Stephen James Hughes
Drawing upon evidence from the corpus of forensic oratory, this paper argues that juries in democratic Athens were responsible not only for determining the facts of each case, but also for deciding the evidentiary basis upon which any disputes as to the facts should be resolved. Because Athenian juries enjoyed significant discretion, a litigant could debate the parameters of their decision-making and promote an epistemological framework more conducive to his case. The litigants of the speeches adduce various considerations in favour of a higher or lower quantum of evidence, from variations in the volume or type of evidence available to disparities in the consequences of judicial mistakes of fact. Collectively such arguments imply that Athenian jurors were sensitive to the trade-off between empowering litigants and preserving the factual integrity of the city’s judicial decisions. In this respect, jurors not only interpreted and applied the law (as argued by e.g. Wolff 1963, Meyer-Laurin 1965, Meinecke 1971; also Sealey 1982, Thür 2008, Harris 1994, 2004, 2013a, 2013b) but also participated in a form of political decision-making, as they weighed the costs and benefits of different evidentiary regimes and allocated the risks associated with litigation.
The first part of this paper discusses the flexibility with which Athenian jurors approached determinations of fact. While Athenian statutes were generally attentive to aspects of procedure, their provisions here were usually limited to the method of bringing a suit. At trial the jurors instead were guided by their oath, which bound them simply to vote “according to the laws” (κατὰ τοὺς νόμους) and to use their “most just understanding” (γνώμῃ τῇ δικαιοτάτῃ) “concerning any matters about which there were no laws” (περὶ δ’ ὧν ἄν νόμοι μὴ ὦσι). The latter provision potentially extended to questions of fact (Mirhady 2007), but an Athenian court was nevertheless distinct from its modern counterpart, in which a specific evidentiary standard is not only fixed from the outset but also reinforced by the instructions of the presiding judge.
The bulk of the paper analyses the various arguments that litigants advance in favour of different evidentiary regimes. In several cases the plaintiff requests a lower threshold of evidence on the grounds that the defendant has worked to conceal his wrongdoing (Antiph. 2.1.1-2, 2.3.8, 6.18). This line of argument sometimes incorporates a public policy dimension, with plaintiffs highlighting the risk to society if dangerous criminals are able to evade punishment (Antiph. 2.1.9-10, 2.3.9-10, cf. Lycurg. 1.124-7). By contrast, defendants demand a higher threshold for the prosecutor in cases for which the potential punishments are more severe (Antiph. 5.87-9, 6.3-6), while suggesting that even a modicum of exculpatory material should suffice in such instances to secure their acquittal (Lys. 4.18). Some litigants attempt to generalise an evidentiary principle by pointing to the social impossibilities of an alternative evidentiary regime (Antiph. 2.1.9, Is. 12.7, Lys. 7.23). These passages collectively illuminate the potential for policy considerations to influence how Athenian juries resolved questions of fact.