Dēmos · Classical Athenian Democracy · a Stoa Publication
→ Other Examples.
Michael Gagarin, edition of March 27, 2003
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Besides these two cases, which in different ways both concern women, speeches survive from several other homicide cases. These include two defense speeches, one for a man accused of murder after another man mysteriously disappeared one night from a boat anchored in a harbor during a storm and his body was never found (Antiphon 5), and the other for a man accused of unintentionally killing a boy who was given a drink, perhaps intended as cough medicine, that accidentally caused his death while he was part of a chorus of boys being trained under the general supervision of the accused (Antiphon 6); we also have two speeches for the prosecution in cases where the speaker accuses a member of the Thirty Tyrants (Lysias 12) or a servant of theirs (Lysias 13) of ordering or otherwise being responsible for the death of one of the victims of the Thirty.
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Antiphon (Antiph. 5).
Prosecution speeches in general make more use of a narrative than defense speeches, since in order to accuse someone of a crime, one must usually recount the events of the crime first. But the defense speeches also rely on stories, though both tell a rather abbreviated story of the central event (the alleged killing). In Antiphon 5, the speaker builds a complex case based on a story of prosecutorial misconduct that begins with their treatment of him, which violated many long accepted rules of homicide prosecutions: they did not did not file the regular charge of homicide against him (a dike phonou) but used a different procedure (apagoge) normally used against common criminals like muggers (kakourgoi). He then concentrates especially on the way in which they interrogated a slave in violation of all the rules, without his consent (as the accused) and without him present, in order to induce the slave to incriminate him; then they put the slave to death, so he could never reveal the truth. These two examples of misconduct, together with several others that are mentioned more briefly, prove that the accused has been framed by sykophantai (“malicious prosecutors”) who are only interested in making money by bringing charges (or threatening to bring charges) against innocent people.
In somewhat similar fashion, the choregus or chorus trainer in Antiphon 6 devotes much of his defense speech to questioning the motives of the prosecution. His story is that the prosecutor, who was the victim’s brother, had no intention of bringing charges against him, but he was paid to do so by his (the defendant’s) political enemies. The choregus had recently indicted these enemies of his on a public charge of misconduct in office, but he would have to drop this case if he was accused of homicide, since anyone accused of homicide had to keep away from public and sacred places in Athens, including the law courts. However, when the magistrate in charge, the Basileus, refused to accept the case (since too little time remained in his one-year term in office), the choregus proceeded to prosecute his enemies and won a conviction. He then, with the help of mutual friends, reached an informal settlement with his friends, so that when the new Basileus took office, he was not immediately charged with homicide. But more than a month later, after the choregus had brought new charges against his enemies, they again paid the victim’s brother to bring a charge of homicide, even though until then he had been quite friendly with the choregus. This story, like the previous one, is intended to show that the prosecutor does not really think the accused is guilty of homicide but is bringing the case for other motives.
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The defendants in these two cases follow a time-honored strategy: turn the jury’s attention away from the specific details of the crime by telling a story about the prosecution’s ulterior motives in bringing the case and misconduct in handling it. The same strategy was pursued in one of the most famous cases in the US in recent years, the trial of O.J. Simpson for homicide. The prosecution directed its efforts at carefully building a case based on specific evidence of the crime, such as a footprint found at the scene and blood that was matched to Simpson’s by its DNA. Numerous scientific tests and expert witnesses were introduced to support these arguments. The defense, however, followed the same general strategy as Antiphon’s two defendants: they told a story about the prosecution that drew the jury’s attention away from the validity of DNA tests and matching footprints and focused it instead on the issue of racism in the Los Angeles police department. Racism (they argued) supplied the ulterior motive leading the police to accuse Simpson (a black man) in the first place and to mishandle and tamper with the evidence so as to frame him. Although the prosecution tried to refute this story, they never fully succeeded in turning the jury’s attention back to their story of the crime, and Simpson was acquitted primarily because the defense succeeded in keeping their issue—racism in the police department—in the jury’s mind rather than the prosecution’s issue—the chain of scientific evidence linking Simpson to the crime.
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