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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.53 It 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 surviving 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 From a 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.55 The 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.

53O’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.

54Two 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.

55For discussion see Brown 2002.

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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 was a fair result given all of the circumstances, including the severity of the likely

56E.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.

57Johnstone 1999:113.

58Appeals 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.

59Konstan 2000:133ff.

60Konstan 2000:136.

61Konstan 2000:138.

62E.g., Dem. 28.18–19; Lys. 19.45.

EXTRA-LEGAL ARGUMENTATION 55

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

63For a list of actions that had fixed penalties and those that were determined in a sentencing hearing see Harrison 1998:80–82.

64Is. 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.

65Some 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.

66Isoc. 20.19; Dem. 56.43–44; 58.19. For discussion, see Todd 1993:134–135.

67E.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.

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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 criticize 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

68Lys. 15.9.

69Green 1985:xviii. On modern debates over jury nullification, see Noah 2001; Pettys 2001; Liepold 1996; Butler 1995.

70Lys. 19.33; 21.24–25; Dem. 28.19.

71Lys. 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.

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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

72Isoc. 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.

73In a seminal article, Robert Cover (1986) discussed the concept of “law’s violence” – the threat of violence 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.

74Apophasis, 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.

75For discussion of the composition of the Areopagus, see Chapter 4.

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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 upholding 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:

76Din. 1.84. See also Din. 2.6.

77The 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.”

78Hyp. 5.6. De Bruyn (1995:143–144) suggests that the Areopagus’ report would generally include more information than was given in the Harpalus case.

79Din. 1.55.