Dēmos · Classical Athenian Democracy · a Stoa Publication
Michael Gagarin, edition of March 27, 2003
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Plot on a Map
Now, I am not trying to argue that the Athenians dealt with homicide cases in exactly the same way as we do today. Many cases today are decided almost entirely on scientific evidence, though as we develop ever more precise methods of testing evidence, we are continually reminded that the scientific methods thought to be conclusive in the past have at times resulted in false convictions. Nonetheless, we rely much more than the Athenians on hard evidence. In Athens, unless a killer was caught in the act or seen by eye witnesses, or confessed to the crime, one could only make a case based on circumstantial evidence, in particular motive and opportunity. Thus stories tend to have a more prominent role in Athenian homicide cases than they do today; in Athens more depended on the litigant’s effectiveness as a speaker who could tell a plausible story with believable characters.
For this reason many litigants hired an expert speechwriter (logographos), whose task was to create a story that not only was effective but that also fit the character of the speaker for whom it was written. Antiphon, who invented the art of logography (probably around
In general, then, Athenian homicide cases are more dependent on effective story telling and character portrayal than are cases today, though the difference is more one of degree than of kind, and all trial attorneys today understand the continuing importance of these two features, especially (but not only) in jury trials. But differences in kind can have important effects, especially on people’s perceptions of and attitudes toward the law. Although trial lawyers today understand the importance of storytelling and character portrayal, most people today think of these elements as largely outside the proper purview of the law, which they think of as autonomous, objective, and even scientific. Our legal system gives a large role to judges, who are seen as the protectors and enforcers of this objective legal autonomy. Even judges, of course, can be swayed by extra-legal factors, as has become especially clear in the number of sharply divided opinions handed down recently by US appeals courts, including the Supreme Court. But despite such evidence, we still want to think of our legal system as insulated from rhetorical, political, religious, ideological and other non-legal elements, and the general reaction to the acquittal of O.J. Simpson was thus a sense of outrage and widespread condemnation, focused especially on the alleged irrelevancy of the defense’s story of racism. Indeed, the question of relevance exemplifies the tensions in our system: we want to treat the question of relevance as an objective one and we leave it to judges to decide, though there is often no clear objective criterion for deciding this question.
Though they may not have put it in writing, the Athenians also had a rule of relevancy that was stricter for homicide cases than for others, as litigants sometimes remind the jury. Like us, they acknowledged the importance of their laws and their legal system, and especially in homicide cases they stressed that the verdict should be rendered only on the facts of the case—was the accused guilty or innocent? But the different material conditions of their day and the common lack of hard evidence of any sort, meant that they had to rely more on circumstantial evidence and could not enforce such strict standards as we try (at least) to enforce. The question of relevancy was left to each litigant to decide for himself, with only the jury’s verdict as the ultimate judge of whether he had violated the rule. Standards of proof could not be as rigorous as our “beyond reasonable doubt” or it would have been impossible to convict anyone of homicide except those who confessed to it. There was no authoritative statement of a standard of proof in Athenian cases, but juries seem to have relied on a standard that was rather similar to the “preponderance of evidence” standard that we commonly use in civil cases. And of course with 200 or more jurors, a unanimous verdict would have been virtually impossible to obtain in any case, and it was perhaps not unreasonable to make verdicts the result of a majority decision.
Athenian homicide law was thus less rigorous than our own in many ways, and people’s expectations differed accordingly. But despite these differences, the Athenian legal system, particularly with regard to homicide, shared the same general goals and used many of the same methods as our own law.
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