Dēmos · Classical Athenian Democracy · a Stoa Publication
→ Courtroom Procedure.
Victor Bers & Adriaan Lanni, edition of March 15, 2003
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Plot on a Map
With the preliminary procedures out of the way, the litigants proceeded to trial before a jury. Litigants were evidently expected to deliver their own speeches in court, though they could donate some of their speaking time to a co-speaker, often a friend or relative (sunegoros, see the Glossary entry). Speakers could obtain the services of speech-writers, or logographoi (see the Glossary entry), to help them prepare their case, but orators never mention their logographos and generally pretend to be speaking extemporaneously in court. In fact, speakers often boast of their inexperience in public speaking and ignorance of the lawcourts, perhaps to head off an accusation of sycophancy (sukophantai see the Glossary entry). Specialized legal terminology never developed in Athens, and forensic speeches are dramatic recreations of the events told in laymen’s terms. Presenting a case pro se was not as daunting in classical Athens as it may at first appear; most Athenians probably acquired some familiarity with the workings of the lawcourts, both from serving as jurors and by attending trials, which took place in or near the shopping district and served as a form of popular entertainment.
Each litigant was allotted a fixed amount of time to present his case. Some private cases were completed in less than an hour, and no trial lasted longer than a day. Speaking time was measured by means of a water-clock, a simple device whereby a set amount of water flowed through a hole in one pot into a second pot placed below it. A plug was used to stop the water during the reading of laws and evidence. A fragment of one water-clock survives. Unlike a modern trial, in which evidence is presented in a highly fragmented form and later synthesized into a coherent case by the attorneys’ summation, Athenian litigants provided a largely uninterrupted narrative of their case punctuated with the reading of evidence; in an Athenian court the evidence did not make the case but reinforced the claims and arguments presented in the litigant’s speech. Although a magistrate chosen by lot presided over each popular court, he did not interrupt the speaker for introducing irrelevant material or permit anyone else to raise other legal objections, and did not even instruct the jury as to the laws.
Plot on a Map
The laws were inscribed on large stone blocks erected in various public areas of Athens. Beginning at the end of the fifth century copies were kept in a public building, but it is unclear whether this archive was sufficiently organized to serve as a user-friendly source of law for potential disputants. Litigants were responsible for finding and quoting any laws that helped their case (presumably speech-writers assisted in this task), but there was no obligation to explain the relevant laws, and in fact some speeches do not cite any laws at all. There was no formal mechanism to prevent a speaker from misrepresenting the laws, though knowledgeable members of the jury and the crowd could heckle orators whose speeches were misleading. The treatment of law in our surviving speeches is consistent with Aristotle’s characterization of laws as a form of evidence, similar to contracts and witness testimony, rather than a decisive guide to a verdict. There was no system of precedent through case-law since there were no Athenian law reports. Verdicts were not regularly recorded and in any case the jury did not reveal the reasons for its decision. Nevertheless, speakers do at times refer to past cases in their arguments, though the jury was not bound to follow such “precedents.”
We have been using the terms “juror/jurors” as a translation for the Greek dikastes/dikastai to refer to the audience of these forensic speeches, but others prefer the translation “judge/judges.” Neither English word is entirely satisfactory, since these men performed functions similar to those both of a modern judge and a modern jury. This was a system with no professional judges to regulate what the jury heard, to instruct it in the relevant law, and to separate matters of fact from matters of law. There was no provision for appeal from the verdict; the Athenian jury wielded very great power indeed. Though we may suspect lawcourt speakers of flattering the jurors at the expense of the truth, the speaker in Demosthenes 57 is not exaggerating very much when he tells them: “I have turned to you, men of Athens, for I see that the courts hold greater authority, not only than the voters of the deme… but even than the Council and the Assembly—and rightly so, since your decisions are in all matters the most just.” (Dem. 57.56)
Jurors not only ruled in routine cases but also decided whether a law or decree passed by the Assembly was constitutional; most remarkably, after
Speakers almost always implied that the jurors all shared a large body of knowledge and opinion; and they often address the jury as if it were a single body that sat in judgment over many decades. Thus Aeschines can say to the jurors hearing a case fifty years after the fact, “You condemned the sophist [sic] Socrates…” (Aeschines 1.173). But of course the jury panels were not so many identical slices of the population. What were they actually like? How did they compare with the rest of the population?
As in most aspects of Athenian civic life, citizen males enjoyed a near monopoly, but jurors were a subset of that privileged group. Whereas a man could speak in court and vote in the Assembly when he was eighteen, he had to wait until his thirtieth birthday to take the juryman’s oath and his place among an annual panel of 6,000 men. The twelve-year difference in minimum age may look trivial, but must have counted for much in a society where the average life expectancy was about twenty-five. Moreover, the average juror might have been a good deal older than thirty: older men are more likely to have time on their hands in an economy where most work made heavy physical demands.
The economic character of the jury panel cannot be known for sure, and is likely to have varied from year to year and season to season; still, there are good reasons to believe that the jurors tended to be poor enough to find the small fee, a fraction of what a laborer could make in a day, an inducement to serve. And though we lack the evidence to be sure, the jury panels hearing most cases were likely to be comprised of men poorer and far less famous than the men on whom they were sitting in judgment.
Far from evading jury service, more jurors presented themselves for service than could be seated on any one of the 150 to 200 days the courts were in session each year. This was so, even though the jury panels were, at least in the
Consistent with the fiction that the jury was an unchanging group of men, there was no process like our voir dire, meant to exclude from the jury those with some knowledge of the case or acquaintance with the principals, their associates, or the men in court to speak on behalf of either side. On the contrary, Athenian litigants at times encouraged jurors to base their decision on preexisting knowledge. In his prosecution of Timarchus, Aeschines tells the jurors:
“Let nothing be more credible in your eyes than your own knowledge and conviction regarding this man Timarchus…. Look at the case in the light, not of the present moment, but of the time that is past. For the words spoken before today about Timarchus and his practices were said because they were true; but what will be said today will be spoken because of the trial, and with intent to deceive you. Give, therefore, the verdict that is demanded by the longer time, and the truth, and your own knowledge.” (Aeschin. 1. 93).
Speakers routinely refer to the jurors’ opinion of the litigants or their supporters, even when the supposedly notorious persons were not prominent, say leading politicians, but ordinary persons, too obscure to be known by many jurors, if any at all. Court rhetoric often pretended that the city was not a large area with a population in the hundreds of thousands, but a small village.
In our courtrooms one normally hears one voice at a time; judges gavel down any unauthorized voice, and jurors in particular are cowed into profound silence. Perhaps because the jurymen were perfectly conscious of their collective might and the presiding magistrate had no right to expel or punish a noisy juror, the Athenian jury panels were often raucous, and it is very likely that the crowd standing around at many trials augmented the hubbub of shouts, murmurs, and catcalls. Speakers often plead with the jurors to abstain from heckling, especially when they expect their words will provoke anger: “Now please, gentlemen of the jury, by Zeus and the other gods, let no one shout, let no one get angry at what I am about to say” (Demosthenes 57.50). Enemies of the democracy, notably Plato, denounced the tumult of the courtroom and suggested that it was symptomatic of the poor quality of justice meted out by the democratic courts. Yet it must be said that in the absence of professional guidance, jurors might have served justice by communicating to each other what they knew of the laws, the credibility of certain witnesses, or even their sense of what constituted a reasonable argument.
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