How a Criminal Trial was Conducted in the Time of Cicero

At the time of Cicero there were at least eight permanent courts (quaestiones perpetuae), each dealing with different types of offence (e.g.) extortion, treason, embezzlement, violence, murder, adultery, forgery). Each court was presided over by a praetor, or his representative.

Strangely, from our point of view, prosecutions were not undertaken by the state: there were no public prosecutors. Any man (but no woman) was entitled to begin a prosecution, and the state made it worthwhile by rewarding such a person with money or honours. But if the prosecution was unsuccessful, he ran the risk of being prosecuted himself by the man he had accused.

The first step was a request for permission to prosecute. Sometimes several men came forward as accusers and they had to make speeches, under a process called divination, so that it could be decided who was best fitted to be the prosecutor. When the Sicilians wanted their corrupt governor Verres prosecuted after his term of office, they asked Cicero to plead the case. Cicero was eager to do so, but so also (for dubious motives) was another man, Q. Caecilius Niger. A preliminary hearing was, therefore, held, and we still have a published version of the speech Cicero made (Divinatio in Q. Caecilium). Cicero was preferred and the court did not even admit the other man’s claim to assist as junior counsel.

After certain formalities the praetor then examined the accused (reus). If he did not plead guilty for clearly prove his innocence, the praetor fixed the date of the trial. The earliest date was in 10 days time, but it could be as late as 100 days ahead. On the day of the trial, the jury (iudices) was chosen by lot and prosecutor and defendant could make objections to any of them. Until 122B.C. only Senators could be jurymen. There was then a period when the privilege was that of the class known as Knights (equites). It was restored to Senators in 80 B.C. and in 70 B.C. it was shared equally by senators, knights and another income group called tribuni aearii. This last group was later excluded by Julius Caesar. The function of the iudices was to give verdicts on question of fact. Corruption of members of a jury was not uncommon.

When the trial began, the prosecutor delivered his first oration, followed by his junior counsel. It was then the turn of the accused and his counsel. A time limit was put upon the speeches, the defence being allowed longer than the prosecution. Evidence was then produced and witnesses heard. The evidence of slaves was not usually allowed unless it was given under torture.

The jury then cast their votes on the question of the innocence or guilt of the defendant. The usual practice was to record the votes on tablets which were thrown into an urn. If the votes were equal, or in favour of the defendant, he was acquitted. There could be no appeal against the verdict. The usual penalties were fines, loss of citizenship or exile.