The Criminal Justice Process

After the disappearance of the standing jury courts (quaestiones perpetuae) in the third century ad, the cognitio extraordinaria emerged as the regular procedure for criminal trials.

Nevertheless, many rules of the old statutes that instituted the quaestiones perpetuae and clarified particular offence categories were still deemed relatively authoritative.

In most cases, criminal proceedings were set in motion by a public prosecution conducted by a judicial magistrate. Proceedings by accusatio,^{^[554]} where the prosecution was conducted by any competent member of the public, were still feasible.^{^[555]} However, these proceedings were now rare due to the high risks they entailed for the accuser (if the prosecution was unsuccessful the accuser faced the same punishment that the accused would have suffered, if convicted).^{^[556]} Proceedings by cognitio were instigated in one of three ways: (a) following a report by a minor official (e.g. a municipal officer) charged with security duties; (b) following a denunciation by the injured party or a private informer; and (c) at the initiative of a judicial magistrate. In the first case, the official who lodged an incriminating report had to appear in court to present the case against the accused. To some extent, his role corresponded to that of a private accuser in the accusatio proceedings. Like a private accuser, an official who laid a charge was liable to punishment if the trial did not entail the conviction of the accused; however, unlike a private accuser, he was only liable if he had initiated a false accusation knowingly and maliciously. In the second case, a private citizen informally denounced another to a judicial magistrate. The latter was obliged to act on such denunciation and to officially institute and conduct criminal proceedings against the suspect.^{^[557]} The denouncer did not play a formal role during the trial, and could not be prosecuted if the charge was unsubstantiated.^{^[558]} In the third case, an official vested with judicial functions initiated the collection of incriminating information and launched criminal charges against those detected as offenders by his agents.

In the cognitio proceedings, the judge at his discretion determined the date of the trial.^{^[559]} Once the trial date was established, the judge had a duty to summon the accused (this could be done either by personal notice or by edictal citation) and arraign all the witnesses required to testify in the case.

In the majority of cases (especially those involving offences of a serious nature), the alleged offender would be detained in a state prison^{^[560]} and could languish there for months waiting for the commencement of his trial.^{^[561]} At the hearing, the officer who reported the crime to the judicial magistrate was required to appear before the court and elaborate the matter, in a similar manner as an accuser addressed the court at the beginning of an accusatorial hearing. The remainder of the hearing also essentially corresponded to the equivalent stages of an accusatio trial, although the inquisitorial element was more pronounced than in the latter. On the other hand, when the prosecution was galvanised by information supplied by private denunciators or reports submitted by agents of the judicial magistrate, the hearing would essentially have comprised a purely inquisitorial interrogation of the accused and an examination of the available evidence. But the judge had the discretion to select the manner of these details. The judge was only constrained by the rules relating to the collection and submission of evidence.^{^[562]} It was recognized that a suspect could only be sentenced if the court was convinced of his culpability; if uncertainty predominated, the suspect was granted the benefit of doubt and absolved with a release from all restraints. A suspect’s confession was deemed to constitute conclusive proof of guilt, and judges were not allowed to pass a death sentence unless the suspect had confessed or the witnesses were unanimous in identifying him as the wrongdoer. In these circumstances, judges were tempted to use torture in a limitless manner to extract concordant evidence or, best of all, a confession during interrogation^{^[563]} when the accused or the witnesses belonged to the lower classes (humiliores).^{^[564]}

After weighing the presented evidence, the judge announced his verdict that either declared the accused guilty or absolved him of the crime.

If the accused was convicted, the judge proceeded to determine the punishment to be imposed and the trial procedure ended with the passing of the sentence.^{^[565]} The law stipulated the penalties that a judge could impose. Once the judge determined that the accused’s conduct conformed with the description of the relevant crime, he was obliged to impose the prescribed punishment regardless of any mitigating or aggravating circumstances.

As regards the available forms of punishment, the position was not ostensibly different from that in the later years of the Principate. However, the penalties now imposed were generally harsher than those in earlier times. The most severe punishment in Roman criminal law was the death penalty (poena mortis). As a rule, condemned criminals were executed in public immediately after the passing of the sentence if no appeal was lodged.^{^[566]} This usually occurred in the locality where the crime had been committed. There were four general forms of execution that the sentencing judge could impose. The most lenient of these forms was decapitation by the sword (decollatio, capitis amputatio). The remaining three forms of execution were the aggravated ones: garotting (ad furcam, patibulum damnatio), death at the stake (vivi crematio) and execution at the public games.^{^[567]} Other severe forms of punishment included forced labour in the mines (ad metalla)^{^[568]}; gladiatorial combat (ad ludum)^{^[569]}; forced labour in the public works (opus publicum) for life^{^[570]}; and deportation (deportatio).^{^[571]} The less severe, non-capital punishments embraced banishment without loss of citizenship (relegatio)^{^[572]}; forced labour in the public works for a fixed term; confiscation of property^{^[573]}; corporal punishment^{^[574]}; and fines (multae).

Incarceration was not recognized as a regular form of punishment; as in earlier times, the sole function of a prison was to secure temporarily those persons awaiting trial, or convicted criminals anticipating the execution of a severe sentence.^{^[575]} A judge had to contemplate certain factors when selecting the form of prescribed sentence to impose (e.g. the death penalty or another capital punishment) or determining the appropriate penalty in exceptional cases where his discretion governed the sentence. The essential factors encompassed whether the convicted person had a free or servile status and, in the former case, the offender’s social class. Generally, a servile status and inferior social status operated as aggravating factors.^{^[576]} On the other hand, persons with a higher rank (honestiores) enjoyed certain penal privileges: they were not sentenced to death by garrotting or at a public game, nor condemned to the mines or subjected to flagellation or forced labour in the public works. Aggravating factors embraced transgression in office, the high incidence of the crime at issue in a particular area, and recidivism. On the other hand, the facts that the offender was youthful, a minor participant in the crime and a slave who committed the offence on the order of his master all served as mitigating factors.

4.5.3

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

The Criminal Justice Process

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