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August 6, 2015
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“Not Guilty, Demand Discovery, and Trial by Combat”

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Pop into any courtroom while an arraignment is taking place and you will undoubtedly hear defense attorneys reciting: “We enter a plea of not guilty, your honor, demand discovery, and set the case for trial by jury.”

What you probably won’t hear is “…and set the case for trial by combat.” But one lawyer in Staten Island, NY, did just that–he demanded a trial by combat after being sued for allegedly helping his client shelter money from a civil judgment.

Wikipedia has an interesting historical recount of trial by combat, and I’m sure the subject as it relates to Florida criminal law is best left for those with superior intellect, but I wonder if one of our clients, if informed that trial by combat was, in fact, an available option, would elect to proceed that way. I fear I shall never know the answer to that question.

On another note, a quick search of the term in WestlawNext yielded no meaningful results in Florida. However, some courts have made some passing references to the procedure.

  • Evidently, the Commerce Clause of the Constitution, standing alone, does not prevent state legislatures from substituting “processes of justice for the more primitive method of trial by combat.”Int’l Union, U.A.W.A. v. Wisconsin Employment Relations Bd., 336 U.S. 245, 252 (1949).
  • “The rule of law is that saving institution which preserves us all from settling disputes through trial by combat or mindless lottery.”Bagley v. Yale University, 2014 WL 7370021 (D. Conn. Dec. 29, 2014).
  • “[L]itigants should not have to face something akin to medieval trial by combat to resolve a basic business dispute.”CGB Occupational Therapy, Inc. v. RHA Health Services, Inc., 499 F.3d 184, 194 (3d Cir. 2007). (*NOTE: Is the Third Circuit implicitly acknowledging that trial by combat is an option available to litigants, just not a desirable one?)
  • “Many years ago, about 500 years ago, when the jury trial system first evolved in England, one of the first methods they used was to have a trial by combat. Two people would fight it out and whoever won, won the lawsuit. They rapidly decided that wasn’t a very good idea to do things because usually, the bigger, stronger person won.”United States v. Williams, 166 F. Supp. 2d 286, 296, n.5 (E.D. Penn. September 13, 2001).

This blog was authored by Hollywood criminal defense lawyer Jordan Redavid, founding partner of Fischer Redavid PLLC.

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