Tyrion Lannister’s Not Great Brushes With Westerosi Criminal Justice

Game-of-thrones-laws-gods-men-trial (1)Tyrion Lannister is a bad boy, always finding himself in trouble with the law. As a central figure of both A Song Of Ice And Fire and Game of Thrones, many if not most of the legal conundrums which arise in the main story concern the Imp, Tyrion Lannister. While both of his formal trials to date ended with trial by combat, they also provide the keenest insight we have as to how other trials work in Westeros. 

In this essay, I will attempt to explain and analyze the non-combat Trials of Tyrion Lannister from a legal perspective AND deduce which criminal procedure rights (if any) exist during trials in Westeros. This will service this blog’s overall aim of determining once and for all the very close question of whether the Westerosi legal system overall is good or bad. This question will require a close reading to tease out the many nuances.

JK LOL. The Westerosi legal system is 1000% Not Great Bob. It truly sucks! In order to determine exactly how Not Great Bob the system is, I will use this blog’s patented and extremely scientific Pete Campbell scale. The more Petes, the more Not Great Bob the feature makes the system. Let’s dive in!

  • Tyrion’s Trial in the Eyrie
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Art by Zoe Fung

The first time we see Tyrion confront a formal criminal charge is detailed in AGOT: Tyrion V when he is (wrongfully) accused by Catelyn Stark of the attempted murder of Bran Stark, and the successful murder of Jon Arryn by his “grieving” widow, Lysa Arryn. After spending some time in the Sky Cells, Tyrion cons his way into the Eyrie’s great hall to “confess” his crimes. 

First, Tyrion relishes the right to a formal criminal trial, wrongfully assuming that any such trial will take place in King’s Landing, under the watchful eye of his sweet sister Queen Cersei Lannister Baratheon.

If Cersei kept her wits about her, she would insist the king sit in judgment of Tyrion himself. Even Ned Stark could scarcely object to that, not without impugning the honor of the king. And Tyrion would be only too glad to take his chances in a trial. Whatever murders they might lay at his door, the Starks had no proof of anything so far as he could see. Let them make their case before the Iron Throne and the lords of the land. It would be the end of them. If only Cersei were clever enough to see that … A Game Of Thrones: Tyrion V

MODERN ANALYSIS: Based on this passage we know that Westerosi do NOT have the right to a trial by jury. Perhaps this one goes without saying since the word “jury” does not appear in any in the ASOIAF universe, but a trial by lord is an insufficient criminal procedure protection for the accused, as Tyrion will soon become quite aware.

In the United States, the right to a criminal trial by jury is protected both in the body of the Constitution (Article III, Sec. 2, Clause 3) and in the Fifth and Sixth Amendments. There is no other right that is mentioned that many times. It’s a fucking important right for a very good reason: citizen juries are an impartial bulwark in criminal trials against the state who ideally should not serve as BOTH the prosecutor AND the one to determine whether the prosecution was correct. The Framers of the Constitution alleged in the Declaration of Independence that George III had deprived them of the right to a trial by jury.

Previous courts in England had also deprived citizens of the jury right. For example, the “Star Chamber” courts in the Sixteenth and Seventeenth centuries, made up of a council of lords, would routinely hand out arbitrary punishments for imagined offenses that ordinary courts would not. No justice system can be considered fair without trial by jury.

I award the lack of a jury right a FULL FIVE Pete Campbells. Suboptimal!

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When confronted with Lysa Arryn in the main hall, Tyrion makes his demand for a trial. 

“Is this how justice is done in the Vale?” Tyrion roared, so loudly that Ser Vardis froze for an instant. “Does honor stop at the Bloody Gate? You accuse me of crimes, I deny them, so you throw me into an open cell to freeze and starve.” He lifted his head, to give them all a good look at the bruises Mord had left on his face. “Where is the king’s justice? Is the Eyrie not part of the Seven Kingdoms? I stand accused, you say. Very well. I demand a trial! Let me speak, and let my truth or falsehood be judged openly, in the sight of gods and men.”

A low murmuring filled the High Hall. He had her, Tyrion knew. He was highborn, the son of the most powerful lord in the realm, the brother of the queen. He could not be denied a trial.

MODERN ANALYSIS: Tyrion’s demand for a trial to determine the legality of his imprisonment indicates that Westerosi Nobles do have the modern day right of habeas corpus. One of the few individual rights protected in the body of the U.S. Constitution, habeas corpus is also a fundamental criminal protection in common law courts throughout the world, and recognized in Article III of the Universal Declaration of Human Rights. The right is invoked whenever someone seeks to challenge the reasons or conditions of a person’s confinement under color of law. Also, the term habeas corpus is Latin for “produce the body” which is incredibly goth.

I rate the fact that Westerosi nobles (at least) have the habeas right as a single Pete Campbell. One is fewer Not Great Bobs than before. Progress!
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We next learn that Tyrion’s assumption that he would have the right to a trial venued in King’s Landing was quite wrong.

“You want a trial, my lord of Lannister. Very well, a trial you shall have. My son will listen to whatever you care to say, and you shall hear his judgment. Then you may leave … by one door or the other.”

She looked so pleased with herself, Tyrion thought, and small wonder. How could a trial threaten her, when her weakling son was the lord judge? Tyrion glanced at her Moon Door. Mother, I want to see him fly! the boy had said. How many men had the snot-nosed little wretch sent through that door already?

MODERN ANALYSIS: Based on this passage we can conclude that Westerosi do not have the right to be tried in the venue where the crime was allegedly committed. This significant protection is enshrined in the Sixth Amendment to the U.S. Constitution, which states that all accused enjoy the right to trial by an “…impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law…”. This protection was important to the colonial founders because often trials would take place not at home before a jury of one’s peers, but rather they’d take place back in England before foreign tribunals. King Henry VIII and later King George III separately issued laws mandating that crimes of “treason outside the realm” to occur “inside such shires inside the realm” that were deemed appropriate by the Crown. The colonists protested to no avail, until they eventually revolted.

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Did I include that quote just to post a picture of The Shire? Absolutely.

We can see how important this protection is by looking at Tyrion’s situation. The alleged crime of killing Jon Arryn occurred in King’s Landing. However, Tyrion is faced with a trial in a hostile foreign venue where he’d have no chance of gathering witnesses or evidence to argue his innocence. Thus, the fact that Tyrion cannot elect the venue for his trial is a solid three Pete Campbells.

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Tyrion, confronted with certainty of death in a formal trial due to the lack of these protections, elects an uncertain death in a trial by combat. Luckily, it works out for Tyrion. Unluckily, it did not work out for Ser Vardis Egan, who was doing his best.

(RIP Ser Vardis, he deserved better)

  • Tyrion’s Trial in King’s Landing

We now fast forward to A Storm of Swords where Tyrion Lannister once again finds himself in a spot of bother. Someone has poisoned his beloved royal nephew. His sweet sister, the Queen Regent, accuses Tyrion of killing poor King Joffrey. His loving father, the Hand of the King, is a sentient pile of garbage. Tyrion is arrested pursuant to Cersei’s accusation to await trial on the sole count of Regicide. We pick it up in ASOS: Tyrion IX, aka Episode 47 of “Lannister Boys Talk About Things While In Prison”:

“Justice belongs to the throne. The king is dead, but your father remains Hand. Since it is his own son who stands accused and his grandson who was the victim, he has asked Lord Tyrell and Prince Oberyn to sit in judgment with him.”

Tyrion was scarcely reassured. Mace Tyrell had been Joffrey’s good-father, however briefly, and the Red Viper was . . . well, a snake. “Will I be allowed to demand trial by battle?”

“I would not advise that.”

“Why not?” It had saved him in the Vale, why not here? “Answer me, Uncle. Will I be allowed a trial by battle, and a champion to prove my innocence?”

“Certainly, if such is your wish. However, you had best know that your sister means to name Ser Gregor Clegane as her champion, in the event of such a trial.”

MODERN ANALYSIS: We know from this passage that Westerosi Nobles possess the right to demand trial by combat. Which is… good? I think?

It may disappoint some of you to learn that the right to trial by combat is not protected under either the U.S. Constitution or the Universal Declaration of Human Rights. It did exist in some formats historically, which you can read about more at Race For The Iron Throne. Trial by combat is barbaric, inhumane, and illogical but it is TECHNICALLY a right afforded by Westerosi due process. Lawyers love a good technicality so I’ll award it single solitary Pete Campbell. 

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“Does Cersei have witnesses against me?”

“More every day.”

“Then I must have witnesses of my own.”

“Tell me who you would have, and Ser Addam will send the Watch to bring them to the trial.”

MODERN ANALYSIS: We learn from this passage that Westerosi accused enjoy the right of compulsory process! This is a big one! The right to compulsory process means that the crown will compel (by force if necessary) witnesses that Tyrion identifies to produce evidence and/or appear at trial. In the United States this right is protected by the Sixth Amendment, which states in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right…to have compulsory process for obtaining witnesses in his favor.”

Without that right, Tyrion would have no method of obtaining witnesses who may testify to his innocence, and would have to just hope they show up? Now, it’s probably true that Tyrion only enjoys this right due to the fact that he’s a Westerosi noble and a Lannister to boot, so we can’t go crazy and and award zero Pete Campbells. Let’s be realistic here. I’ll give it One Pete.

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(Things go mostly downhill from here)


“You stand accused of regicide and kinslaying. Do you truly imagine you will be allowed to come and go as you please?” Ser Kevan waved at the table. “You have quill, ink, and parchment. Write the names of such witnesses as you require, and I shall do all in my power to produce them, you have my word as a Lannister. But you shall not leave this tower, except to go to trial.”

Tyrion would not demean himself by begging. “Will you permit my squire to come and go? The boy Podrick Payne?”

MODERN ANALYSIS: We can conclude from this passage that Westerosi do not have the right to bail. That is truly shitty!

While the U.S. Constitution does not explicitly outline a right to be released on bail, the Eighth Amendment does protect against “excessive bail”. Of course, bail may be revoked if the judge determines a person is dangerous or a flight risk (or if they can’t afford bail, which is barbarous in and of itself but is a subject for a different day… abolish cash bail folks). Anyway, not having bail is officially bad because it deprives a potentially innocent person of liberty without due process of law. I award it four Pete Campbells.

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Even so, he gave the parchment to his uncle the next day. Ser Kevan frowned at it. “Lady Sansa is your only witness?”

“I will think of others in time.”

“Best think of them now. The judges mean to begin the trial three days hence.”

“That’s too soon. You have me shut up here under guard, how am I to find witnesses to my innocence?”

“Your sister’s had no difficulty finding witnesses to your guilt.” Ser Kevan rolled up the parchment.

MODERN ANALYSIS: We can conclude from this passage that Westerosi accused do not have a waivable right to a speedy trial. This one is a little tricky! The timeline suggests that this conversation occurs 2 days after Joffrey’s death. Kevan suggests that the trial will begin in 3 days so we are talking a trial in under a week after the big party.

While the constitution’s Sixth Amendment does state: “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy trial.” 5 days postmortem is pretty fucking speedy! So what is the problem? Well, pay attention to the wording. The speedy trial right is enjoyed by the accused, not by the accuser.

The fact is that the speedy trial right is waived by the vast majority of criminal defendants because it is designed to keep someone from being detained or under accusation indefinitely. But most criminal defendants (like Tyrion!) would prefer to take their time to gather evidence, let people’s emotions settle, and develop a sound trial strategy. Tyrion gets none of that, and is told he’s got to be tried now. Pretty Not Great! I’ll give it Three Petes.

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And then it was dawn, and time for his trial to begin.

It was not Ser Kevan who came for him that morning, but Ser Addam Marbrand with a dozen gold cloaks. Tyrion had broken his fast on boiled eggs, burned bacon, and fried bread, and dressed in his finest. “Ser Addam,” he said. “I had thought my father might send the Kingsguard to escort me to trial. I am still a member of the royal family, am I not?”

“You are, my lord, but I fear that most of the Kingsguard stand witness against you. Lord Tywin felt it would not be proper for them to serve as your guards.”

“Gods forbid we do anything improper. Please, lead on.”

Tyrion

MODERN ANALYSIS: I actually don’t have much modern analysis here, I just wanted to highlight the sarcasm. I guess we have some general gestures in the way of impartiality and due process. Let’s give it Two Petes just to be safe.

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The High Septon began with a prayer, asking the Father Above to guide them to justice. When he was done the father below leaned forward to say, “Tyrion, did you kill King Joffrey?”

He would not waste a heartbeat. “No.”

MODERN ANALYSIS: This exchange is akin to a modern preliminary hearing where the accused is forced to enter a plea. If the plea is guilty or nolo contendre, then the trial proceeds to a sentencing hearing. If the plea is not guilty for whatever reason, the trial proceeds on the merits. Zero Petes for this feature of criminal procedure.

“There are witnesses against you,” Lord Tywin said. “We shall hear them first. Then you may present your own witnesses. You are to speak only with our leave.”

There was naught that Tyrion could do but nod.

MODERN ANALYSIS: We can conclude from this exchange that Westerosi do not enjoy the right to confront their accusers. FANTASTICALLY Not Great Bob work being done here.

The right to confront one’s accusers is fundamental to any system of due process. The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

In Mattox v. United States, 156 U.S. 237 (1895), the United States Supreme Court enunciated the three fundamental purposes that the Confrontation Clause was meant to serve:

  1. To ensure that witnesses would testify under oath and understand the serious nature of the trial process;
  2. To allow the accused to cross-examine witnesses who testify against him; and
  3. To allow jurors to assess the credibility of a witness by observing that witness’s behavior.

Tyrion gets none of this, forced to sit quietly while each witness is questioned by the judges, but not able to cross or impeach any of them. This dynamic plays out dramatically in the following exchange:

Ser Meryn went on to relate how Tyrion had stopped Joffrey’s chastisement of Sansa Stark. “The dwarf asked His Grace if he knew what had happened to Aerys Targaryen. When Ser Boros spoke up in defense of the king, the Imp threatened to have him killed.”
Tyrion could no longer hold his tongue. “Tell the judges what Joffrey was doing, why don’t you?”
The big jowly man glared at him. “You told your savages to kill me if I opened my mouth, that’s what I’ll tell them.”
“Tyrion,” Lord Tywin said. “You are to speak only when we call upon you. Take this for a warning.”
Tyrion’s inability to effectively cross examine Ser Boros means that he cannot get an actual answer to the question as to what Joffrey was doing when Ser Boros was threatening: beating and torturing Sansa Stark in the throne room. Similarly the lack of the ability to cross examine witnesses meant that Tyrion could not, for example, seek to undermine the credibility of slimy dickbags like Meryn Trant or Pycelle.
In short, the lack of the right to cross examine is a full Five Petes. Do better Westeros!
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Powdered, primped, and smelling of rosewater, the Spider rubbed his hands one over the other all the time he spoke. Washing my life away, Tyrion thought, as he listened to the eunuch’s mournful account of how the Imp had schemed to part Joffrey from the Hound’s protection and spoken with Bronn of the benefits of having Tommen as king. Half-truths are worth more than outright lies. And unlike the others, Varys had documents; parchments painstakingly filled with notes, details, dates, whole conversations. So much material that its recitation took all day, and so much of it damning. Varys confirmed Tyrion’s midnight visit to Grand Maester Pycelle’s chambers and the theft of his poisons and potions, confirmed the threat he’d made to Cersei the night of their supper, confirmed every bloody thing but the poisoning itself. When Prince Oberyn asked him how he could possibly know all this, not having been present at any of these events, the eunuch only giggled and said, “My little birds told me. Knowing is their purpose, and mine.”

MODERN ANALYSIS: We can conclude from this passage that Westerosi courts do not have evidentiary prohibitions against hearsay. This is not surprising, since the concept of hearsay is quite complex and riddled with modern exceptions. Unfortunately for Tyrion, the concept of hearsay is quite significant here.

Federal Rule of Evidence 801(c) defines Hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. ” It is not, as many twitter idiots assert, simply second-hand information. Moreover, there are a bazillion exceptions to the prohibition against admitting hearsay that could take up a whole law school semester.  No one has time for that. The upshot is this: Under modern rules of evidence, Varys’ testimony should not have been admitted. Not only are Varys’ notes potentially hearsay, but the statements from his little birds are almost certainly hearsay, making his testimony (actual legal term) DOUBLE HEARSAY. Twice as inadmissible.

The point of the hearsay prohibition is to provide courts a tool to weed out evidence that is unreliable. If evidence is reliable it should be able to be presented directly in court. If it can’t be presented in court, it generally shouldn’t be considered in evidence. Tyrion quite rightly notes that he can’t cross examine a little bird because they’re not here. That’s what the hearsay exclusion is about.

Not having a prohibition against admission of hearsay is definitively Not Great, but it’s also not THAT Not Great. This is because despite the prohibition hearsay evidence often comes into court anyway due to the myriad exceptions. Still, let’s go Two Pete Campbells.

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Hamstrung by the notable lack of any meaningful due process rights and buried under a parade of truly damning testimony, Tyrion begins to realize how absolutely fucked he is. Then Cersei produces Shae as a witness and, well, you remember the rest. From ASOS: Tyrion X.

“…I will give you your confession.”… Tyrion stared up at his father’s hard green eyes with their flecks of cold bright gold. “Guilty,” he said, “so guilty. Is that what you wanted to hear?”

Lord Tywin said nothing. Mace Tyrell nodded. Prince Oberyn looked mildly disappointed. “You admit you poisoned the king?”

“Nothing of the sort,” said Tyrion. more monstrous crime.” He took a step toward his father. “I was born. I lived. I am guilty of being a dwarf, I confess it. And no matter how many times my good father forgave me, I have persisted in my infamy.”

“This is folly, Tyrion,” declared Lord Tywin. “Speak to the matter at hand. You are not on trial for being a dwarf.”

“That is where you err, my lord. I have been on trial for being a dwarf my entire life.”

“Have you nothing to say in your defense?”

“Nothing but this: I did not do it. Yet now I wish I had.” He turned to face the hall, that sea of pale faces. “I wish I had enough poison for you all. You make me sorry that I am not the monster you would have me be, yet there it is. I am innocent, but I will get no justice here. You leave me no choice but to appeal to the gods. I demand trial by battle.”

Chills. CHILLS. Let’s go to Dinklage to bring it home.

Zero Pete Campbells for this speech. This speech is not just Not Not Great. This speech is Emphatically Great. No accused has ever given a better one. Under no circumstances may you @ me.

  • Conclusion

As a notable account executive at Sterling, Cooper, Draper & Price will attest Westerosi legal system suffers from certain structural deficiencies. Tyrion’s trials exposed him to several of them. However, due to his wealth and status Tyrion did enjoy certain due process rights, such as the right to habeas corpus and the right to compulsory process. These were not enough to allow him to defend himself against two crimes he did not commit.

Thus, overall, I award the Westerosi criminal trial system overall Five Pete Campbells, and may the Old Gods have mercy on its soul.

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