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Philocleon, the inveterate juror of Aristophanes’ comedy The Wasps, provides what must be a recognizable though exaggerated account of the ploys litigants use to win over the jury:
I listen to them saying everything to promote their acquittal. Come, let me see, what wheedling isn’t there for a juryman to hear there? Some bewail their poverty and exaggerate their actual troubles until they make their troubles equal to my own. Some tell us stories, others some funny piece of Aesop. Others make jokes to get me to laugh and lay aside my anger. And if we are not won over by these devices, right away he drags in his kids by the hand, boys and girls, and I hear them as they bow their heads and bleat in a chorus ... 10
9 Fora discussion of notions of legal autonomy at Rome, see Frier 1985:184–191.
10 Ar. Vesp. 562–570.
There appears to have been no rule establishing the range and types of infor- mation and argument appropriate for popular court speeches. The Constitution of the Athenians,a partial history and description of Athenian institutions probably writ- ten by Aristotle or his students, states that litigants in private cases took an oath to speak to the point, but this oath is never mentioned in our surviving popular court speeches and appears to have had no effect on litigants’ arguments.11Speak- ers were limited only by the time limit and their own sense of what arguments were likely to persuade the jury. Although anything was fair game in the popular courts – Lycurgus’ extended quotations from the poets Euripides, Homer, and Tyrtaeus on the honor and glory of battle in his prosecution of a citizen who left Athens when the city was threatened with attack12 are perhaps the most creative use of speaking time in our surviving speeches – there are discernible categories of extra-legal evidence that appear again and again in the corpus.13 Experienced speechwriters undoubtedly could predict the types of arguments and information likely to appeal to the jury and constructed their speeches accordingly. Indeed, there is evidence that juries at times expressed their displeasure at a litigant’s choice of arguments: one speaker tries to head off such criticism, pleading, “And let none of you challenge me while I am in the middle of my speech with shouts of ‘why are you telling us this?’”14
It is, therefore, possible to discuss Athenian notions of the types of information and arguments that were particularly relevant to popular court decisions in the absence of a stricture on the presentation of evidence in these courts. Because we rarely know the outcome of an ancient case and generally do not have the opposing litigant’s speech that would allow a comparison, it is impossible to know which strategies were most persuasive to an Athenian jury. In fact, as we will see, the categories of relevant evidence were fluid and contestable. Nevertheless, the surviving speeches clearly show the popular court juries’ receptivity to three
11 Arist. Ath. Pol. 67.1. For further discussion of this passage and a comparison to the relevancy rule of the homicide courts, see Chapter 4.
12 Lyc. 1.100,103, 107. For discussion, see Dorjahn 1927; Perlman 1964; Hall 1995.
13 Rhodes (2004) argues that court speeches focus mostly on the issue in dispute. My own view is that
most popular court speeches contain a mixture of legal and extra-legal information, and it was left to
the jury to determine which sort of evidence was most important in any individual suit. In any case, the repeated use of a particular type of extra-legal information in our surviving speeches suggests that this sort of evidence was considered relevant to a popular court jury’s verdict, even if, as Rhodes argues, it accounts for only a small portion of litigants’ arguments.
14 Hyp. 1col.43. In his defense of Euxenippus, Hyperides (4.10) suggests that speakers sometimes encourage jurors to heckle their opponents if they try to make particular arguments.
sorts of argument: (1) the expansion of the litigant’s plea beyond the strict limits of the event in question to encompass the broader background of the dispute; (2) defense appeals for the jury’s pity based on the potential harmful effects of an adverse verdict; and (3) arguments based on the character of the parties. These three categories of evidence overlap – character evidence, for example, can be used to show that the defendant does or does not deserve pity – but for the sake of clarity I will discuss them separately.
In this section, I take up the three types of extra-legal argumentation in turn, showing that the Athenians viewed them as relevant to reaching a just resolution to the dispute rather than as evidence in a public competition for prestige unrelated to the triggering event and legal charge. Of course, some litigants were undoubtedly motivated by a desire to gain honor on a public stage. Moreover, I do not doubt that the courts at times functioned in a manner far from the ideal, or that popular court trials may have also served a variety of social or ideological functions in Athenian society. However, I am concerned with the primary aim of the popular lawcourts, as it was understood by the majority of the participants. My contention is that litigants and jurors by and large viewed extra-legal argumentation as intended to assist the jury in its legal task of reaching a just resolution to the specific dispute that gave rise to the suit. The final two sections of this chapter discuss the role of statutes in Athenian popular court litigation, and how jurors evaluated the mass of legal and extra-legal argumentation presented to them.
Before I examine in detail each of the three types of extra-legal information considered relevant in the Athenian popular courts, a few general comments may help to clarify my approach. I discuss types of information and argument that are common enough in our surviving speeches to indicate that speechwriters and jurors thought them relevant to popular court decision making. In any individual case, however, litigants might dispute the relevance and relative importance of dif- ferent types of argument. The corpus of forensic speeches contains, for example, impassioned arguments both for and against the relevance of character evidence.15
Indeed, speakers sometimes contend that the jury should ignore extra-legal evi- dence and focus solely on the legal arguments made in the case.16 Such arguments were themselves part of the remarkably individualized and case-specific approach
15 Compare, for example, Dem. 36.55 and Dem. 52.1. Character evidence is both the most common form of extra-legal argumentation in our surviving speeches, and the most controversial.
16 E.g., Isoc. 18.34–35; Dem. 52.1–2; Hyp. 4.32. These statements may draw on ambivalence about the decision making process of the popular courts and the appeal of alternative approaches to relevance, such as that employed in the homicide courts. For discussion, see Chapter 4.
to justice employed in the popular courts: we will see that most speeches included a mixture of extra-legal and legal argument, and it was left to the jurors to decide which sorts of evidence were most important given the particular circumstances of the case.
In what follows, there is an implicit, and, in a few instances, explicit, comparison between the Athenians’ broad notion of relevance and the stricter approach of the modern American system. In practice, of course, modern trial lawyers are often able to communicate to a jury a good deal of information that is not strictly related to proving the elements of the charge or claim.17 Nevertheless, there is a crucial distinction between ancient and modern legal practice. In modern courts the law is set apart as the valid, authoritative rule of decision, and extra-legal norms can only trump legal ones surreptitiously.18In Athenian courts, by contrast, we will see that there was no authoritative rule of decision.
I focus in this section on the content of the extra-legal material in our surviving speeches because I argue that this material provided information vital to the jury’s verdict. This is not to deny the importance of the format of extra-legal argumentation. We will see that litigants often provide extensive background information about the dispute and the parties by presenting their case in the form of a story. In the hands of a talented logographer these accounts could be literary and entertaining pieces of prose. Artful narratives allowed speakers to hold the jurors’ attention, assisted the jurors in processing and remembering complex material that was presented orally, and gave the speaker an opportunity to display an appealing and sympathetic persona.
Appeals for pity and some forms of character arguments, such as the recitation of a litigant’s public services, were common topoi that served to orient the audience by placing a litigant’s presentation squarely in the familiar genre of forensic oratory. Although the format, placement, and type of extra-legal argumentation used by a litigant were influenced to some degree by the requirements of the genre and jurors’ expectations,19 extra-legal argumentation did not consist of presenting
17 Burns (1999:29–30, 36, 201), for example, argues that the American rules of evidence are flexible enough to permit an attorney to argue for a verdict based on extra-legal norms, and that, in practice, the trial jury’s task is to decide between a variety of competing norms – legal, economic, moral, political, and professional. For further discussion of modern notions of relevance, see Chapter 1.
18 Burns 1999:36.
19 Rhetorical handbooks called for forensic speeches to be divided into four main parts: prooimion
(introduction); diˆegˆesis (narrative); pistis (proof); and epilogos (conclusion). Topoi tend to be associ- ated with a particular part; appeals to emotion, for example, were thought to be appropriate in epilogoi and prooimia. For further discussion, see Usher 1999:22–26; Kennedy 1991:8–9.
generalized “stock” arguments. Rather, we will see that speakers presented highly individualized arguments based on the specific character and interactions of the parties, and, in the case of appeals to pity, the effects an adverse verdict would have on the litigant and his family given his particular circumstances.
Background Information and Fairness in Light of the Particular
Circumstances of the Case
Modern lawyers translate a client’s story into legal form largely by winnowing
down the client’s experience to a limited set of facts that correspond to claims and arguments recognized by the applicable law.20 Athenian litigants, by contrast, provide a “wide-angle”21 view of the case, one that includes not only a complete account of the event in question, but also information regarding the social context of the dispute, including discussion of the long-term relationship and interactions of the parties. As Humphreys points out, litigants sought to recreate the “social milieu” and portray the background of the case “in such a way that the jury will feel that, in the circumstances, he has the right on his side.”22 We will see that this often involved demonstrating one’s respect for the reciprocal obligations owed to relatives, friends, and neighbors, and one’s adherence to cooperative norms of fair dealing and a moderate approach to conflict.
Demosthenes Against Nicostratus illustrates the tendency of litigants to provide a highly contextualized account of a dispute. The suit is an apographˆe,a procedure through which any Athenian could proclaim articles of property belonging to a state debtor subject to seizure and public sale.23 The legal issue in this case seems quite simple: Apollodorus is challenging the defendants’ claim of ownership
20 Fora discussion of the process of translating lived experience into a legal discourse, see White 1990:179–
201, 257–269; see also Alfieri 1991:2107; Sarat 1996:354; Cunningham 1992; Gilkerson 1992:922; Sherwin
1994:39. This is far from a straightforward process. For further discussion, see Chapter 1.
21 Scheppele 1989: 2096.
22 Humphreys 1983:248; 1985b:350–356.For a discussion of the creation of the litigant’s social milieu that
focuses on ˆethopoiia,or dramatic characterization, see Scafuro 1997:50–66. The Barotse of Africa provide
an example of a society that had a similarly broad notion of relevance in their courts, but used contextual
information in a very different way than did the Athenians. According to Gluckman (1973:21), Barotse judges consider the relations of the parties and the background of the dispute in order to seek out a compromise that will not break up the relationships of those involved. Athenian jurors, by contrast, used context to help them evaluate the justice of the parties’ actions and to arrive at a “fair” result, one that generally involved choosing between the litigants’ accounts rather than reaching a compromise solution.
23 On the apographˆe procedure, see Osborne 1985a:40–58; Harrison 1998:211–217; Lipsius 1905–1915: 302ff.
over two slaves, arguing that they actually belong to the defendants’ brother Arethusius, a state debtor, and should therefore be confiscated. Apollodorus offers witness testimony of Arethusius’ debt and ownership of the slaves, arguing that the defendants, Nicostratus and Deinon, are asserting that they own the slaves to protect their brother’s property from confiscation.24
From the perspective of modern notions of legal relevance, one might expect the speech to begin and end with this apparently quite damning evidence. Apol- lodorus does not, however, discuss the slaves until the last quarter of his speech, but instead devotes the bulk of his time to a detailed narrative of how his past friendship with the defendant Nicostratus soured and eventually led to his filing suit against Nicostratus’ brother Arethusius, thereby securing the public fine that rendered Arethusius a debtor to the state. He begins by recounting the close bond of friendship (philia) and trust he and Nicostratus had shared as neighbors: Nicos- tratus managed Apollodorus’ affairs whenever he was away, and, when Nicostratus was taken captive and sold as a slave, Apollodorus gave his brother money to res- cue him and later mortgaged his property to help Nicostratus pay the ransom debt.25 Far from expressing gratitude for this generosity, Nicostratus conspired against him, perhaps, as Apollodorus suggests, in order to avoid having to pay off the mortgage on Apollodorus’ property.26 Nicostratus caused Apollodorus to be fined for non-appearance in response to a citation, enlisting his brother Arethusius to testify falsely that he had been properly served when he in fact had no knowledge of the suit. He also secured a default judgment against him in this case and forcibly seized all the furniture in his house. When Apollodorus learned of this, he filed an action for false citation against Arethusius. Nicostratus and his brothers did not back down, but tried to dissuade him from pursuing the case by vandalizing his farm and physically assaulting him.27 Undeterred, Apollodorus pressed on with his suit and secured a one-talent fine against Arethusius. Only after providing this background information does Apollodorus turn to arguing that the slaves at issue belong to Arethusius and are therefore subject to forfeiture. Apollodorus thus gives the jury a full picture of the social context of the dis- pute, one that emphasizes his mistreatment by the defendants and suggests that
24 Dem. 53.18–25.
25 Dem. 53. 4–14.
26 Dem. 53.14.
27 Dem. 14–17.
Arethusius, due to his dishonest dealings and breach of the obligations of friend- ship, fully deserves his status as a state debtor and the confiscation of property that Apollodorus seeks.28
Contextual information such as that found in Against Nicostratus is a common feature of Athenian court speeches. In cases that are part of a series of suits between the parties, speakers do not confine their argument to the immediate issue in question but rather recount the past litigation in some detail.29 One speaker announces in his opening his intention to provide extensive contextual information:
Because there have previously been lawsuits, gentlemen of the jury, between us and these same men concerning the estate of Hagnias, and they will not stop acting lawlessly and violently, using any means available to acquire things that do not belong to them, it is perhaps necessary to explain what has happened from the beginning. For in this way, gentlemen of the jury, you will more easily follow all the arguments in my speech, and these men will be revealed for the sort of men they are, in particular that they started
on their mischief a long time ago now and are continuing in it, thinking that they should do whatever occurs to them.30
This practice is particularly prominent in speeches for suits charging false testi- mony, which generally include an attempt to re-argue the previous case as well as evidence that a statement made by one of the opponent’s witnesses was false. For instance, in one false testimony suit the plaintiff states, “I now present to you a just request, that you both determine whether the testimony is false or true, and, at the same time, examine the entire matter from the beginning.”31
Litigants also commonly discuss the manner in which each of the parties has conducted himself in the course of litigation, appealing to cooperative values and norms of moderation. They emphasize their own reasonableness and willingness to settle or arbitrate the claim, and portray their opponents as litigious, dishonest,
28 As Christ (1998b:177) points out, Apollodorus’ account of a trusting friendship betrayed may well be more fiction than fact: Nicostratus worked for Apollodorus and they may have shared economic relations rather than bonds of intimate philia. What matters for our purposes is that Apollodorus chose to present the case in its broader context, however misleading his account may be.
29 E.g., Dem. 21.78ff; 29.6, 27; 43.1–2; 47.46; Andoc. 1.117ff; Is. 2.27–37; 5.5ff.
30 Dem. 43.1–2.
31 Dem. 47.46; see also Dem. 29.9,27; 45.1–2;Is. 2.27–37. For discussion, see Bonner 1905:18.
and even violent.32 The speaker in Demosthenes Against Evergus, for example, con- trasts his own restraint in pursuing his claim with his opponent’s33violent and inappropriate use of self-help.34 The dispute in this case arose out of the litigants’ service as trierarchs, wealthy citizens who were called on to finance the operation of an Athenian warship during their one-year terms. One of the speaker’s duties as trierarch was to collect state-owned naval equipment which Theophemus, a former trierarch, had failed to return. The speaker explains that he repeatedly tried to persuade Theophemus to return or replace the equipment before secur- ing a court order and, when even that had no effect, he obtained a decree from the Council authorizing him to recover the debt through self-help. The speaker emphasizes that he carried out the Boule’s instructions in a reasonable manner: he waited for Theophemus to return before seizing any property, he was careful to ascertain that there were no women in the house before entering, and he gave Theophemus the option of appealing to the Boule before he began the confisca- tion.35The parties’ roles were later reversed when the speaker was delinquent in paying out a judgment won by Theophemus. The speaker tells us that although Theophemus granted him an extension on the payment, he nevertheless appeared when the speaker was absent and proceeded to seize property worth more than the outstanding debt. In the process, he caused the death of the speaker’s old nurse by beating her mercilessly while prying a cup from her hands. Even after the speaker had paid the debt, Theophemus refused to return the property and carried out another forcible seizure. The prevalence of these types of arguments in our surviving popular court speeches suggests that the Athenians considered evidence of the conduct of the parties in the course of litigation relevant to the jury’s decision.
32 E.g. Dem 44.31:
I think it is necessary to speak also of the things they have done in the time since the case regarding the estate was brought, and the way they have dealt with us, for I think that no one else has been as unlawfully treated in connection with an inheritance lawsuit as we have been.
See also Dem. 21.78ff; 27.1; 29.58; 30.2; 41.1–2; 42.11–12; 47.81; 48.2, 40; Is. 5.28–30. For discussion of the importance of appearing eager to settle, see Hunter 1994:57.
33 In this suit for false testimony his opponents are technically Evergus and Mnesibulus, though he directs much of his argument against Theophemus, his opponent in the original action.
34 For discussion of the contrast in methods of self-help in this and other cases, see Christ 1998a:534–541; Hunter 1994:122–124.
35 Dem. 47.34–38.
When relatives or friends face each other in court, speakers describe the long- term relationship and interaction of the parties and seek to represent themselves as honoring the obligations traditionally associated with bonds of philia (“friend- ship”),36 and to portray their opponents as having violated these norms.37 Law- court speakers do not discuss why information about the relationship between the parties was considered relevant to the jury’s decision, but it is common sense that such relationships are relevant to a moral assessment of the situation. The Athenians recognized this. In the Nichomachean Ethics 38 Aristotle explains that just as the duties and obligations one owes to family, friends, fellow citizens, and other types of relations differ, “Wrongs are also of a different quality in the case of each of these [relationships], and are more serious the more intimate the friendship.” He continues, “For example, it is worse to deprive a friend of money than a citizen, and to fail to help a brother than a stranger, and to hit a father than anyone else.”39
Information about the relationship between the parties helped the jury evaluate the severity of the allegations and the extent of moral blame borne by each side.40
In addition to presenting evidence about relationships and interactions prior to the event at issue, litigants at times provide a highly contextualized account of the dispute itself. They often include arguments that are not explicitly recognized by law but that contribute to the jury’s overall sense of the fair result of the dispute. For example, speakers at times discuss the extenuating (and, less commonly, aggravating) circumstances surrounding the incident – such as the absence of intent, the offender’s youth, or his intoxication41 – even though the laws enforced
36 Philia encompassed relatives as well as friends, and, at least in Aristotle’s formulation, extended even to fellow citizens. Arist. Eth. Nic. 1165a14–35. The duties associated with philia depended on the degree of closeness between the parties. For discussion, see Chapter 1. For more extensive discussions of philia, see Millett 1991:110–114, Konstan 1997:56ff.
37 Christ 1998b:167–180. Christ discusses the emphasis on the breach of philia in cases involving relatives, friends, neighbors, and demesmen. Christ (1998b:167) points out that litigants at times even exaggerate the intimacy of their past relationship in order to present their cases in terms of a breach of philia.
38 Aristotle’s theoretical works must be used with great care as a source for the ideals or practice of the Athenian lawcourts. For example, although Aristotle suggests in the Rhetoric (1375a) that litigants should use arguments from fairness (epieikeia) when the written laws are unfavorable to their case, Athenian litigants generally do not explicitly appeal to epieikeia (Carey 1996:42). However, as Millett (1991:112) points out, the Ethics does seem to be a reliable source of Athenian popular values; Aristotle sets out to examine beliefs that are “especially prevalent or appear to have some rationale” (
! ": Arist. Eth. Nic. 1095a28).
39 Arist. Eth. Nic. 1160a3ff.
40 This evaluation might also be of use in deciding whether the defendant deserves the prescribed penalty.
41 Although intoxication is most often referred to as a mitigating factor in our surviving speeches, it is occasionally also cited for the purposes of aggravation. For discussion, see Saunders 1991b:111. That a
by the popular courts did not formally recognize such defenses,42 and did not provide for degrees of offenses based on their severity.43 This practice did not go entirely unchallenged, however: The speaker in Demosthenes 54 argues that his opponent’s attempt to characterize the assault in question as a harmless scuffle typical among boisterous young men could support mitigation at the penalty phase of the case,44 but was not relevant to the jury’s verdict on guilt.45
Discussion of the circumstances and context of the contested event is most prominent in suits involving a challenge to a will.46 Litigants often appeal to a variety of arguments rooted in notions of fairness and justice unrelated to the issue of the formal validity of the will. Speakers compare their relationship to the deceased with that of their opponents in an effort to argue that they have the better claim to the estate: they present evidence that they were closer in affection to the deceased, performed his burial rites, or nursed him when he was ill, and suggest that their opponents were detested by the dead man and took no interest in his affairs until it was time to claim his estate.47 One litigant goes so far as to suggest that equitable arguments trump a will or any other sort of legal claim, asserting that “when it comes to all those engaged in inheritance disputes, whenever they can demonstrate that they themselves (just as we are) are closer to the deceased both in blood and friendship, it seems to me that other arguments are superfluous.”48
circumstance such as intoxication could be argued both as a mitigating and an aggravating factor is indicative of the ad hoc nature of popular court decision making. Litigants drew on commonly held beliefs and social norms in making their arguments, but there were no unwritten legal rules regarding how a jury should interpret such evidence.
42 The homicide laws, which were enforced not in the popular courts but in special homicide tribunals,
did make distinctions based on the offenders’ intent. For discussion, see Chapter 4.
43 These topoi have been catalogued and discussed in detail in Saunders 1991b:109–118,Dorjahn 1930:162–
172, and Scafuro 1997:248–256.
44 The process of determining penalties in agˆones timˆetoi is discussed later in this chapter.
45 Dem. 54.21–22; see also Aesch. 3.198. Scafuro (1997:248) points out that as a practical matter, arguments for mitigation and exculpation are used interchangeably at the guilt phase of Athenian trials. The relationship between the argumentation at the guilt and penalty phases is discussed later in this chapter.
46 For further discussion of the use of arguments from fairness in the popular courts as compared to the more restrictive view of relevance in the special maritime procedures, see Chapter 6. Other recent discussions of the use of arguments from “fairness” or “equity” include Scafuro 1997:50–66; Christ
1998b:194ff; Biscardi 1970:219–232. Fora contrary view, see E. Harris 2000.
47 E.g., Is. 1.4,17,19, 20, 30, 33, 37, 42; 4.19; 6.51; 7.8, 11,12, 33–37;9.4, 27–32. For discussion, see Hardcastle
1980:11–22;Avramovic´ 1997:54–8. For an argument that equity argumentation in Isaeus is a response to
obscurities and gaps in the inheritance laws rather than an attempt to appeal to fairness, see Lawless
1991:110–134.
48 Is. 1.17.
Another suggests that an airtight “legal” case is insufficient if justice (to dikaion)
is on the opponent’s side:
Concerning the issue itself I think that I have sufficiently proved my case. But, so that no one may think either that I possess the estate for no good reason, or that this woman [my opponent], is being deprived of the money after having treated Thrasylochus [the deceased] in a kindhearted way, I would like to talk also about these matters. For I would be ashamed for the deceased unless all of you were persuaded that what he did [bequeath his fortune to me in his will] comported not only with the law, but also with justice.49
The speaker concludes with a summary of his arguments that places equitable considerations on an equal footing with the will and the law: “First, my friendship with the men who have bequeathed the estate ... then the many good deeds I did for them when they were down on their luck ... in addition the will, ... further, the law ... ”50
The frequency and centrality of discussion of the background and interaction of the parties in our surviving speeches indicate that this type of information was considered relevant to the jury’s decision. It has been suggested that the prevalence of such extra-legal arguments suggests that Athenian litigants and jurors regarded the court process as serving primarily a social role – the assertion of competitive advantage in a narrow stratum of society. One scholar, for example, explains the tendency to discuss the broader conflict between the parties as evidence that litigants were engaged in a competition for prestige unrelated to the “ostensible subject of the suit”: “rather than thinking in terms of a ‘just resolution’ of the dispute one should think instead of how the game of honor is being played.”51
There may be a simpler explanation, however, one rooted in the pervasive ama- teurism of the Athenian courts. Human beings naturally tend to think about social interaction in story form.52 The restrictive evidence regimes of contemporary
49 Isoc. 19.16. Although this speech was delivered in a court in Aegina rather than Athens, it was written by the Athenian logographer and rhetorician, Isocrates, and appears to follow the conventions of Athenian legal discourse. Speakers in Athenian courts similarly assume the relevance of arguments from fairness.
50 Isoc. 19.50.
51 D. Cohen 1995:90.
52 E.g., Bennett & Feldman 1981:7. Empirical data shows that, despite the fragmented form of the modern
trial, juries deliberate in a narrative mode (Hastie, et al. 1983:22–23).For this reason, modern trial
jury-based legal systems are, from a layperson’s perspective, counterintuitive. Amateurs left to their own devices in contemporary small claims courts, for example, often set their dispute in a broader context and use a variety of everyday storytelling techniques forbidden in formal court settings.53It is not surprising that amateur Athenian litigants would consider evidence concerning the background of the dispute, the parties’ conduct in the course of litigation, and arguments from fairness relevant in reaching a just outcome to the issue at hand. There is no need to resort to a theory of the Athenian court system as a forum primarily concerned with social competition to explain the contextual information included in our sur- viving popular court speeches. Indeed, the substantive norms to which litigants appeal – the ethics of fair dealing, honoring reciprocal obligations, and favoring settlement and moderation over violence and litigation – are inconsistent with a model of lawcourt interaction as a form of feuding behavior or competition for honor. We will see that this explanation for the prevalence of extra-legal material becomes even more attractive when we consider that Athenian law court speeches generally include what a modern would consider relevant legal argument as well as such extra-legal argumentation.
Defense Appeals Based on the Harsh Effects of an Adverse Verdict
The second major category of extra-legal argumentation in the popular courts is
the appeal for the jurors’ pity based on the misfortune that will befall the defendant and his family if he is found guilty.54 Froma modern perspective, this information is relevant, if at all, to sentencing rather than the determination of guilt. Indeed, in modern criminal law there is some dispute over whether evidence about the harm a conviction and sentence will cause to third parties, such as the defendant’s dependent children, should be considered even at sentencing.55The frequency of this topos in Athenian defense speeches and its anticipation by prosecutors
lawyers attempt to present their case in the form of a coherent story. For discussion see Bennett & Feldman 1981:7; Ferguson 1996:85; Lempert 1991:561.
53 O’Barr & Conley 1985: 661–701.Storytelling may have also eased the burden on litigants and jurors
by making it easier to remember a prepared text and easier to follow a complex and lengthy oral
presentation.
54 Two recent treatments of this topos are Johnstone 1999:109–125; Konstan 2000.I discuss here only verbal appeals to pity; for a treatment of dramatized appeals such as weeping and parading one’s children before the jury, see Johnstone 1999:114–122.
55 For discussion see Brown 2002.
suggest that appeals to pity were for the most part considered appropriate in the popular courts.56 Indeed, it has been demonstrated that prosecutors are more likely to argue that their particular opponent’s character or actions have rendered him undeserving of pity rather than to challenge the legitimacy of the practice itself.57
The surviving Athenian verbal appeals to “pity” (eleos) and “pardon” (sungnˆomˆe) in the courts did not take the same form as their modern counterparts, in large part because they appear in speeches at the guilt rather than the sentencing phase.58 In a recent article on the use of pity in Athenian law, Konstan points out that Athenian litigants who appeal to the jurors’ pity do not concede guilt, and therefore express no remorse. There is no Athenian equivalent of the “abuse excuse” or arguments for reduced punishment based on the defendant’s disadvantaged upbringing or sincere regret. Instead, Athenians provide information about the severe effects an adverse verdict will have on themselves and their families.59 In Konstan’s view, speakers who appeal to pity proceed on the assumption that they are innocent of the charge and use the topos “as another means by which a defendant insisted on his innocence”60 and as “a way of charging the jury to take seriously the power at their disposal, and be certain that they do not do grave harm, as they can, on the basis of insufficient evidence.”61 It is true that appeals to pity are always made in a manner consistent with innocence, and litigants do at times complain that if convicted their suffering will be all the worse for being undeserved.62 Nevertheless, discussion of the effects a serious penalty will have on the defendant likely served the additional purpose of assisting the jury in determining whether a conviction wasa fair result given all of the circumstances, including the severity of the likely
56 E.g., Lys. 9.22; 18.27; 19.33, 53; 20.34–35; 21.25; Hyp. 1.19–20; Isoc. 16.47; Dem. 27.66–69; 45.85; 55.35; 57.70; Johnstone (1999:111) shows that nearly half of defense speeches include a verbal appeal to the jurors’ pity.
57 Johnstone 1999:113.
58 Appeals to pity may well have played a more central role in timˆesis, the process of assessing the penalty
that occurred in those cases where the law did not specify the punishment. Unfortunately, the only such speech that survives is Plato’s account of Socrates’ defense speeches. Socrates refuses to stoop to asking for the jury’s pity even at the penalty phase, but his trial strategy can hardly be considered typical.
59 Konstan 2000:133ff.
60 Konstan 2000:136.
61 Konstan 2000:138.
62 E.g., Dem. 28.18–19;Lys. 19.45.
penalty. The trial verdict encompassed much more than a decision regarding factual guilt. The effects of an adverse verdict were thought relevant to the jury’s highly particularized and discretionary calculation of moral desert at the guilt phase.
As a practical matter, Athenian jurors had little control over the specific penalty imposed after a conviction. For some offenses (atimˆetoi), the penalty was fixed by statute. For others (timˆetoi), the jury chose between the penalties proposed by the opposing parties during a second round of speeches.63 Even in these cases, it seems that juries were not always given a choice at the penalty phase: once a verdict of guilty was entered, the litigants could reach an agreement on the proposed penalty.64 Whereas modern jurors in non-capital cases are generally not informed of the penalty faced by the defendant precisely to prevent sentencing information from influencing their decision on guilt,65 Athenian litigants regularly inform the jury of the penalty at issue. Even in cases without fixed penalties, jurors would often have a fair idea during trial of the range of penalties likely to be proposed. Prosecutors at times discussed their proposed penalty during the guilt phase,66 and in some suits – particularly those which called for restitution, such as theft or breach of contract – the prosecutor included the value of his claim in the indictment.67 A juror who believed that the defendant was guilty of the charge but did not deserve to suffer the fixed or probable penalty was more likely to vote to acquit than (in the case of an agˆon timˆetos) to assume in the absence of deliberation that his fellow jurors shared his desire for a lenient sentence and that the defendant would propose a more acceptable penalty. The attempt of the prosecutor in Lysias
15 vigorously to dissuade jurors from considering the severity of the penalty in
63 Fora list of actions that had fixed penalties and those that were determined in a sentencing hearing see
Harrison 1998:80–82.
64 Is. 5.18; Dem. 47.42–43; see also Dem. 58.70. Scafuro (1997:393–394) suggests that there may have been
a regular procedure for compromise in trials without fixed penalties after a verdict on the offense was
given.
65 Some modern legal commentators (e.g., Heumann & Cassack 1983; Sauer 1995) have argued that where the sentence is largely determined at the trial stage, as is the case when mandatory minimum penalties, three strikes laws, or sentencing guidelines apply, jurors should be informed of the sentencing consequences of finding the defendant guilty.
66 Isoc. 20.19; Dem. 56.43–44; 58.19. For discussion, see Todd 1993:134–135.
67 E.g., Dem. 45.46; Ar. Vesp. 897; Dion. Hal. Dein. 3. For discussion see Harrison 1998:80–81; Boegehold
1995:24 & n.15.Although a defendant could submit a lower proposal at the penalty phase, it would
be very risky for a convicted defendant to propose a sum that was vastly lower than the value of the
contract or the goods in question.
their determination of guilt suggests that this practice may have been frequent in
Athens:
And so, gentlemen of the jury, if it seems to you that the penalty is too great and the law excessively harsh, you must remember that you are here not to make laws regarding these matters, but to cast your ballot according to the laws as they exist, and not to show pity for the wrongdoers, but rather to express your anger at them and to help the entire city.68
It is important to note that appeals to pity in the Athenian courts were firmly rooted in the defendant’s particular circumstances; litigants generally do not crit- icize the penalty itself as disproportionate to the charges, but rather bemoan the tragic effects that penalty will have on them given their specific situation. These arguments are thus examples of the weakest form of what is known in modern parlance as “jury nullification.” A taxonomy of jury nullification includes three varieties, from strongest to weakest: (1) acquittal contrary to law because the jury believes that the defendant’s act should not be proscribed; (2) acquittal because the jury believes that the act, though criminal, does not deserve the punishment prescribed for it; and (3) acquittal because the jury believes not that the law or its punishment is unjust in the abstract, but that such punishment is inappropriate given the particular circumstances of the case.69 It is the third form of nullification that we meet in the Athenian speeches.
The particular circumstances that could render punishment inappropriate in the eyes of an Athenian jury included not only the circumstances surrounding the act itself, but also the tragic effects the penalty would have on the defendant and his family. Particularly common are appeals that an adverse verdict will leave the defendant’s family without support or the means to dower its unmarried women,70 and that failure to pay a fine will lead to the defendant’s loss of citizen rights.71
Alcibiades the Younger, for example, explains that the five-talent penalty carries more serious consequences for him than for other defendants: “For even though
68 Lys. 15.9.
69 Green 1985:xviii. On modern debates over jury nullification, see Noah 2001; Pettys 2001; Liepold 1996;
Butler 1995.
70 Lys. 19.33; 21.24–25; Dem. 28.19.
71 Lys. 18.1; 9.21; 20.34; Isoc. 16.45–46. Failure to pay a debt to the state could lead to atimia, or loss
of citizen rights, until the debt was repaid. Arguments that the proscribed penalty would have tragic
effects are by no means limited to capital cases; defendants argue for acquittal on the basis of heavy fines that might drag one’s family into poverty or result in atimia.
the same legal punishments apply to all, the risk is not the same for everyone; rather, those who have money suffer a fine, but those who are impoverished, as I am, are in danger of losing their civic rights [i.e., atimia ], which is, I think, a greater misfortune than exile. ... Therefore I beg you to help me and not allow me to be abused by my enemies, to be stripped of my country, or to become a curiosity because of my rotten luck.”72 Athenian notions of relevance in the popular courts thus extended to information regarding the concrete effects of the laws and legal decisions on the lives of individuals. Unlike modern jurors and judges, Athenian jurors were constantly made aware of the violence inherent in their judicial decisions.73 Although Athenian defendants do not explicitly discuss what role their appeals to pity should play in the jury’s decision, it seems likely that these arguments were thought not only to remind the jury of the seriousness of their task but also to assist in its determination of whether a conviction was a just result in the particular circumstances of the case.
The role of the Athenian popular court jury in judging whether a defendant who had committed the acts charged might nevertheless not merit conviction and penalty is more explicit in the special procedure known as apophasis. 74 Apophasis was used most commonly in charges of corruption, official misconduct, and treason. Under this procedure, the Areopagus, a council comprised of former magistrates,75 conducted an investigation and published a preliminary, non-binding report. The case was then passed to a popular court for a final decision. The most famous example of this procedure occurred in the context of the Harpalus affair in
323 b.c.e., in which a number of prominent politicians, including Demosthenes, were prosecuted for corruption. Four prosecution speeches connected to this affair survive. These four speeches are remarkable in that they do not discuss the evidence against the politicians at all; only two witnesses are called in all of the speeches, and the speakers repeatedly insist that the jury should blindly
72 Isoc. 16.47–48. In describing the consequences he would face if convicted as a greater misfortune than exile, Alcibiades the Younger probably refers to the exile suffered by his famous father for treason.
73 In a seminal article, Robert Cover (1986) discussed the concept of “law’s violence” – the threat of vio- lence that makes possible seemingly peaceful legal acts such as the sentencing of a criminal defendant, and the violence perpetrated on legal subjects by judicial decisions – and how the process of modern legal interpretation tends to push the reality of law’s violence into the background of legal officials’ minds.
74 Apophasis, introduced in the 340s, was one of the new powers granted to the Areopagus in the middle of the fourth century. For discussion of this procedure, see Hansen 1975:39–40; 1991:292–294; Worthington
1992:357–362; Carawan 1985; Wallace 1989:113–119; Rubinstein 2000:112ff.; de Bruyn 1995:117–146.
75 For discussion of the composition of the Areopagus, see Chapter 4.
accept the report of the Areopagus. For example, in one speech Dinarchus states “the [Areopagus] Council has found Demonsthenes guilty. What more need we say?”76 It is understandable that the prosecutors in this case would emphasize the Areopagus’ favorable verdict, and presumably the defense speeches that do not survive did not show so much deference to the Areopagus’ decision. Nevertheless, it is striking that the prosecutors in the Harpalus affair do not seem to consider discussing the evidence for the defendants’ corruption as their primary task.77
This trial strategy is even more surprising when we consider that the report of the Areopagus upon which the prosecutors rely did not include the evidence or reasoning for their verdict; Hyperides indicates that the council simply published a list of names and the amount of money taken as a bribe.78
Thus in the Harpalus affair the jurors were expected to render a verdict uphold- ing or overturning the Areopagus’ report even though they were not presented with any evidence regarding the facts of the case. A passage in the first speech of Dinarchus explains this paradox by suggesting that the popular court jury’s task may have included more than reaching a decision on the factual question of guilt. He notes that the Areopagus’ inquiry is limited to establishing the facts:
Unlike you [popular court jurors], who (now don’t get angry at me for saying this) sometimes are accustomed when rendering a verdict to privilege mercy over justice, the [Areopagus] Council simply seeks to report anyone who is liable to the charge and has committed crimes contrary to your ancestral ways.79
Dinarchus goes on to list cases in which the popular court jury acquitted men found guilty by the Areopagus in apophasis, adding this (doubtless at least partially self-serving) explanation:
76 Din. 1.84. See also Din. 2.6.
77 The first prosecution speaker, Stratocles, apparently briefly summarized the charges, but there is no
indication that he presented evidence or extended argument on the corruption charge. Din. 1.1. As Carawan (1985:134) points out, although it is possible that the speeches that do not survive presented evidence on the charges, the absence of any reference to evidence and the focus on the report of the Areopagus in the speeches we do have suggest that “the report of the Areopagus represented the sum of the evidence, and the jurors were asked to accept the judgment of the Areopagus on the facts of the case.”
78 Hyp. 5.6. De Bruyn (1995:143–144) suggests that the Areopagus’ report would generally include more information than was given in the Harpalus case.
79 Din. 1.55.
Judging the case, you [the popular court jurors] acquitted them. It was not that you were charging the Areopagus Council with being incorrect, but that you placed mercy rather than justice first, believing the penalty to be too harsh given the crime committed by the defendants. ... The report of the Areopagus Council was not shown to be false. Rather, even though the report was true, it seemed best to the jurors to acquit Polyeuctus. For the Areopagus Council was assigned to seek out the truth; but the court, I say, judged him worthy of pardon.80
The surviving prosecution speeches in the Harpalus affair support this account of the jury’s role: The prosecutors devote much of their time to broad attacks on the character of the defendants and other arguments suggesting that severe punishment is merited and pity inappropriate.81Thus, the two-staged apophasis procedure highlights what must have been one of the elements of popular-court decision making in ordinary cases as well: The determination of whether the allegations, even if true, merit punishment in light of the particular circumstances of the case and the defendant.
Arguments Concerning the Character of the Litigants
The most common type of extra-legal argumentation in our surviving speeches is
the liberal use of character evidence. Litigants present themselves as upstanding citizens by describing their military exploits or the public services they (and their families) have done for the state, such as equipping a warship or paying for a dramatic festival;82 and they criticize their opponents, for example, for failing to pay taxes and shirking military duty and public services,83 committing other crimes in the past,84 and being of low birth.85 Some form of discussion of character occurs
80 Din. 1.57–59.
81 E.g., Din. 1.47,71ff, 82, 94ff, 109–111;2.1–2,11ff;3.11,15,18, 20; Hyp. 5.26, 40.
82 E.g., Lys. 16.18; Is. 4.27; 7.37–41; Isoc. 18.58–61;Dem. 54.44. Such public services (“liturgies”) were
imposed on wealthy individuals. For discussion of references to liturgies in court speeches, see Johnstone
1999:93–100.
83 E.g., Is. 5.45–6;Dem. 21.154; 54.44; 42.22.
84 E.g., Lys. 14.21; 30.6, 9ff; Is. 8.40; Dem. 40.38; 57.58–60; Hyp 2.10; Din. 2.1–2,11ff.
85 E.g., Dem. 18.129–30;Lys. 30.2. For discussion of the topoi relating to character, see Carey 1994b;
Lateiner 1981.
in 70 out of 87 popular court speeches.86 Despite the frequency of arguments from character, there was clearly some ambivalence about the wisdom of this practice: litigants sometimes charge that they have resorted to a discussion of character only because their opponents’ slander has forced them to respond,87 and speakers sometimes urge the jury to ignore questions of reputation and character when reaching their decision.88 Perhaps because of the contestability of character evidence and a worry that its use might lead to verdicts based solely on the prejudices of the jury,89 in several cases litigants preface their character evidence with an explanation of why it is relevant to the jury’s decision. These passages, along with other aspects of the way in which character evidence is used in our surviving speeches, suggest that discussion of character was considered relevant both to discovering the truth and to determining whether the defendant deserved the prescribed or likely penalty. Of course, it is difficult to pinpoint the intended effect of any particular piece of evidence; discussions of character likely operated on more than one level of meaning.90 Nevertheless, the liberal use of character evidence in our surviving speeches is most plausibly explained as part of the attempt to reach a just resolution that took into account the unique circumstances of each case.
The first justification for character evidence we meet in the speeches is that it assists the jury in finding facts through an argument from eikos, or probability.91 The Athenians tended to view character as stable and unchanging.92 That a defendant had committed crimes in the past or otherwise exhibited bad morals or character
86 Speeches in maritime suits (dikai emporikai) are not included in this calculation. For a discussion of relevance in maritime cases, see Chapter 6.
87 E.g., Lys. 9.3; 30.15; Hyp. 1.8–9;Dem. 52.1.Litigants also at times apologize and suggest that they
recognize discussion of character as a digression. E.g., Dem. 57.63; Is. 5.12.
88 E.g., Dem. 52.1–2;Hyp.4.32.
89 The defendant in Hyp. 4.32, for example, expresses the fear that his opponent has emphasized the
speaker’s wealth in the hope that the jury will convict him out of spite.
90 Carey 1996:42–43.
91 For discussion, see Saunders 1991b:113;Johnstone 1999:95–97.
92 The speaker in Demosthenes 58, for example, recounts his opponent’s past bad acts and asserts,
“remembering these things, you should suppose that this man is the same now as he was then.” Dem.
58.28. See also Dem. 25.15; 36.55; Hyp. 1.14ff; Eur. fr. 810; Men. Epit. 1094–1101; Soph. fr. 739. Although passages assuming a stable character predominate in our sources, speakers and dramatists do at times argue that one’s character can change over time or be affected by the environment when this position is helpful to the argument or the dramatic situation. For a detailed discussion of passages on either side, see Dover 1974:88–95.
was considered highly probative of whether he was guilty of the offense charged and whether he was telling the truth in his present speech. Thus, for example, one speaker states, “If you knew the shamelessness of Diocles and what sort of man he was in other matters, you would not doubt any of the things I have said.”93
Another explains his decision to discuss the prosecutor’s history of bringing false accusations and the defendant’s good character at some length:
Now I think, men of Athens, that presenting witnesses on these matters is more to the point than anything. For if a man is always acting as a sycophant [i.e., one who is excessively litigious], what must you think he is doing in this case? And by Zeus, men of Athens, I think it is also to the point to present to you all signs of Phormio’s character and his righteousness and generosity. The man who is unjust in all his dealings might, if it happens, have wronged this man too. On the other hand, he who has never done wrong to anyone, but rather has voluntarily done good deeds for many people, on what basis would he, in any probability, have done wrong to this man alone?94
Character was all the more relevant to fact finding in a world without modern techniques of forensic investigation and evidence gathering: in the absence of hard evidence, character was a proxy for guilt or innocence. Speakers at times argue that evidence of a man’s character over the course of his entire life is more reliable than the rhetoric and misleading statements made by litigants during the trial. One defendant tells the jury, “I think you should judge me not from the slanders of the prosecutor, but rather by examining how I have lived my entire life. You see, it’s impossible for anyone in the city, whether wicked or decent, to escape the notice of the citizen body.”95 He then cites his clean record and meritorious service to the city before arguing, “You ought to take these things as proof for the purpose of this case that the charges against me are false.”96
93 Is. 8.40.
94 Dem. 36.54–55.
95 Hyp. 1.14.
96 Hyp. 1.18. Ina similar vein, the speaker in Lysias 19 argues,
Bear in mind that while someone might be able for a short time to fake his character, there is not one man who could conceal his wickedness for seventy years. ... Therefore it is not right to trust the words of the prosecutors more than the deeds which they have done during their whole life, and also time, which you must consider the clearest means of ascertaining the truth.
Lys. 19.60–61. See also Dem 58.27; cf. Aesch. 1.93.
The second reason given for the citation of character evidence is that it is relevant to the jury’s assessment of whether the defendant deserves the penalty for the charge or should be given pardon.97 To cite just one example, the prosecutor in Dinarchus Against Aristogeiton engages in an extended character attack on Aristogeiton, noting that he failed to support or properly bury his father, had been convicted on several charges in the past, and was even so base that his fellow criminals in prison voted to shun him.98 The speaker then asserts that Aritogeiton has forfeited any right to a lenient penalty, stating that he deserves to suffer execution “on the basis of both his whole life and the things he has done now.”99
Litigants generally do not challenge the idea that one’s character should be factored into the jury’s calculation of moral desert, even though character is normally regarded in classical Greek culture as stable and unchanging, with the implicit assumption that it is a natural attribute over which the defendant has no control.100 Athenian litigants do not argue that they should not be held responsi- ble for immutable character traits, though we have seen that litigants sometimes argue that the lack of intent to commit the act is an extenuating circumstance. Philocleon’s defense in the trial scene of Aristophanes’ comedy the Wasps illustrates the typical view we find in the law courts that actions taken in keeping with one’s immutable character do not render them involuntary (akˆon): he states, “Forgive me, since I did this akˆon and not from (i.e. not consistent with) my character.”101The tragic poets, by contrast, express a more complicated approach to the relationship between character and moral blame. In some notable instances, tragedians wres- tled with questions of the justice of punishment for inherited guilt, immutable characteristics, and actions beyond one’s control. In Sophocles’ Oedipus plays, to take the most familiar example, we meet statements on both sides of the question:
97 On the use of the defendant’s record for this purpose, see Saunders 1991b:113–118. Saunders points out that litigants sometimes use a defendant’s record not only to argue about what the defendant deserves based on his past, but also what is in the best interests of the dˆemos, for example thata wealthy defendant will continue to perform public services if acquitted. Arguments such as this contemplating a direct quid pro quo are rare, however.
98 Din. 2.8–13.
99 Din. 2.11.For other examples, see Isoc. 18.47; Lys. 20.34; 30.6; Din. 3.5, Dem. 45.63ff.
100 Saunders (1991b:116–17)points out that Demosthenes sometimes implicitly distinguishes between
“offenders who are evil by nature and those whose depravity has been acquired.” Whereas acquired
depravity may be more serious (at least for Demosthenes), litigants do not suggest that the presence of immutable bad character traits are an excuse for wrongdoing.
101 Ar. Vesp. 1001–1002.
in Oedipus the King, Oedipus, once exposed as guilty of parricide and incest, not only accepts his responsibility but even consigns himself to the unexpected self- inflicted punishment of blinding, whereas in Oedipus at Colonus he argues that he should not be blamed for acts committed in ignorance.102
It has been pointed out that character evidence in the court speeches focuses most commonly on the defendant rather than the prosecutor.103The emphasis on the defendant supports the view that the frequent citations to character in Athenian litigation are designed to assist the jury in reaching a fair verdict rather than to provide ammunition in a contest for honor between the litigants:104 the defendant’s reputation and record is part of the contextual information considered by the jury in determining whether a conviction and the resulting penalty are warranted.105
Although there are a handful of passages that suggest a non-legal purpose for the citation of character evidence – most notably, statements that the jury should acquit a defendant because he has performed expensive public services in the past and, if victorious, will continue to do so in the future106 – the bulk of the evidence suggests that the liberal use of arguments from character reflect the Athenian popular court’s highly discretionary and equitable mode of decision making.107 In sum, the prevalence of extra-legal argumentation such as information regarding the background and context of the dispute, appeals to pity, and character evidence indicates not that the courts functioned primarily as a form of social drama but
102 Soph. OC 971–982.
103 Johnstone 1999:94; Rubinstein 2000:195.
104 Johnstone (1999:96) expresses this idea in terms of the defendant using character evidence to attack
the plausibility of the prosecutor’s narrative, whereas Rubinstein (2000:218) states, “the measurement
of the defendant’s timˆe was not relative to the personal record of his prosecutor(s), but, rather, relative
to the accusations levelled against him.”
105 In fact, the instances where prosecutors do cite their public services tend to be cases involving inheritance and cases – such as assault – where the prosecutor argues that the defendant’s honor has been violated (Johnstone 1999:98–100). The prosecutor’s character is relevant to the resolution of the dispute in these types of suit because in inheritance cases it addresses whether the prosecutor deserves to own the property under the circumstances, and in assault cases it is relevant to the seriousness of the crime.
106 Is. 6.61; 7.38–42; Lys.18.20–21; 19.61; 21.25; Dem. 28.24. For discussion, see Johnstone 1999:101. Gen- eralized requests for charis on the basis of prior service and good character seem to be part of the calculation of moral desert (cf. Johnstone 1999:100–108).
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