Criminal procedure in the standing courts

As has been noted, each permanent court was established by a separate legislative enactment which also prescribed the rules of procedure governing its operation. These rules were from time to time modified by subsequent legislation.

Every case submitted to a standing court was tried before a judicial magistrate, usually a praetor or a iudex quaestionis (normally an aedile or ex-aedile),^{^[778]} and a panel of jurors (Judices) referred to as consilium. The magistrate was in charge of the proceedings while the jury's task was to decide on the question of guilt or innocence after hearing the pleadings and considering the evidence. The praetors were assigned to the different courts by lot,^{^[779]} after the senate decided which courts should be presided over by a praetor. Usually praetors were assigned to the courts dealing with offences of a political nature, such as extortion, electoral corruption, conspiracy against the state, treason and embezzlement. Aediles were usually assigned, also by lot, to cases involving murder, violence and fraud. The presiding magistrate had to swear that he would abide by the statute by which the court had been established and could be liable to punishment if found guilty of corruption.

After the passing of the lex Acilia de repetundis (122 BC), the persons who were to serve as jurors in criminal trials were chosen by the praetor at the beginning of each year.^{^[780]} Those included in the annual list of jurors (album iudicum, iudices selecti) were persons between the ages of thirty and sixty, living in Rome or the surrounding area, who had not held any magistracy up to the position of quaestor or tribune of the plebs. Senators and their closest relatives were excluded as were those who had been found guilty of offences affecting their status as Roman citizens.

The praetor was required to make the list of jurors publicly known and to swear an oath that only the best men had been chosen.href="#_ftn781" name="_ftnref781" title="">^{^[781]} As was said earlier, under Sulla jury service was transferred from the equites to the senators. The lex Aurelia of 70 BC provided that jurors were to be drawn equally from senators, equites and the tribuni aerarii (the latter probably also belonged to the equestrian class). Under the lex Pompeia, passed by Pompeius in his second consulship (55 BC), the jurors continued to be chosen from the three groups named in the lex Aurelia, but the only richest men within each group were eligible. The tribuni aerarii were excluded by a lex lulia of Caesar, passed in 46 BC. Finally, Augustus restored the three classes of the Aurelian law, and added a fourth representing the lower classes of the community.

Prosecutions were initiated by private indictment. Initially only the party directly aggrieved or his closest relatives were entitled to bring an indictment,^{^[782]} but in later years almost every citizen of good repute had the right to bring an indictment and conduct a prosecution.^{^[783]} However, as accusers were often motivated by the prospect of personal gain, the indictment procedure was often abused and, despite the possibility of a suit of slander against false accusers, some people even made a profession out of accusing rich fellow-citizens. The first step in a criminal prosecution was the postulatio, an application on the part of the citizen concerned to the praetor, or the iudex quaestionis, in charge of the court dealing with the alleged crime for permission to bring charges.^{^[784]} This was an essential preliminary, as it was possible that the applicant was precluded by law from bringing charges against any person, or against the particular person whom he intended to prosecute.

If two or more persons applied at the same time for leave to bring an indictment against the same person the question of who was to be given priority was decided by a panel of jurors after the arguments of all the parties seeking permission to prosecute had been considered (divinatio). When this was decided the accuser formally and in writing stated the name of the accused and the crime with which he was charged (nominis et criminis delatio) in the presence of the accused.^{^[785]}[786] The document containing the accusation (inscriptio) was then signed by the accuser and by all those willing to support his claim (subscriptores). Moreover, the accuser had to take an oath that he did not bring a false accusation out of malice (calumnia') or in collusion with the accused (praevaricatio)}'² The presiding magistrate then formally accepted the indictment (nominis receptio) and, from that moment, the person against whom the charge was brought became technically a defendant (reus). This was followed by the fixing of the day on which the trial was to begin, if that was not determined by the law by which the relevant court had been established. The accuser was given a reasonable time to prepare his case (inquisitio) - in most cases the minimum seems to have been ten days but in certain cases where evidence had to be gathered from overseas a longer period could be allowed.^{^[787]}[788][789][790][791] The accuser might also ask for up to forty-eight witnesses to be summoned by the praetor, although the latter was free to summon as many as he thought fit (testimonium denuntiare)™ The next step was the selection of the jurors who were to hear the charges against the accused and to pass judgement. Under the lex Acilia the jury had to be empanelled and the advocates appointed immediately after the nominis delatio. But this exposed the jurors to the dangers of intimidation and corruption and for that reason, after the judicial reforms of Sulla, juries were empanelled after the inquisitio and shortly before the day on which the trial was to begin.

Consisting of several dozen members, in individual cases up to seventy-five, the jury was chosen for each case by lot (iudicum sortitio) from the relevant album iudicum}'⁵ After the required number of jurors had been selected in this way both parties were given the opportunity to disallow a certain number of jurors whom they suspected of being biased against them (iudicum reiectio).²'⁶ After the iudicum reiectio the presiding magistrate replaced the disqualified jurors by drawing more names from the album iudicum (iudicum subsortitio)}¹² After their selection the jurors were sworn in.

During the trial it was the accuser and the accused who dominated the scene, with their advocates and witnesses engaged in what were often very rancorous cross-examinations.^{^[792]} The jurors listened in silence and were forbidden to speak to each other, while the presiding magistrate was responsible for the orderly progress of the proceedings. The trial began with the accuser delivering a speech in which he detailed the charges and set out his arguments. The accused's reply then followed. The accused stood in a particularly strong position, as he was entitled to as many as six advocates and was allowed twice the total speaking time allocated to the prosecution. The accuser then introduced his evidence, to be followed by that of the defendant. The evidence could be oral by witnesses (testes), documentary, or mixed. Witnesses testified under oath and were examined by their own side and cross-examined by the other. Witnesses for the defence were often invited to speak not only about facts but also about the accused's character.^{^[793]} In the category of documentary evidence fell records of various kinds, such as account books (tabulae accepti et expensi), letters (epistolae), written notices (libelli) and, in some cases, the account books of those entrusted with the collection of public revenues (publicani, tabulae publicanorum).

The prosecuting party was entitled to enforce, if necessary, the production of certain documents. Following their delivery, these materials were sealed up (obsignatae) in front of witnesses (obsignatores) and handed over to the presiding magistrate who alone could reveal their contents in court. The written evidence also included the statements of witnesses who, for various reasons (ill health, old age, absence from Rome etc.) were unable to appear in court in person,^{^[794]} as well as certain public statements relating to the case issued by state organs (testimonia publica).

After all the evidence had been presented and the closing speeches delivered the presiding magistrate convened the jury (mittere iudices in consilium) and put the question of guilt or innocence of the accused to the vote. In early times the vote was open but, following the enactment of the lex Cassia in 137 BC, the outcome of the trial was determined by secret ballot (per tabellas).²²' Each juror was given a small wax covered tablet marked on one side 'A' (absolvo) and on the other 'C (condemno). He then erased one or the other and cast the tablet into an urn (sitelid). Jurors had also the third choice of *NL' (not liquet', not proven) if they were unable to reach a decision.^{^[795]}[796][797][798] The outcome of the case was determined by the majority of the votes. If there was a majority of 'C's the accused was pronounced guilty by the presiding magistrate; if the 'A's were in the majority, or if there was an equality of votes, he was pronounced not guilty. If the majority of the jurors voted 'non liquet' the presiding magistrate announced that a more thorough investigation into the case was necessary and fixed a day for a new hearing (ampliatio) ^222.

The procedure that was followed in trials for extortion (de rebus repetundis) was somewhat different from the one described above.

After the enactment of the lex Servilia Glauciae (c. 101 BC) criminal proceedings in cases of this nature were divided into two distinct parts (comperendinatio)²²^ In the first part (actioprima) the prosecution and the defence presented their cases before the court and witnesses on both sides were called upon to testify. In the second part (actio secunda), which began after a day's interval, a second hearing took place during which the parties had the opportunity to comment on the evidence presented and to supply additional information. After the conclusion of this hearing the jury was invited to give their verdict which now took the form of'guilty' or 'innocent' only (the 'not proven' option was not available in such cases).

class=a4 style='text-indent:18.0pt'>The punishments imposed by the standing courts were set down in the statutes governing these courts at different times and followed automatically upon conviction (neither the presiding magistrate nor the jury had any discretion as to the penalty).^{^[799]} In general, they were of two kinds: capital punishments and monetary penalties.^{^[800]} Although during the later Republic many crimes falling within the jurisdiction of the standing courts were punishable by death (poena mortis), this penalty very rarely applied in practice as the accused was usually allowed to leave the city before the sentence was pronounced.^{^[801]} In these cases an aquae et ignis interdictio was pronounced by the senate or a high magistrate after the culprit's departure. In practice, this entailed banishment accompanied by the loss of citizenship and property.^{^[802]} If the person subject to an aquae et ignis interdictio returned without permission he was deprived of legal protection and, in theory at least, could be put to death by anyone. If an accused was found guilty of extortion, embezzlement and similar offences the usual penalty was restitution. Sometimes, depending on the statute under which the charge was brought, the culprit could be forced to return double or more the amount of property he had illegally appropriated. The precise amount of compensation was determined by the jury after a verdict of guilty had been returned (litis aestimatio). Imprisonment was not recognised as a penalty under the standing court system.^{^[803]} Irrespective of the gravity of the punishment imposed, no appeal against a verdict or sentence was possible, although it is likely that tribunician intercessio could be raised against the presiding magistrate's actions during the preliminary phase of the proceedings.^{^[804]} However, the comitia reserved the right to grant pardon to a convicted person by a legislative act.^{^[805]}

<< | >>

↑

Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

Criminal procedure in the standing courts

More on the topic Criminal procedure in the standing courts: