or plaintiff will announce that he is finished, that he has presented every bit of evidence he has of the defendant's guilt. At that moment, the defense can stand up and say that his opponent has failed to prove what he needs to prove, and there is no need to put on a defense. In that case, the game is over, and the judge decides.
In most jurisdictions, the defense can do something slightly less committal than that. They can ask the judge to rule that as a matter of law (that is, not on the facts, if there is a jury present) the prosecutor or plaintiff has failed to introduce evidence to support an essential element of his case, and so the defendant must be found not guilty. If the judge agrees, the defendant is not guilty; if the judge disagrees, the defense still has the option of putting on a case. It costs nothing to make this motion if there's no jury, because the judge won't be prejudiced by it. If there is a jury, you want to be pretty sure, though, because having the judge say that he thinks the prosecution has proved the case satisfactorily at this point can be a devastating blow in the mind of the jury. It will take an incredible defense to overcome that.
So it's the defendant's turn, and now he calls the witnesses and makes the direct examination, and his opponent is on cross, and then again there is redirect and re-cross, but still the defendant is in control until the defense finally says that's the end of their defense.
Then it is the prosecutor's or plaintiff's turn again. If he says he has no further witnesses, we go to closing arguments. However, he can continue the game by going to rebuttal.
Rebuttal means that the defense raised points in his answer to the case which the prosecution wants to address. For example, we know that the prosecution can't make the trial about the defendant's character; but the defense can. If the defense raised is, this is a nice guy who would never do such a thing, then the prosecution on rebuttal can bring up a bunch of witnesses to say what terrible things he has done and what a nasty guy he is. Similarly, the prosecution had to show that the defendant was at the scene of the crime when the crime occurred. If the defense tries to create the alibi that he was actually at a restaurant with a friend who testifies to that fact, the prosecution can now produce the owner of the restaurant to say he was not there. The prosecution can't argue that the defendant was not where he said he was until the defendant has said where he was, but once he does that, it's time for rebuttal.
Because the rebuttal case is limited to the issues raised in the defense, it tends to be shorter; the defense is then allowed to rebut the rebuttal, and so on, until one side has had enough. This again doesn't usually go far, because judges think it gets silly after a while; besides, each rebuttal has to be limited to issues raised on the previous one, so that tends to shrink the area under consideration.
Taking turns continues as the prosecution or plaintiff and the defense each get to make a summary statement which tries to get the jury, or the judge, to see the facts their way.
You probably have been waiting for the next rule.
Number Five: Know the Elements
The prosecution or plaintiff must prove each part of the case, or they lose.
Whether it's a criminal trial or a civil case, there are things which must be proved against the defendant. If they are not all proved, the case fails. As we saw above, if when the prosecution rests his case he has not provided evidence to support each element, the defense doesn't need to put on a case at all.
The first element is always that a wrong has been done. Whether it's a crime or a tort or a breach of contract, someone had to do something wrong for there to be a case.
However, it is also essential that the wrong was done within the jurisdiction of the court. If a Spanish citizen assassinated the President of France while he was visiting Rome, it is doubtful whether any court in the United States has any right to find such a person guilty of that crime. Cases have been lost merely because the victim of the robbery failed to mention the address of the store where it occurred, so there was no evidence that the crime was within the jurisdiction.
For some crimes, the intent to commit the crime is one of the elements. Murder is a well-known example: if you kill someone, it's manslaughter, but if you meant to do it, it's murder. Many of the more serious crimes, like burglary and arson, require that there be some evidence that the defendant intended to do what he did. It's also an element in civil cases distinguishing negligence from intentional harm.
In general, if you ask who did what to whom, where, when, how, and why, you've probably covered all the elements. You should give some thought, though, to what is involved in proving a crime in each case.
What is meant by proof is our next rule.
Number Six: How Much Proof Do You Want?
Tie goes to the defender, and in criminal cases only a shut-out beats him.
In determining whether a case has been proved, you have to know what it means to prove a case. Proof has two aspects, the burden of proof and the level of proof. I've dealt with these in some detail in the second part of my three part Places to Go, People to Be series, Law and Enforcement In Imaginary Realms: The Course of Law, so I'll be sketchy here.
The burden of proof merely means, who has to prove something? In modern courts, when we walk into the criminal courtroom the prosecutor has to prove that the defendant did it. From that moment forward, the trial could be viewed as a shifting of the burden of proof. The prosecutor presents enough evidence that it appears the defendant did it; the defendant now has to prove the prosecutor is wrong. We said one of the elements might be that the defendant was there when it happened (depending, of course, on the crime). The prosecutor has the burden of proving that the defendant was there. He puts a gray-haired little old lady on the stand who says she saw him there. That's evidence; if that's the only evidence, then the point may be considered proved. The burden has shifted to the defense. The defendant might then challenge whether the little old lady can see so well, and so try to reduce the value of that evidence, shifting the burden toward the middle. If the prosecutor produces five witnesses that say the defendant was there, then the defendant has a lot more proving to do to prove that he wasn't.
There are nuances to this in places, but most of them are fairly intuitive. We call them presumptions. It is presumed, for example, that the children of a married woman are her husband's children. If her husband wishes to challenge this, the burden of proof is on him to prove they are not, not on her to prove they are. Even if it is she who wishes to claim they are not his children, she must provide proof, because there is a presumption of the fact which must be rebutted. Similarly, if someone signed a contract, it is presumed that he did so willingly. If he, or someone in his family, wishes to contest the signature, they must prove that at the time he signed it he was coerced or incompetent.
So to figure out where the burden of proof lies, you ask yourself where the presumption naturally falls. What would someone ordinarily believe given what is known in this situation? Whichever side wants you to believe something other than that must prove it.
The level of proof is also important. In civil cases, this is fairly easy. We call it the preponderance of evidence. What it means is that we put all the evidence in the balance, and whichever way the scale tips, that's the side that won; if the scale balances, tie goes to the defender. In criminal cases, however, we require the highest possible level of proof. We call it beyond a reasonable doubt, but what we mean by that is that we really can't imagine any other explanation which is at all believable. Other levels of proof, discussed in the aforementioned article, have their place in various parts of law and procedure, but rarely matter in court itself.
Number Seven: Exhibiting the Evidence
Testimony is what matters; physical evidence is for show.
What would a good trial be without someone handing the witness some piece of evidence and asking, "Do you recognize this?" There are only a couple things you really need to know about physical evidence in a trial.
The first is probably a real eye opener: exhibits are not really evidence. Only testimony is really evidence. That is, it isn't that we found a gun in a trashcan near the scene of the crime that matters. What matters is that the teller says it looks like the weapon that was pointed at her, the detective says where it was found, the ballistics specialist says it fired the bullet found at the scene, and the fingerprint expert says there's an eight-point match of a print on the handle to those of the defendant, which means it is more likely than not to be his fingerprint (a twelve-point match is considered conclusive). It is not the photographs, but what is said about the photographs; it is not the DNA itself but the lab's testimony regarding the DNA. We call the exhibits evidence, but they mean nothing without testimony.
This leads naturally to the second: exhibits usually require a chain of custody. That is, it's not sufficient to say, here's a gun. You have to connect the dots, so that we know who found the gun, where they found it, to whom they gave it, who examined it, and how it got to court. That way we know this is the same gun. That's why we're always hearing television police say, "Here's my mark;" it means that they are asserting that this is the gun they claim it is. In like manner, the defense attorney never says he saw these footprints at the scene unless he's expecting that the witness will confirm that they were there; he puts someone on the stand who saw the footprints, and gets him to talk about them. Then when the plaster cast is presented of the footprint, we get the guy who made the cast tell how and where and when he made it, and then we explain how it matches someone's shoe.
Of course, even though they aren't evidence, exhibits are fun for the jury. They break up the monotony of listening to evidence. We're going to pass around the knife that was used, so you can all see it. We know you can't tell anything from looking at it, but while our expert tells you all about how that was used in the crime you've got a visual that will help you remember it.
Number Eight: Instructing the Jury
Eventually you have to explain what the law actually is.
We commented that the judge decides the law and the jury decides the facts. When the lawyers are finished presenting their respective cases, the judge instructs the jury. In essence, he is at this point explaining to them what is important. That is, he'll tell a jury that if they believe that the defendant intended to kill the victim (and did so), then they must find him guilty of murder, but if they believe that the killing was accidental, then they must find him not guilty of murder but guilty of manslaughter. In short, the judge is telling the jury what facts are necessary for a verdict.
You're actually not on your own on this, though. In modern courts, one of the things you don't usually see on television is that the lawyers for the opposing sides get to submit jury instructions. That is, each side gets to tell the judge what they think the judge should tell the jury. So you've got a wonderful opportunity here to let the players tell you what they think the law is or should be on this matter.
Of course, I'm assuming that the referee is playing both judge and jury. In this case, he might want to instruct himself or he might just want to think about it and return the verdict. It's possible that player characters might be playing the roles of judge or jurors, in which case jury instructions are probably an important part of the tension.
Number Nine: Cite Authority
For game play, everyone should make up cases and say why they matter.
On the better courtroom dramas, the attorneys will call out the name of a case and say that because of that case this should or should not be allowed in this case. This is perhaps the most daunting aspect of this genre to the uninitiated.
If you were a writer for Law & Order, I'd tell you where to go to find good law and how to figure out what cases you need to know for a particular trial. You're not. You're playing a game. Make up the case names, and make up the details. All you need to understand is how the system works.
There are thousands of recorded case rulings. They date back to the British Royal Court, and include such matters as the sailors who ate one of their companions in the lifeboat so they could survive, and the man who slept with a girl who claimed she was twenty one but wasn't. No one knows them all. Lawyers just try to know the ones they're going to need and the ones their opponents are going to raise against them. They need to know the ruling in each case, and they need to know the facts.
They need that information because there are going to be cases on both sides of nearly every question. Is the tenant or the landlord responsible for the fence around the property? In one case, it was the tenant; in another it was the landlord. What's the difference? That case involved a tenant farmer who was keeping livestock on the property, so he was responsible for the fence; the other case involved a suburban row home, and the tenants reasonably expected the landlord to keep the property safe. This new case is about a business, and some kids got through a hole in the fence and got hurt. Is it more like the tenant farmer, or more like the row home tenants? If I represent the tenant, I'm going to want the judge to decide that the landlord had to take care of the fence, so my client is not responsible for the injury to the boys; if I represent the boy's parents, I want the business to be held responsible, so that I can sue them. Each side is going to argue that this case is like the one that favors his side and not like the one that favors the other side.
You're going to have to allow the players mutual creativity on this for it to work. One is going to have to be able to say, "In Ferguson v. Doherty the court ruled that horse owners were responsible for their horses;" the other side is going to have to be able to create, "In Ferguson, the matter had to do with a professional rodeo, not the draft horse of a milk cart; the case that matters here is Donahue v. Donahue, where the owner of a bull was not responsible for injuries to two boys who were poking it with a stick." Such creative expressions of imaginary legal opinions can give the game fire. If you were real attorneys, you'd have looked all these up and known what they were about before trial. For the game, you just have to wing it.
Besides, it's not at all unusual for the judge not to recognize a case cited by one side or the other. No one knows them all.
Number Ten: Law is More than Trials
Know something about the legal system outside the courtroom, too.
This article has been very narrowly focused on what you need for good courtroom drama. If you're doing legal drama, you want to cover more than this--property transactions, contracts and business, pre-trial hearings, arbitration, tax law, government, appeals, probation hearings, plea bargains, and more. If someone wants to create such a game, I hope this points them in the right direction for that. Meanwhile, I'll again mention that the previous article series, Law and Enforcement in Imaginary Realms, still appears at Places to Go, People to Be, in three parts, designed to help you understand the wealth of possibilities for constructing your own legal systems: The Source of Law, The Course of Law, and The Force of Law; and there's a Gaming Outpost article, Game Ideas Unlimited: Silence addressing the right against self-incrimination specifically.
I think with this much information, most gamers could produce a convincing simulation of a courtroom drama. I hope some of you find it useful to that end.
M. Joseph Young, known as M. J. on many forums, is co-creator of Multiverser and its various supplements, and author of Verse Three, Chapter One: the first Multiverser novel. His writings are found on many web sites, including his own M. J. Young Net. He is author of a previous article here at RPGnet, Intuition and Surprise.