Is Trial by Combat Constitutionally Permissible?

I am really only concerned here with trial by combat in a criminal case in the federal courts of the United States. So if your interest is in trial by combat in contract actions in Nebraska, you will have to look elsewhere.

I am not unaware that there are several enumerated trial rights in the Sixth Amendment, including a jury right, and that there is a due process right in the Fifth Amendment. Trial by combat is not due process, is not a jury trial, and does not involve quite the right kind of confrontation of witnesses.

There is also a jury requirement in Article III, Section 2. That provision has, however, been declared by the Supreme Court to be an enunciation of a right in the defendant – rather than a prohibition of non-jury proceedings of jurisdictional status. 

Moreover, all these rights have been held by the Supreme Court to be waivable. So it follows, does it not, that a defendant could waive all and consent to trial by combat, at least as far as the Constitution is concerned?

To the best of my knowledge, the only right of which it is completely clear that it cannot be waived in the United States is that of the Thirteenth Amendment. You cannot sell yourself into slavery, or indentured servitude even if you try to do so personally, voluntarily (with no hint of coercion or even compelling circumstances), and with full knowledge (you drafted the contract yourself and being an expert on the history and consequences of the exact form of servitude you wrote into the contract). You might simply want to be a slave. Too bad; you can't.

Beyond such servitude, none of the individual rights of the Constitution have, I think,been declared non-waivable by holdings of the Supreme Court. If I am wrong about this, please let me know.

In particular, all the various trial rights have been held to be waivable and many of them are expressly waived in open court by the defendant before a guilty plea is accepted.

If all trial rights are waivable, however, then it would seem that genuinely elective trial by combat or by ordeal or by the flip of a coin would be constitutional. Now, perhaps, this (that is, absence from the Constitution, not combat trials) is not such a bad thing. Constitutions don't have to prohibit all evils. Congress is probably not about to pass a trial by combat law. (It can't pass so much as a proper budget.) Even the larger and fiercer sort of prosecutors would, for the most part, eschew trial by combat, although the most overworked ones might consent sometimes to trial by coin flip, if it could be kept quiet.

Still, it may strike you as unintuitive that trial by combat is constitutional. If you were to make an argument to that effect, to what in the Constitution should you point? You might at first think that the whole spirit of the justice and justice system provisions run against the idea. You could try an “emanations” and “penumbras” approach, a la Griswold v. Connecticut. That line of attack, however, has so far turned up only rights, and so, again, brings with it waivability.

We cannot get around the problem by arguing that waiver of the right against trial by combat would always violate one of the waiver elements, the best candidates being voluntariness and knowledge. However, quite a few of the defendants I prosecuted would have been delighted to fight me instead of sitting at defense table, and, although I was larger than most of my fellow assistant district attorneys, many defendants could have elected combat against me with perfect knowledge.

It might get messy, but it would not be inconceivable to take the line that, although all trial rights can be waived, they can only be waived so far. One can waive in order to plead guilty or to have a bench trial, but one can not waive all the way to trial by combat. The logical and constitutional theory behind such a limitation on waiver, however, has yet to be worked out. My own suspicion would be that when an otherwise waivable right crosses a line and becomes unwaivable, there is something else going on at that particular Rubicon, something in addition to individual interest, individually calculated.

The obvious argument that trial by combat is unconstitutional relies upon the Article III jury requirement:

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” Art. III, § 2, clause 3.

Recall that Article III defines, by its very first words, “the judicial Power of the United States.” “shall,” in late eighteenth century legal writing was, as it still is, mandatory. As an instrument establishing a limited government, the Constitution rules out everything other than jury trials. It does not take a very restrictive notion of what a jury trial is to conclude that there is no overlap with trial by combat, trial by ordeal or trial by coin flip (at least when trial by combat or ordeal are understood in their historical and not their metaphorical forms.)

If you think that the US Constitutions excludes federal criminal trial by combat, and not just trial by combat under a defective waiver, then this Article III clause is surely your most secure support. This is a powerful reason, I think, to read the clause to do exactly what it looks as if it is doing, restricting the power of the federal courts in criminal cases.

It should, I think, be considered a minor scandal that US constitutional law, as established by the Supreme Court, does not read the jury clause in this natural way, and so leaves open the constitutionality of trial by combat.

I will discuss the infirmities of the key Supreme Court case in a future post. In that post my target will be the federal criminal bench trial (trial by a judge without a jury). Perhaps you suspected all along that my real concern here was something other than the possibility of trials by combat. The bench trial, itself, however, is only an intermediate target. Ulterior is plea bargaining, a matter of much more than purely theoretical concern.