Trial Procedures under the Republic

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Trial Procedures under the Republic

In lure Phase: Determining the Legal Issue. Broadly speaking, a private law trial took place in two parts. In the first phase, the parties appeared before the urban praetor. The praetor had nearly complete discretion to allow the case to proceed or not. If it did go forward, the praetor had to assign a judge (iudex, plural iudices) to hear the case and give a formula that summarized the issue(s) to be decided at trial. This process seems to have involved considerable negotiation among the parties and the praetor. The iudices were not state officials or even, generally, legal professionals. Instead, they were drawn from a roster of prominent citizens. In some important cases, more than one iudex was assigned to hear a given case.

Apud ludicem Phase: Deciding the Facts. The trial proper was then held before the iudex. Both sides (as well as the judge himself) were normally assisted by legal and/or oratorical professionals. The sides presented long speeches, then evidence and testimony, and there was opportunity not only for cross-examination of witnesses but also for direct argument between the advocates on either side. There were essentially no procedural or evidentiary rules, so the parties could say whatever they wished within their allotted time. The iudex had nothing to decide (no motions, no objections) until the end of the case. The decision was guided by the formula, but his was often quite vague, hence the need for assistance from jurists. Nor was there any clear statement of the burden of proof, so individual iudices were left considerable latitude. A verdict was rendered quickly, and, where necessary, specific damages were assessed by the iudex. Awards were cash sums or, in some circumstances, other property; iudices did not, broadly speaking, order performance of particular actions, such as community service.

Early Public Law Procedures. In the earliest years of Rome, public law offenses were tried by the same popular assemblies that enacted the laws. Beginning around 400 B.C.E., this clumsy procedure came largely to be displaced by special commissions of inquiry led by magistrates. Eventually, starting in 149 B.C.E., the Romans began to establish permanent courts, roughly similar to those for private law, to try these offenses. Within a few decades this practice became the norm.

Initiating Prosecutions. Here, too, the procedure began when someone brought a complaint before the urban praetor. A distinctive feature of the public procedure, however, is that this complaint did not have to come from an injured party; any free person, even a noncitizen, could in theory prosecute a violation of public law. There was no state prosecutor, so the system required private individuals to come forward. If there were more than one potential prosecutor (and assuming the praetor allowed the case to go forward), the first task of the jury was to select whoever they thought would conduct the strongest case. The jury was of variable but considerable size (roughly between twenty-five and seventy-five men), and as in the private law courts, the jurors (also called iudices) were drawn from the most prominent citizens. In addition, there was a presiding officer (quaesitor), who might be the praetor himself or his delegate. However, the absence of procedural rules made the quaesitor something of a figurehead.

The Trial Proper. As in private law cases, both sides gave speeches, followed by evidence and testimony, then confrontation. In some cases, the prosecution (but not the defense) could subpoena a limited number of witnesses. At the end of the proceedings, the jurors voted immediately and apparently without the legal assistance available to private law iudices. In general, legal technicalities seem to have been much less important in public cases than in private ones. The majority vote won.