Ancient Athenian Procedural Due Process: A Reflection of Societal

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Ancient Athenian Procedural Due Process: A
Reflection of Societal Values
A legal system is the process through which disputes between
individuals and wrongs against the state are resolved.' Underlying
the entire legal order are pervasive assumptions as to how society
can control behavior and what it is that constitutes justice. 2 It follows, therefore, that any attempt to understand a legal order must
include an appreciation of all the forces which shape a society's
structure and values.3 While the aforestated principles ring true, our
myopic perception may prevent us from appreciating their veracity
if we limit our inquiry only to present day society.
As an aid to understanding the state of one's own legal system,
recourse is frequently had to the study of comparative law. 4 This
comment undertakes to compare an aspect of our legal order with
that of a system considerably more ancient. More specifically, this
comment will compare the present American conceptualization of
1. "Law is a statement of the circumstances in which the public force will be
brought to bear upon men through courts." American Banana Co. v. United Fruit
Co., 213 U.S. 347, 356 (1909). Law is intended to permanently direct and control
matters applying to persons or things in general. City of Bangor v. Inhabitants of
Etna, 140 Me. 85, 89, 34 A.2d 205, 208 (1943). "Law may be defined as the aggregate
of those rules and principles of conduct promulgated by the legislative authority
or established by local custom ...
."
State v. Central Lumber Co., 24 S.D. 136,
141, 123 N.W. 504, 508 (1909).
2. The function of law in society has many interpretations. One proposition is
that law provides the regulation and organization of social life. Law, first, maintains the social order; equality, happiness, justice are secondary goals in the administration of the law. Graveson, Philosophy and Function in Comparative Law, 7
INT'L & COMP. L.Q. 649, 650 (1958). Another conceptualization of law states that
it is one of the greatest forces of social change. Stability and change are conflicting
values which direct development through law. Roscoe Pound stated that "[l]aw
must be stable and yet it cannot stand still." R. POUND, THE PATH OF LIBERTY 1
(1950). Law must respond to changing societal relationships and therefore must be
in touch with the dynamics of social life, as exemplified by Brown v. Board of
Educ., 347 U.S. 483 (1954). See Jones, The Creative Power and Function of Law
in HistoricalPerspective, 17 VAND. L. REV. 135 (1963).
3. von Mehren, Roscoe Pound and Comparative Law, 78 HARV. L. REV. 1585,
1588-89 (1965). Pound viewed legal institutions as balancing agencies of conflicting social interests. Jones, Law and the Idea of Mankind, 62 COLUM. L. REV. 753,
759 (1962).
4. See generally R. DAVID & J. BRIERLY, MAJOR LEGAL SYSTEMS IN THE WORLD
TODAY 1-9 (1968).
486
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certain elements of procedural due process with that of Ancient
Greece. The value in referencing this discussion of Greek law to the
American due process doctrine is that it affords the reader a sense
of perspective and an appreciation for the subtleties of the Greek
system .5
Ancient Greece, more specifically Athens in the fourth century
B.C., has been chosen as the society which will be discussed below.
The reasons for this focus are: (1) Athens developed a detailed legal
structure; (2) its law is no longer developing and therefore can be
studied as a unit; (3) Greek literature incorporates references to the
legal system, is plentiful, and exalts the "critical intellect;"' (4) the
study of this ancient democracy may help in anticipating new
trends in our own legal system;' and (5) the author's personal interest in ancient law. The discussion will be limited to a number of the
procedural due process requirements of the American system as
they appeared in ancient Greek law. To present a more expanded
analysis would be beyond the scope of this paper and would provide
little more insight than do the subjects which have been chosen for
full explication.
I.
RIGHT TO JURY TRIAL
The ancient Athenian legal process was constructed about the
institution of a jury trial." Legend states that the goddess Athena
established the system of justice whereby men were tried by their
compatriots on the Areopagus or Ares' Hill.9 In The Eumenides,'0
5. A jurist should look at a system of law in a two-fold manner. First, he should
examine it historically, to grasp the peculiar nature and inner development of each
legal form. Second, the jurist should view it systematically, each rule in connection
and interaction with modem rules. Friedrich, Law and History, 14 VAND. L. REv.
1027 (1961).
6. The Greek examined the world surrounding him and sought "to discover what
the good life is and then to apply his rational knowledge to the attainment of
justice, truth, and beauty." Editor's Note to Finley, The Greek City-State in
ANCIENT CIVILIZATION: 4000 B.C.-400 A.D. 66 (1967).
7. The Greeks achieved the first "genuine political community" in western
civilization whereby Athenians became citizens by the exercise of their free choice.
Id. at 65.
8. Pharr, Solon and the Greek Legal System, 20 MERCER L. REv. 443, 445 (1969).
9. Bertoch, The Greeks Had a Jury for It, 57 A.B.A.J. 1012 (1971).
10. AESCHYLUtS, THE ORESTEIAN TRILOGY 147 (rev. P. Vellacott transl. 1959). The
Eumenides is the last play in the Oresteian trilogy. The first play, Agamemnon,
tells of how King Agamemnon returned home victorious to Argos from the Trojan
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ATHENIAN DUE PROCESS
Aeschylus expressed his approval of the institution of a jury trial.
Aeschylus contrasted two themes frequently found in Greek literature, namely the powerlessness of man to control his destiny and the
quest for revenge, with his vision of a society ruled by justice meted
out by a court of mortals." He used this comparison to show that
the attainment of justice was within human reach (and juries are
composed of mortals) and not only in the realm of the gods. In The
Eumenides, the wrongdoer, Orestes, was brought to court to be tried
by a jury of his peers. Athena vested this court with its judicial
authority:
Then, since decison falls to me, I will choose out
Jurors of homicide, for a perpetual court,
In whom I vest my judgement [sic].12
Despite the references in Greek literature and mythology to the
progenitors of a jury system, historians credit Solon with the founding of the democratic institution of the popular courts.' 3 Solon
granted the Thetes, the lowest class, membership on the ekklesia4
and on the dikasteries,'5 and thus the court system was based on a
broad popular constituency.'" The body of people sitting as a court
was called the Heliaia7 and the separate juries were called the
dikasteries.'8 The average dikastery consisted of five hundred members.' 9 Trial by jury became prevalent when in 462-461 B.C.
War only to be killed by his ambitious wife Clytemnestra and her lover, Aegisthus.
In the second play, The Libation Bearers, Agamemnon's son, Orestes, who had
grown up in exile, returned to Argos at Apollo's command to avenge his father's
death. Orestes then murdered his mother Clytemnestra and her lover Aegisthus
and fled the city pursued by the Furies. In The Eumenides, Orestes stood trial for
the murders he committed and was acquitted on the grounds of justifiable homicide.
11. Id. at 164-66.
12. Id. at 164.
13. Bertoch, supra note 9, at 1012. See also H. Krrro, THE GREEKS 101 (rev.
1957). These courts were founded c. 590 B.C.
14. The ekklesia and the boule were special tribunals which dealt with impeachment proceedings and crimes against the state. 2 A. HARRISON, THE LAW OF ATHENS
53-54 (1971) [hereinafter cited as 2 HARRISON].
15. The dikasteries were originally organized to hear cases on appeal and later
are referred to as the juries. Id. at 2-3.
16. Id. at 43-44.
17. Id. at 44.
18. Id.
19. Pharr, supra note 8, at 446.
488
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 23
Ephialtes stripped the old Areopagus of most of its power2 and
vested the majority of its former judicial functions in the dikasteries
2
and the popular courts. '
Any citizen22 over 30 years old, who was not indebted to the state
and had not lost his civil rights, was an eligible juror. 23 He presented
himself to the appropriate official and upon being accepted by the
Heliaia was given a ticket as evidence for life of his right to be a
dikast.24 The juries were chosen by tribes2 in an elaborate system
of lotteries. 2 This system was devised to guarantee an impartial
jury, to prevent fraud or impersonation, to fairly represent all ten
Athenian tribes, to assure each juror an equal chance of being chosen, and to discourage formation of cliques. 27 There was no voir dire
procedure 28 analogous to that in our federal and state courts. Athenian litigants had no means available to them to predetermine the
composition of juries; there were no preemptory challenges. 21 Annually, the Heliaia took an oath 0 which pledged each member to
20. In the fourth century B.C., the Areopagus retained its jurisdiction over (1)
cases of premeditated homicide, wounding with intent, poisoning if death resulted,
and arson; (2) various religious functions; and (3) investigation for special cases. 1
R. BONNER & G. SMITH, THE ADMINISTRATION OF JUSTICE FROM HOMER TO ARISTOTLE
363-65 (1938) [hereinafter referred to as 1 BONNER & SMITH].
21. Id. at 221. The shifting power was part of the judicial reforms of Cleisthenes,
who made the popular courts, courts of first instance. Chroust, The Legal Profession in Ancient Athens, 29 NOTRE DAME LAW. 339, 341 (1954).
22. Only Athenian-born men were granted the status of citizenship. 2 HARRISON,
supra note 14, at 205.
23. Id. at 44.
24. Id.
25. All Athenian men were divided into the traditional ten tribes which were also
used for military and administrative purposes. Id. at 45.
26. The system is summarized in Pharr, supra note 8, at 446.
27. 2 HARRISON, supra note 14, at 45-46.
28. See FED. R. CRIM. P. 24.
29. See Swain v. Alabama, 380 U.S. 202 (1965) (the prosecutor used preemptory
challenges to exclude blacks from petit jury in a case where defendant was black).
In a state where the jury fixes the penalty in a capital case, an exclusion of "all
who expressed conscientious or religious scruples against capital punishment and
all who opposed it in principle" did not create an impartial jury. Witherspoon v.
Illinois, 391 U.S. 510, 520 (1968).
30. There were two types of oaths, promissory and evidentiary. The former was
an oath taken to assure that something will or will not happen; the latter was to
confirm that something had or had not happened. The oath taken by the Heliaia
was promissory in nature. 2
FROM HOMER TO ARISTOTLE
R. BONNER & G. SMITH, THE ADMINISTRATION OF JUSTICE
146 (1930) [hereinafter cited as 2 BONNER & SMITH].
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ATHENIAN DUE PROCESS
vote according to the laws of Athens, to uphold justice without fear
and without bribery, and to listen impartially to all the evidence.3
The gods were witnesses to the oath and were thought to cast a curse
upon those who violated their oaths. 32 The jury system, as it has
been described above, persisted until the end of the Peloponnesian
War, c. 404 B.C. 3
The Athenian legal system was premised on the assumption that
power should be vested with the people and hence the jury was
designed to protect popular interests. The Greeks viewed the polis
or city-state as the center of a man's life.3 4 From it they derived
social, economic, moral, intellectual, and aesthetic enrichment; it
was the focus of their life and community.3 5 Consequently, an injured party sought his redress from the polis-which was represented vicariously by the popular courts.36 It is not surprising that
the word polis has taken on the meaning "people" in actual distinction from its original meaning "state. 31 7 There was, as a result of the
vesting of power with the people, little delegation of authority to
officials other than magistrates or special administrators charged
with specific responsibilities.3 8 In the classical period, these officials
could impose limited monetary penalties; more stringent fines could
3
only be imposed if the case were referred to a dikastery. 1
That it was not one person, or one goddess, who would administer
justice but the people who tried the issue at bar and determined the
verdict was illustrated, as we have seen, in Aeschylus' The
Eumenides. 0 Moreover, Jocasta, in Oedipus Rex, referred to the
polis as the body which had heard the slave say that a brigand killed
the former King Laius.4 ' Polis here was not used in a political conSee 3 SOPHOCLES, THE ANTIGONE 61 (2d ed. R. Jebb transl. 1891), wherein the
messenger volunteered to swear to the truth of his story as an example of an
evidentiary oath.
31. 2 HARRISON, supra note 14, at 48.
32. 2 BONNER & SMITH, supra note 30, at 152-54.
33. 1 BONNER & SMITH, supra note 20, at 365.
34. KiTro, supra note 13, at 11.
35. Id. at 75.
36. Id. at 72.
37. Id.
38. 2 HARRISON, supra note 14, passim.
39. Id. at 4.
40. See text & accompanying notes 8-12 supra.
41. SOPHOCLES, OEDIPUS TYRANNUS 45 (4th ed. H. Crosby transl. 1857). Sophocles,
in Oedipus, retells the story of how Oedipus failed to escape what the gods had preordained.
THE AMERICAN UNIVERSITY LAW REVIEW
(Vol. 23
text; it was the embodiment of the whole people. The search for
justice stemmed from the polis and was to be found in the polis.2
This attitude was manifested in the jury trial system. The juries
were large, often numbering over five hundred. 3 The private affairs
of a litigant were the public affairs of the polis-adjudicated by the
public courts. Private
vengeance and self-help took a back seat to
"public" justice.4 4 There was a unity of state and society.45
In many respects juries serve similar functions in our society. The
sixth and seventh amendments to the United States Constitution
guarantee the right of trial by jury in both civil and criminal cases."
4 7 recognized trial by
The Supreme Court, in Duncan v. Louisiana,
jury in a criminal case as a fundamental right in the administration
of justice and, therefore, ". . . must be recognized by the States as
part of their obligation to extend due process of law to all persons
within their jurisdiction."4 This right is a protection against arbitrary action of public figures-of a judge too responsive to his superiors, of a corrupt or career-climbing prosecutor.49 Both the Athenian and the American systems used the institution of a jury trial
by a man's peers as a check against the arbitrary enforcement of the
laws. While the United States recognized the privilege of an accused
in a criminal proceeding to waive this right, this waiver was unheard
of in Athens. 0 Nevertheless, the Supreme Court has stated that
42. K'rro, supra note 13, at 72.
43. See text accompanying note 19 supra.
44. Krrro, supra note 13, at 77. To this extent, Aeschylus' vision is realized. See
text accompanying note 11 supra.
45. V. EHRENBERG, THE GREEK STATE 89 (2d ed. 1969).
46. The right in civil proceedings is somewhat limited by the language of the
seventh amendment to only those cases where such right existed at common law.
Consequently, the historical test developed. In Beacon Theatres, Inc. v. Westover,
359 U.S. 500 (1959), the Supreme Court dealt with the issue of whether the defendant had a right to a jury trial if the cause of action was based upon the Declaratory
Judgment Act and the defendant's counter-claims were legal. The case stands for
the principle that there is "no constitutional barrier to legislative or judicial extension of jury trial to issues which were formerly equitable." F. JAMES, JR., CIVIL
PROCEDURE
339 (1965).
47. Duncan v. Louisiana, 391 U.S. 145 (1968).
48. Id. at 154.
49. Id. at 156.
50. There were no Athenian professional judges to try a case. Aside from any
administrative functions, the jury was the trier of both questions of law and fact.
The dikasts looked to the speaker and/or litigant for the law and the facts. The
witnesses only corroborated the former's statements. Consequently, there could be
1973J
ATHENIAN DUE PROCESS
''petty" crimes which carry a lesser penalty are not subject to the
protection of the sixth amendment.' In contrast, if a lesser penalty
were imposed by an Athenian magistrate and the opposing litigant
were unsatisfied, he could appeal the decision to a dikastery and
52
maintain his right to a jury trial.
The jury system of ancient Greece, much as ours today, was the
focus of contemporaneous intellectual criticism by those who were
subject to the prevailing order. Plato's views of the system in Athens
have been preserved for us and shed light on the principles which
underlay various institutions. Plato stated, "In the judgment of
offences against the state, the people ought to participate, for when
anyone wrongs the state all are wronged, . . . [a]nd in private
suits, too, as far as is possible, all should have a share . . .,.
However, in setting up his ideal state Plato would not leave the
administration of justice in the hands of the butchers, bakers, and
candlestick makers who would ordinarily compose the jury. Rather,
law and government would be administered by the philosopher-king
'who would be the ideal synthesis of thought and action-with the
divine element of reason supreme over the rest of human nature. 4
Plato recognized that such a man would never be welcomed in a
democratic society such as Athens because corruption and power are
the motivating influence upon human nature. Men like Socrates
who tried to reason with the masses were powerless, their natural
gifts of thought and reason shunned.5 Plato concluded that the only
way to establish the "Republic" was by reformation of the society
at the hands of the philosopher-king, or enlightened despot.56 Reeducation would be the means by which to achieve the Platonic
concept of the polis. Plato was cognizant of the problems which
barred implementation of his ideal. The power which was vested in
the people by means of the jury served to prevent rule by an enlightened despot as Plato felt was required.5 1 Plato appears to be a disno substitution for the jury and could be no waiver of the jury trial. 2 BONNER &
SMITH, supra note 30, at 123.
51. 391 U.S. at 159. No offense is considered "petty" if possible imprisonment
is for more than six months. Baldwin v. New York, 399 U.S. 66, 69 (1970).
52. See text & accompanying notes 173-78 infra.
53. 4 PLATO, DIALOGUES 335-36 (4th ed. B. Jowett transl. 1953).
54. PLATO, THE REPUBLIC 175-79 (F. Cornford transl. 1945).
55. T. SINCLAIR, A HISTORY OF GREEK POLITICAL THOUGHT 84-86, 92-95 (2d ed.
1967).
56. PLATO, THE REPUBLIC 205-210 (F. Cornford transl. 1945).
57. Plato criticized the jury system because he felt that justice was not always
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senting voice among those who advocate that the people govern for
the good of all.
IH. RIGHT TO COUNSEL
The role of counsel in ancient Greece was quite different from that
in our society. In the beginning of the development of the Athenian
legal system, citizens were encouraged to tend their own needs and
public policy was against professional counsel.-" Only women and
non-citizens59 were required to be represented in court because they
were considered incompetents." However, as the court system grew
in scope and prominence and as procedural requirements increased,
a group of professional teachers and speechwriters sprang up and
began representing litigants. The juries were often swayed by emotional pleas6 and, therefore, a well organized and directed oratory
helped the litigant win his case. Needless to say, trained orators or
speechwriters enhanced a litigant's chances and the old practice of
pleading one's own case was gradually abandoned.2 Legal assistance was manifested in three forms: (1) the logographer; (2) the
synegoros; and (3) the syndic.6 3 The logographerprobably appeared
first. He wrote the speech which the litigant presented on his own
behalf, preserving by this method the early concept of selfrepresentation. The logographerwas the "ghost-writer." In contrast,
both the synegoros and the syndic spoke for the litigant during the
trial proceedings. The syndic let the party first speak for himself
and then presented the plea to the jury; the synegoros spoke entirely
for the litigant.64
reached. He was not alone in recognizing that the system was not functioning as
planned. Aristophanes, in The Wasps, stated that the officials maintained low
wages for the jurors so the rest could go into their own pockets. ARISTOPHANES, The
Wasps in THE FIVE COMEDIES OF ARISTOPHANES 215, 245 (B. Rogers transl. 1955).
Aristophanes satirized the types of cases which came before the dikasteries. He
portrayed a mock trial of a man in the protagonist's household accused of embezzling some cheese and eating it. Id. at 248.
58. Chroust, supra note 21, at 341.
59. E.g., released slaves, aliens and slaves. 1 BONNER & SMITH, supra note 20, at
319.
60. 2 HARRISON, supra note 14, at 82-85. See also Bertoch, supra note 9, at 1013.
61. Chroust, supra note 21, at 344.
62. Id. at 344-45.
63. Id. at 345.
64. Chroust states that it is difficult to distinguish between the synegori and the
syndics. Id. at 351. Harrison states that the synegori were the prosecutors for cases
19731
ATHENIAN DUE PROCESS
While there were no bar associations as exist today,65 there were
"clubs" or fraternities which existed as further sources of legal assistance or political backing. They operated in two ways. Either the
members of a club would gather information concerning an opponent of one of its members or one member would actually represent
another. The "attorney" would explain to the jury that because of
the close fraternal relationship, he and the litigant were fully acquainted and this explanation would rebut the old presumption that
he who did not speak in his own behalf had little to say.
Although there was a general aversion and distrust of lawyers,
the system recognized a need for "state's-attorneys" to administer
the law efficiently and fulfill the prosecutorial role.68 Therefore,
Solon enacted a statute in 594 B.C. which enabled any citizen to
bring a suit into the court in the name of Athens.69 This encouraged
prosecution to enforce Solon's newly enacted legislation.7 0 However,
it also coupled litigation with politics to such an extent that, "Litigation was the handmaiden to politics." 7 ' Thus politically ambitious men sought to enhance their careers in the arena of the court
system.72 Solon's original statute prohibited the use of the same
person as a state's-attorney for more than one case to encourage
wide participation and to foster civic mindedness.7 3 But the masses
were not competent to perform this delegated function and frequently the same persons were employed by the city.74 Solon desired
that each citizen take an active role in public affairs so that ultimately "the real power of the absolutely sovereign Athenian people
lay not in the popular assembly, but in the popular courts."' 5 This
dream never materialized.
By the last quarter of the fifth century B.C. a legal representative
brought against magistrates, priests, and other officials for improper "financial"
conduct. 2 HARRISON, supra note 14, at 28-31. See also 2 BONNER & SMITH, supra
note 30, at 35-36.
65. Bertoch, supra note 9, at 1013.
66. Chroust, supra note 21, at 352.
67. Id. at 360.
68. Id. at 361.
69. Id. at 364.
70. 2 BONNER & SMITH, supra note 30, at 25-26.
71. Id. at 43.
72. Id.
73. Chroust, supra note 21, at 358.
74. Id.
75. Id. at 379.
494
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or speechwriter was paid for his services. 6 In 403 B.C., in response
to this practice, a statute was passed which forbade compensation
for advocates. 77 Fees for legal services were identified with (1) bribery; (2) unfair advantages afforded the rich; and (3) a departure
from the democratic theory of mutual helpfulness among the citi78
zens.
Of the many excellent features of democracy which one is more in
keeping with the democratic spirit than the custom of allowing anyone who wishes to go to the aid of an inexperienced man who is
involved in dangers and is unable to defend himself adequately?"
It appears that advocacy was accepted and integrated into the Athenian legal system but as a pro bono activity. The paid attorney was
viewed as an extortionist, an informer, a common scoundrel-not as
a defender of the public welfare."
Of course, we no longer regard the paid attorney with such opprobrium; burgeoning enrollments in law schools bear witness to this
changed attitude. Because in ancient Greece counsel was often uncompensated, it followed that counsel would be available to more
people, irrespective of their ability to pay in both civil and criminal
proceedings. By contrast, it took several key pronouncements by the
Supreme Court to effectively expand the sixth amendment right to
assistance of counsel to the accused in a criminal case.
[R]eason and reflection require us to recognize that in our adversary
system of criminal justice, any person hauled into court, who is too
poor to hire a lawyer, cannot be assured a fair trial unless counsel is
provided for him'
76. Id. at 353.
77. Id. The statute was probably a reaction by the people after the restoration
of the democracy after a short-lived oligarchic interlude. The existing legal profession was accused of playing a major role in the overthrow of the democracy c. 411
B.C. Similar popular reactions against the legal profession occurred after the
French Revolution and the Russian Revolution of 1917. Id.
78. Id. See also 2 BONNER & SMITH, supra note 30, at 10-11. Another possible
objection to paying attorneys was that the Athenian people envisioned themselves
as the sovereign who should deal directly with the competing parties in the issue
at hand. They did not want to go through a "bribed" agent. Chroust, supra note
21, at 354.
79. 2 BONNER & SMITH, supranote 30, at 13. This statement was made by Demosthenes, who was said to be one of the most renowned forensic speech-makers of his
time. 1 BONNER & SMITH, supra note 20, at 355.
80. Chroust, supra note 21, at 366.
81. Gideon v. Wainwright, 372 U.S. 335, 344 (1963). Defendant was accused of
19731
ATHENIAN DUE PROCESS
The Court viewed legal counsel in a criminal proceeding as a necessity, evidenced by the fact that both the government and more affluent defendants hire attorneys to present their cases to the court. 2
The rationale is that each defendant stands equal before the court
and should not be placed at a disadvantage because of his pecuniary
position. Gideon v. Wainwright83 is the hallmark case in which the
Supreme Court extended this right to state proceedings. In
Argersinger v. Hamlin,81 the Supreme Court expanded the right to
counsel even further and held that this right applies in either a
felony or misdemeanor case where the accused may be sentenced
and thereby be deprived of his liberty. The American system does
not shun the prospect of one representing and aiding another in a
courtroom. Both systems have recognized the dilemma faced by the
indigent. The American system places a duty upon the court to
appoint counsel; the Athenians tried to eliminate entirely compensation for services rendered by attorneys.
The American right to counsel exists at trial and at all critical
stages before the actual courtroom trial proceeding. However, the
line-up or identification process conducted before the accused becomes the subject of prosecution, by indictment or otherwise, does
not fall within the penumbra of the sixth amendment.85 Ancient
Athens utilized its legal profession only at the trial stage.
Aristophanes, who lived during the last half of the fifth century
B.C., derided the legal profession of his day. In The Wasps, he spoke
of the collusion between the "attorneys" as the unsuspecting jurors
sat back and were used.
Yet come as late as he choses himself, he pockets his drachma,
"Counsel's fee."
And then if a culprit gives him a bribe, he gets his fellow the job to
share,
And into each other's hands they play, and manage together the suit
to square.
breaking and entering a poolroom with intent to commit a misdemeanor. Under
Florida law, this offense was a felony. Defendant petitioned the court to appoint
counsel but was denied his request on the grounds that the court would appoint
counsel only if the crime alleged was a capital offense. Defendant was convicted.
82. Id.
83. Gideon v. Wainwright, 372 U.S. 335 (1963).
84. Argersinger v. Hamlin, 407 U.S. 25 (1972).
85. Kirby v. Illinois, 406 U.S. 682 (1972). See generally 1 C. ANTEAU, MODERN
CONSTITUTIONAL LAW 318-31 (1969).
496
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 23
Just like two men at a saw they work, and one keeps pulling, and one
gives way,
While you at the Treasurer stare and gape, and never observe the
tricks they play. 6
In The Clouds, Aristophanes again satirized the legal profession and
based his play on an unseemly character who was indebted to many
creditors yet wanted to free himself of his obligations. Consequently
he enrolled himself in the school which taught "the unjust Logic
[t]hat can shirk debts. '8 Aristophanes attacked the sophist
schools which trained men in the art of argument, without regard
for social duties or the moral obligation to select right over wrong. 8
Strepsiades, the protagonist, knew that if he entered a court of law
and pleaded his case he would have lost. Therefore, his only salvation was either to employ counsel or learn the art of being:
• . .a concoter of lies,
A rattler to speak, a dodger, a sneak,
A regular claw of the tables of law,
A shuffler complete, well worn in deceit,
A supple, unprincipled, troublesome cheat;
A hang-dog accurst, a bore with the worst,
In the tricks of the jury-courts thoroughly versed.88
If this were an accurate picture and not a caricature of the contemporary legal profession, then it appears that there was a definite
departure from the ideal of the citizens' duty to the whole and
motivation derived from civic-mindedness. The adversary system
became a battle of wits where right and wrong were inconsequential.
The dramatic skill of the attorney was the sole determinative in
deciding the outcome of the litigation. In The Acharnians, Aristophanes again spoke of how the system was corrupted, how the orators feigned interest in justice, how they were "nothing but dumb
and crack-voiced" 8 actors.
These plays depict the bastardization of the citizen espoused by
Aristotle in his Politics. A citizen is "a man who shares in the
86. ARISTOPHANES, The Wasps in THE FIVE COMEDIES OF ARISTOPHANEs 215,
246-47 (B. Rogers transl: 1955).
87. ARITOSPHANES, The Clouds in THE FIVE COMEDIES OF ARISTOPHANES 149, 161
(B. Rogers transl. 1955).
88. Id. at 150-51 (translator's note).
89. Id. at 170.
90. ARISTOPHANES, The Acharniansin 1 THE COMEDIES OF ARISTOPHANES 2, 28 (W.
Hickie transl. 1886).
19731
ATHENIAN DUE PROCESS
administration of justice and in the holding of office." 9' The concept
of the citizen was bound to the perception of the polis.92 The citizen's obligations to the polis were to embrace his life, but in actuality, private and self-serving interests were a strong factor which
weakened the practicality of such a theory. These shortcomings
were recognized by Aristotle and Plato and, consequently, both advocated in their many works a re-education of the people in order
to achieve the goals upon which the Athenian system was built.
Ill.
RIGHT TO SPEEDY TRIAL
Another procedural guarantee found both in the American and
Greek systems was the right to a speedy trial. The Law of
Timocrates assured any Athenian held in custody an appearance
before the court within 30 days of his arrest if within that period his
case had not already been brought before the thesmothetai.93 It was
the duty of the Eleven94 to see that the accused was brought to
court.9 5 Even where no party was incarcerated, in certain instances
the litigants were guaranteed a trial within 30 days. Between 346322 B.C., the Eisagogeis was instituted to lighten the number of
cases certain magistrates had to hear within the 30-day period."
Examples of these cases are: (1) mondy lent at 12 percent interest;
(2) capital lent to start a new business venture; (3) assault; (4)
return of friendly loans; (5) litigation stemming from banking transactions; (6) litigation involving property in slaves and beasts; and
(7) litigation arising out of damage done by a man's slave or beast. 7
Most cases were heard within 30 days; continuances would be available if all parties assented-if one party objected then both had to
take oaths and the court heard arguments and decided accordingly."'
91. ARISTOTLE, POLrrICS 93 (E. Barker transl. 1962).
92. Id. passim.
93. 2 HARRISON, supra note 14, at 87. The thesmothetai was a body of six archons
(the highest magisterial officers) which fixed dates of trial and assigned cases to
the different courts. Id. at 12-13.
94. The Eleven were executives charged with the duty to convict and punish
common criminals. They also performed police activities. Id. at 17. In a case where
the accused confessed, the Eleven could exercise judicial functions on their own
authority. 2 BONNER & SMITH, supra note 30, at 121.
95. 2 HARRISON, supra note 14, at 57.
96. Id. at 21.
97. Id. at 22.
98. 2 HARRISON, supra note 14, at 155.
498
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All trials lasted no more than one day, unless some "act of the
gods"-eclipse, earthquake, thunderstorm-indicated displeasure
with the proceedings and the trial was postponed until the next
day.90 The amount of time each party had to present his case was
limited because each case had to be completed on the same day the
trial began."" The allotted time was measured by a water-clock;
each party was allotted a specified quantity of water and when it
ran out of the container the speaker's time ended.10' Only one public" 2 case was heard per day; possibly four private cases per day. The
time allotted for the speeches did not include time for introduction
of evidence. 01 3 During Aristotle's day, the time allowed for the
speeches differed according to the value of the issue at bar.'0' The
limited time allotted to each case in Athens was probably a practical rule which grew out of necessity. The ancient Greeks were a
"litigious people"'0 ' and to allow long trials would have brought the
entire system to a halt.
In the United States, the sixth amendment guarantees a speedy
trial only in criminal proceedings; there is no corresponding provision with regard to civil cases. Rule 48 of the Federal Rules of Criminal Procedure specifies that any unnecessary delay in either presentment to the grand jury, filing an information, or bringing a
defendant to trial will result in a dismissal. "Unnecessary delay"
excludes delays to which the defense agrees, acquiesces, or contributes. ' 6 The right to a speedy trial under the sixth amendment has
been held to relate only to the period between the accusation and
the trial,0 7 apparently not to the length of the trial. Mere lapse of
99. Bertoch, supra note 9, at 1013.
100. 2 HARRISON, supra note 14, at 161.
101. Id.
102. Public cases were brought by any citizen and included crimes "where the
penalty was a fine paid to the state." Id. at 78. Homicide was a private action
because it had to be brought by a relative of the deceased, not by a public prosecutor. 2 BONNER & SMITH, supra note 30, at 198-99.
103. 2 HARRISON, supra note 14, at 161.
104. Id. at 162.
105. 2 BONNER & SMITH, supra note 30, at 289. See also ARISTOPHANES, The Wasps
in THE FIVE COMEDIES OF ARISTOPHANES 215, 238 (B. Rogers transl. 1955) (remarks
of Bdelycleon).
106. United States v. Sawyers, 186 F. Supp. 264 (N.D. Cal. 1960).
107. United States v. Daley, 454 F.2d 505 (1st Cir. 1972). The Court of Appeals
held that no actual prejudice nor purposeful delay was shown. A 13-month delay
in bringing the defendant to trial did not violate his right to a speedy trial, in the
absence of serious prejudice or improper government conduct. See also United
ATHENIAN DUE PROCESS
19731
time is not enough; there must be improper motivation by the government or the defendant must have been prejudiced."' 8 The reasoning behind the right to a speedy trial has been elaborated upon in
Smith v. Hooey.0 9 This right is "to (1) prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety. . . and (3)
to limit the possibilities that long delay will impair the ability of an
1 ' The Supreme Court has held
accused to defend himself.""
the right
to be applicable to the states through the due process clause of the
11 1
fourteenth amendment.
Inasmuch as the Greek system limited the time that a litigant had
to present his case in the interests of expeditious disposition of legal
controversies, the question arises as to what extent the discovery of
truth was hindered. Plato criticized the prevailing system for this
reason, arguing that the pursuit of truth and justice was more important than concluding legal conflict with great dispatch. 12 According to Platonic philosophy, the pursuit of truth is the last resort
in which rested the hope of spiritual peace."' Justice is the inner
force in man-the inner law of measure, balance, and health.' The
virtue of justice could not be attained in Athens through the courts
as they existed because of the limited time allotted.
In The Theatetus, Socrates recognized the divergence between
the practical life (encompassing the pragmatic considerations of
administering a legal system) and the contemplative life (which
embodies the Platonic ideal of a continuing search for truth, regardless of time consumed). " 5 The philosopher was free from the constraints of time and could continue his discourse until the truth was
found. In contrast, the orator was hurried by the clock, "[t]here is
no space to enlarge upon any subject he chooses, . . . [h]e is a slave
disputing about a fellow-slave before a master sitting in judgStates v. Marion, 404 U.S. 307 (1971); Dickey v. Florida, 398 U.S. 30 (1970); Hoag
v. New Jersey, 356 U.S. 464 (1958).
108. United States v. DeCosta, 435 F.2d 630 (1st Cir. 1970).
109. Smith v. Hooey, 393 U.S. 374 (1969).
110. Id. at 378, citing United States v. Ewell, 383 U.S. 116, 120 (1966).
111. Klopfer v. North Carolina, 386 U.S. 213 (1967). The state was able to
postpone defendant's indictment indefinitely and without justification after the
lower court granted the motion of nolle prosequi with leave. The Court held that
defendant was denied his right to a speedy trial.
112. P. MORE, THE RELIGION OF PLATO 44 (1921).
113. Id. at 43.
114. Id. at 44.
115.
PLATO, THEATETUS
84-85 (F. Cornford transl. 1934).
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ment.
...
"I,Socrates accused the water-clock of forcing an orator
to flatter the jury and play to their emotions, to twist the truth and
avoid honesty. The outcome was that he was robbed of his free spirit
and thrown into an intellectual slavery. In The Apology Socrates
stated, "If there were a law at Athens, as there is elsewhere, not to
finish a trial of life and death in a single day, I think that I could
have persuaded you; but now it is not easy in so short a time to clear
myself of great prejudices. ' '"17 It would seem, therefore, that while
the judicial process in Athens might have been characterized by its
seeming efficiency, there were those who felt that truth was sacrificed in the process.
IV.
RIGHT TO SUBPOENA WITNESSES
In Athens, in the fourth century B.C., there were no subpoenas
issued to compel a witness to appear in court."' It was incumbent
upon the litigant, not the state, to assure the attendance of a witness
to acknowledge his testimony."' It was the duty of the litigant to
notify a witness when to appear at trial. 120 If a witness failed to
appear or refused to testify there was recourse to the court. The
nature of the judicial action is obscure;' 2' a fine may have been
imposed but this did not help the litigant in his case at bar. The
litigant also may have been able to institute a suit for damages
against the recalcitrant witness.' 2 However, it is unlikely that a
litigant often had difficulties in securing a witness. Men had more
leisure time than in modern societies' 2 and part of the responsibilities of citizenship in the polis was helping a fellow citizen. Often, a
man had reliable acquaintances witness his business transactions so
as to assure the appearance of witnesses in court if a case concerning
that dealing ever arose.
The Greek system in this respect was completely different from
116. Id.
117. PLATO, EUTHYPHRO, APOLOGY, CRITO 44 (2d ed. F. Church transl. 1956).
Shortly after this statement Socrates was condemned to death for having corrupted
the youth of Athens.
118. 2 HARRISON, supra note 14, at 138.
119. The litigant read a statement and the witness acknowledged it to be his.
See text accompanying note 137 infra.
120. 2 BONNER & SMITH, supra note 30, at 137.
121. Id. at 137-38.
122. Id. at 139.
123. Id. at 136.
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ATHENIAN DUE PROCESS
the American experience. Another guarantee of the sixth amendment is the right of the accused in a criminal prosecution to compel
witnesses in his favor to appear in court. 1 4 This compulsory process
has been codified in Rule 17 of the Federal Rules of Criminal Procedure.12 Rule 45 of the Federal Rules of Civil Procedure codifies the
availability of a subpoena to compel a person to attend and testify
in a civil proceeding.2 2 The sanction imposed for failure to comply
with the mandate of the subpoena is contempt.12 1 Prior to punishment, the court must determine that the witness' attendance and
12
proffered evidence is material. 1
129
During the Homeric age the litigants appeared before the court;
there were no witnesses. The court based its decision upon its evaluation of the credibility of the stories told by each litigant. In the trial
scene in The Iliad, the gods were the only witnesses. 3 ' The gods were
called upon to stand as guarantors of the truthfulness of the statements made by each party and to punish any perjurer. 31 Later, in
the works of Hesiod, c. 800 B.C., witnesses first appeared in a trial
3
proceeding.
In The Apology, Socrates stated that he would not assemble his
witnesses to back up his story as a showing of the strength of his
argument. 3 3 Again the Athenian concept of one citizen coming to
the aid of another was manifested by the assumption that a citizen
124. In Washington v. Texas, 388 U.S. 14 (1967), the Supreme Court extended
this right to the states through the fourteenth amendment.
125. In Taylor v. United States, 329 F.2d 384 (5th Cir. 1964), the court discussed
an indigent's right to subpoena witnesses in his behalf.The court stated that "the
right is not absolute but that a wide discretion with respect t6 subpoenaing
witnesses at government expense is vested in the District Court to prevent abuse,
and an appellate court will not disturb the exercise of that discretion unless exceptional circumstances compel it." Id. at 386.
126. FED. R. Civ. P. 45.
127. Courts have inherent power to enforce compliance with their lawful orders
through civil contempt. Shillitani v. United States, 384 U.S. 364 (1966).
128. Oceanic Transp. Corp. v. Alcoa S.S. Co., 129 F. Supp. 160 (S.D.N.Y. 1954).
129. 2 BONNER & SMITH, supra note 30, at 117.
The two men rushed before these, and took turns speaking their cases, and
between them lay on the ground two talents of gold, to be given to that judge
who in this case spoke the straightest opinion.
HOMER, THE ILIAD 388 (R. Lattimore transl. 1951).
130. 1 BONNER & SMITH, supra note 20, at 41.
131. Id.
132. 2 BONNER & SMITH, supra note 30, at 117.
133. PLATO, EUTHYPHRO, APOLOGY, CRrrO 40 (2d ed. F. Church transl. 1956).
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voluntarily appeared in court to testify. Socrates pointed out that
this procedure deteriorated to a show of strength, the more witnesses
who paraded into the courtroom, the more likely the jury was to
conclude truth was on that party's side. Socrates added that he
would not parade his family before the jury to evoke sympathy-a
custom Aristophanes alluded to in his derision of the court system
in The Wasps:
And if all this fails, and I stand unmoved, he leads by the hand his
little ones near,
He brings his girls and he brings his boys; and I, the Judge, am
34
composed to hear.'
V.
THE RIGHT OF CONFRONTATION AND CROSS-EXAMINATION
Although Socrates has often been described as the father of crossexamination,' 35 this adversary method for the ascertainment of
truth was not followed by the Greeks.'3 6 Instead, the litigant wrote
down what the witness was supposed to say and the witness merely
asserted or acknowledged it. "7 Consequently, there was the problem
of how to determine the credibility of the witness. This was accomplished by allowing the litigant an opportunity to impeach the witness, by showing that (1) the witness had a prior conviction of falsehood; 38 (2) the litigant was wealthy and the witness had motive for
perjuring himself for a favor; ' 3 (3) there was a distinct relationship
134. ARISTOPHANES,
The Wasps in
THE FIVE COMEDIES OF ARISTOPHANES 215, 241
(B. Rogers transl. 1955).
135. Bertoch, supra note 9, at 1014. See also Plato's Apology, where Socrates'
examination of Meletus caused the latter to make damaging admissions. PLATO,
EUTHYPHRO, APOLOGY, CRITO 21 passim (2d ed. F. Church transl. 1956). As to
whether or not Socrates actually invented the art of cross-examination, there is
sparse but conflicting authority. Bertoch, supra, contends that Socrates was the
inventor. Wigmore, however, espouses the opposite view. 1 J. WIGiAORE, A PANORAMA OF THE WORLD'S LEGAL SYSTEMS
292 (1928).
136. Indeed, the Greek trial was not based to any significant extent upon the
adversary system. "Under the system instituted by Solon, as it ultimately developed, an Athenian trial was entirely in the hands of non-professionals. The presiding magistrate was selected, by lot, the jurors were drafted from the whole citizen
body, any citizen could be prosecutor, the defendant conducted his own case."
WIGMORE, supra note 135, at 291. The jury was both judge of the facts and the law.
See also text & accompanying note 50 supra.
137. 2 BONNER & SMITH, supra note 30, at 144. See 2 HARRISON, supra note 14,
at 139.
138. 2 BONNER
139. Id.
& SMITH,
supra note 30, at 135.
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ATHENIAN DUE PROCESS
between the witness and the litigant, such as friend or foe; 4 0 (4) the
witness had a financial interest in the outcome of the suit;", (5) the
witness had a general reputation in the community for untruthfulness;' and (6) the witness had no opportunity of knowing what he
acknowledged in the affidavit.4 3 All of these methods were aimed
solely at impeachment; they were not designed to unearth new facts
or draw relevant information from the attesting witness.
In contrast to the Greek system, the sixth amendment to the
United States Constitution guarantees the accused the right to confront the witnesses against him which necessarily includes the right
to cross-examine those witnesses.' The primary aim of the confrontation clause is ". . . to prevent depositions or ex parte affidavits
. . . [from] being used against the prisoner in lieu of a personal
examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and
sifting conscience of a witness, but of compelling him to stand face
to face with the jury in order that they may . . .judge by his
demeanor . . . whether he is worthy of belief.""'4 In Pointer v.
Texas,'4' the Supreme Court held that the fourteenth amendment
made this right to confront witnesses applicable to state criminal
proceedings.'47
Although cross-examination was not practiced in the courts of
Greece, it is evident that Socrates' frequent use of it did have some
effect. In Aristophanes' The Acharnians, the old men complained
that they easily fell victim to young prosecutors skilled in setting
verbal traps.'48 Socrates' skill epitomized the art of cross140. Id. However, in family matters, relatives were looked upon as the best
witnesses and failure to produce them could raise a negative presumption and
adversely affect the litigation. Id.
141. Id. at 136.
142. Id. at 135.
143. Id.
144. Pointer v. Texas, 380 U.S. 400 (1965). See generally C. MCCORMICK, LAW
oF EVIDENCE 43-65 (2d ed. E. Cleary 1972).
145. Douglas v. Alabama, 380 U.S. 415, 418-19 (1965), citing Mattox v. United
States, 156 U.S. 237, 242-43 (1895). See also Smith v. Illinois, 390 U.S. 129 (1968);
Barber v. Page, 390 U.S. 719 (1968).
146. Pointer v. Texas, 380 U.S. 400 (1965).
147. Id. at 403.
148. ARISTOPHANES, The Acharnians in 1 THE COMEDIES OF ARiSTOPHANEs 2, 28
(W. Hickie transl. 1886).
504
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[Vol. 23
examination by running rings around his victims.' Aristophanes
satirized Socrates and his fellow dialecticians in the play The
Clouds. Strepsiades, the protagonist, asked Socrates
So now, I prithee, teach him both your Logics,
The Better, as you call it, and the Worse
Which with the worse cause can defeat the Better;
Or if not both, at all events the Worse.
Give him the knack of reasoning down all Justice.' 0
These tricks of the trade perverted the ability of the court to reach
a just decision and caused the outcome to be predicated on which
of the two sides possessed the more agile tongue.
VI.
THE PRIVILEGE AGAINST SELF-INCRIMINATION
There was no privilege against self-incrimination in ancient Athens.'5 ' A reluctant witness could not refrain from answering a question on the grounds that he might incriminate himself.' 2 The litigant frequently tried his own case, using whatever knowledge of the
law he might have.' 3 Therefore, the litigant could hardly remain
silent if he entertained any serious thoughts of success. A partyopponent could ask a litigant a specific question and the litigant was
under a duty to reply.'54 While there is no indication of possible
sanctions against a litigant who refused to answer a question, it
certainly could not have sat well with the jury; there was no corresponding presumption that failure to testify did not imply guilt."'
In the American system, the accused in a criminal proceeding is
protected by the privilege against self-incrimination as stated in the
149. E.g. PLATO, EUTHYPHRO, APOLOGY, CRIro 1 passim (2d ed. F. Church transl.
1956).
150. ARISTOPHANES, The Clouds in THE FivE COMEDIES OF ARISTOPHANES 149, 186
(B. Rogers transl. 1955).
151. 2 HARRISON, supra note 14, at 138.
152. Witnesses were not examined and cross-examined. They listened to the
reading of their statement and acknowledged it as their own. See text & accompanying notes 135-43 supra.
153. This was most prevalent during the early periods of Athenian history. See
generally text & accompanying notes 58-60 supra.
154. Each litigant was allowed a specified amount of time to make his speech.
During this time, the opposing party could not interrupt the litigant with a question. Presumably, during his own time he could ask the litigant a question and it
had to be answered. 2 HARRISON, supra note 14, at 162.
155. Id.
ATHENIAN DUE PROCESS
1973]
fifth amendment. In Counselman v. Hitchcock,156 the Supreme
Court expanded the meaning of the amendment to include any
witness in any investigation who may give testimony which might
lead to his own prosecution in a subsequent proceeding. 5 ' "The
privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike
to civil and criminal proceedings, wherever the answer might tend
to subject to criminal responsibility him who gives it."
'
Malloy v.
Hogan5 '
held the fifth amendment right applicable to the states
through the fourteenth amendment due process clause. The historical basis of the right was in part the desire to protect an accused
against physical torture as a means of extracting a confession which
occurred during the days of the Star Chamber. 160 The privilege only
protects those statements which can lead to "legal criminal liability.,,101
The lack of a right against self-incrimination in ancient Greece is
reflected in some of the literature of that period. For instance, Orestes was subjected to the obligation of answering the questions
posed to him by the Furies; Meletus, in The Apology, was repeatedly reminded that he must answer Socrates. The Athenian's right
to protect himself and guard against future prosecution or criminal
liability was subrogated to the community's objective of administration of justice.6 2 A man's duty to himself was secondary if it
conflicted with his duty to his country. "3 There was no privilege
against self-incrimination in Athens because the collective interests
of the society were valued above any rights which might have inured
to the individual. Socrates was sent to his death because he did not
accept the tenets of the polis; his individuality was more dear to him
than a capitulation to pressures to conform."'
156.
157.
158.
159.
Counselman v. Hitchcock, 142 U.S. 547 (1892).
Id. at 562.
McCarthy v. Arndstein, 266 U.S. 34, 40 (1924).
Malloy v. Hogan, 378 U.S. 1 (1964).
160.
MCCORMICK,
supra note 144, at 251.
161. Id. at 256. For a complete discussion see id. at 243-308.
162. See text & accompanying notes 35-39 supra.
163. J. Bury, Individualism Versus Equality in ATHENIAN DEMOCRACY: TRIUMPH
OR TRAVESTY? 34, 35 (J. Claster 1967).
164. PLATO, EUTHYPHRO, APOLOGY, CRiTO 21 passim (2d ed. F. Church transl.
1956).
506
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VII.
(Vol. 23
RIGHT TO APPEAL
Prior to the rule of Draco and Solon, the Areopagussupervised the
magisterial administration of the law.'65 If the Areopagus deter-
mined that a magistrate failed to follow the laws, the body had
authority to void the administrator's decision.' Solon expanded
this procedure and introduced the ephesis, an "appeal" from the
magisterial edicts to the peoples' court, the Heliaia."71 The significance of this Solonian "appeal" diminished as the magistrates lost
their power to pronounce judgments.'" However, in the fourth century B.C., public arbitrators' were established and the "appeal"
reinstated.
It is uncertain whether the ephesis was a right available to any
litigant who sought a re-examination of his case or whether there
was an obligatory referral of an arbitrator's decision to the
dikastery.17 ° It is certain that obligatory reference of a case to a
dikastery did occur if the case were before the boule'"' and also in
serious cases arbitrated in outlying provinces where the accused was
a native or supporter of Athens. 1 2 In the latter case, the accused had
a right to be tried in Athens, a right which developed out of a desire
to protect Athenian allies.'73
If an appeal were taken from an arbitrator's decision, all docu165. 2 BONNER & SMITH, supra note 30, at 232. See text & accompanying notes
20-21 supra.
166. Id. at 232-33.
167. 2 HARRISON, supra note 14, at 2-3.
168. 2 BONNER & SMITH, supra note 30, at 235. See 2 HARRISON, supra note 14,
at 4.
169. There were two types of arbitrators in fourth century B.C. Athens. The first,
private arbitrators, were groups of private citizens who were given authority to
resolve disputes. Though the arbitrators were not state officials, the government
promulgated rules governing their decisions. The decisions were legally binding on
the parties. The second type, public arbitrators, were assigned cases and subject
to direct control by the courts. All citizens had to serve a one-year term as a public
arbitrator. The arbitrators were divided into ten groups regardless of tribal affiliation. Cases were assigned to an arbitrator who was serving the tribe to which the
alleged defendant belonged. Decisions were subject to control of the courts and
could be appealed. 2 HARRISON, supra note 14, at 64-68.
170. 2 BONNER & SMITH, supra note 30, at 232. Harrison discusses another question, was the ephesis an "appeal" or a trial de novo? 2 HARRISON, supra note 14, at
73.
171. 2 BONNER & SMITH, supra note 30, at 245.
172. Id. at 248.
173. Id.
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ATHENIAN DUE PROCESS
ments or other written testimony introduced at trial were sealed in
large jars and preserved for use before the dikastery.174 These appeals were predicated upon either a non-acceptance of the arbitrator's decision by one party or upon the imposition of a penalty larger
than the authorized number of drachma.'15 There were advantages
to not appealing an arbitrator's decision. First, an arbitrator could
reach a compromise decision, while a dikastery had to choose one
of the penalties suggested by the parties.17 Second, the arbitrator
could invoke the principles of equity, while the dikasts were bound
by their oath to follow the laws.1 77 It is unlikely that if both parties
accepted the arbitrator's decision they could later appeal;'7 this
would frustrate the purpose of the arbitrators which was to relieve
the congestion of the courts. The aggrieved party could have found
his remedy in bringing an action for damages against an alleged
79
perjurer.'
If a case were actually tried by a court in contrast to a magisterial
or arbitral proceeding, then under most circumstances, these decisions were treated as final."' However, there were certain exceptions
which allowed an appeal from the decision of a dikastery and the
case was reopened. One such instance was the giving of false evidence.' 8 ' The exact procedure of attacking evidence introduced at an
earlier trial is uncertain. 82 There may have been another suit to
nullify the first judgment or the original court may have had jurisdiction to hear the proceeding again."3 But if the alleged false evidence was relatively unimportant and was not decisive of the issue,
it is doubtful whether the case would have been reopened." 4 The
concept of a new trial because new evidence was proffered hardly
existed in ancient Athens; if new evidence were later adduced, a
174. Id. at 236. See 2 HARRISON, supra note 14, at 19.
175. 2 HARRISON, supra note 14, at 19.
176. Id.at 73.
177. Id.
178. Id.at 197.
179. Id.
180. Id.at 191.
181. Id. at 192. See 2 BONNER & SMITH, supra note 30, at 261.
182. 2 HARRISON, supra note 14, at 195.
183. Id.at 194-95.
184. Id. at 194. The appellant had another option open. Instead of re-opening
the suit, he could have brought an action for damages against the alleged perjurer.
508
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[Vol. 23
convicted defendant could have been pardoned.8 5 Technical objections, more of form than of substance, did not authorize an appeal. 8 '
Review of a case might have been had if a default judgment had
been rendered and the litigant wanted to excuse or explain his default. 187 The litigant was bound to appeal the default judgment
within two months and, if successful, the case was tried de novo."' s
American courts require, as did the Greeks, that the grounds for
an appeal be substantial and not be susceptible to description as
"harmless error." Rule 52(a) of the Federal Rules of Criminal Procedure states that if the appeal is based upon a harmless error it will
be disregarded and the decision will not be disturbed. The Supreme
Court defined harmless error in Kotteakos v. United States189 to
mean an error which did not influence the jury or, if it did, the effect
of which was slight."' The test is not whether there was sufficient
evidence to support the verdict irrespective of the error, but whether
the evidence had substantial impact upon the jury. In Harrington
v. California"' the Supreme Court rejected the position that any
departure from the constitutional safeguards was grounds for automatic reversal, that such errors can not be harmless. Likewise, in
civil proceedings, the appeal must be based upon an error which
substantially contributed to the judgment."'
There is no constitutional right to appeal a judgment." 3 Rule 4(b)
of the Federal Rules of Appellate Procedure," 4 however, provides for
an appeal of a judgment if new evidence is produced. In civil proceedings, the American system provides that a motion for appeal be
185. 2 BONNER & SMrTH, supra note 30, at 260. But where evidence taken at the
trial was false see text & accompanying notes 180-82 supra.
186. Id. at 261.
187. 2 HARRISON, supra note 14, at 197. A notice or summons had to have been
served on a defendant for him to know when to appear before the arbitrator. If the
defendant did not appear, the opposing litigant was required to produce witnesses
to prove that notice had been properly served before a default judgment could be
entered. Id. at 86-87, 89-91.
188. Id. at 197-98.
189. Kotteakos v. United States, 328 U.S. 750 (1946).
190. Id. at 764-65.
191. Harrington v. California, 395 U.S. 250 (1969).
192. F.
JAMES, JR., CIVIL PROCEDURE
521, 530 (1965).
193. Ohio ex rel. Bryant v. Akron Park Dist., 281 U.S. 74 (1930); Luckenback
S.S. Co. v. United States, 272 U.S. 533 (1926); Standard Oil Co. v. Missouri, 224
U.S. 270 (1912).
194. FED. R. App. P. 4(G).
ATHENIAN DUE PROCESS
1973]
timely,'95 the error must appear in the record,'9 6 and a judgment can
be reversed only on grounds argued by appellant during both the
'
trial and before the appellate court. 97
An appeal, in more than one sense of the word, to the dikastery
was the prevailing means of controlling the government in Athens. '
Because any issue, political or administrative or private, could be
brought before the people by submitting it to trial,'99 the people were
vested with power over the day to day affairs of the city. An administrative official who abused his delegated judicial power was
checked by the right to appeal. The power lay in the people. The
right to appeal reinforced the reasoning which initially gave rise to
the jury system. 29 Responsibility of governing, judging, and legislating fell on the citizens. 01 While it may be appreciated that the polis
was designed to operate as a democratic state,2 2 in part through the
exercise of procedures embodied in its legal order, the community
23
of citizens who composed the polis was restricted.
In light of the fact that taking a case to the dikastery, whether
by appeal or by an exercise of its original jurisdiction, was seen as
a significant device for the exercise of popular sovereignty, it is
interesting to note the attitudes of some of the great minds of ancient Athens. In The Euthyphro Socrates exhibited a contempt for
the common folk. Euthyphro was a magistrate, part of the established judicial system, yet Socrates badgered him and ridiculed his
conceptions of piety and impiety and their relation to justice.
But, Socrates, I really don't know how to explain to you what is in
my mind. Whatever statement we put forward always somehow
2°
moves round in a circle, and will not stay where we put it. 1
195. FED. R. Civ. P. 59(G).
196. F. JAMES,
JR.,
CIVIL PROCEDURE 524-25 (1965).
197. Id. at 526-28.
198. Pharr, supra note 8, at 445. Of course some cases were not in the posture of
an appeal when presented to the dikastery. See text accompanying notes 38-39
supra.
199. Id.
200. See text & accompanying notes 42-45 supra.
201. AEsCHYLUS, THE ORESTEIAN TRILOGY 15 (rev. P. Vellacott transl. 1959) (introductory note).
202. Finley, The Greek City-State, in 1 ANCIENT CIVILIZATION: 4000 B.C.-400
A.D. 64, 68 (1967).
203. One had to be born into the "community" to become a citizen. Marital
restrictions were also enacted to maintain the exclusivity. Id. at 71-72.
204. PLATO, EUTHYPHRO, APOLOGY, CRITo 13 (2d ed. F. Church transl. 1956).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 23
It was Socrates who was running circles around Euthyphro. Socrates regretted that "the city is controlled by an ignorant assembly
and that the magistrates being chosen by lot have no special qualification for leadership.111 5 Plato echoed these sentiments and frowned
upon the rule of amateurs, government by those without special
education and training in logic and reason. 20 The Athenian regime
required each citizen to share in the determination of the state.
Plato viewed persuasion, the art used to procure a favorable jury
verdict, as an element of opinion, not a characteristic of knowledge.2"7 The philosopher-king must be trained in the ultimate discipline of dialetics in order to grasp the vision of the good. The commoner could not readily differentiate between sense perception and
the knowledge of ideas; the masses sitting in the jury box could not
2
mete out justice because they succumbed to the bodily appetites. 1
Thus there was a sharp divergence between the underlying public
policies upon which the process was founded and contemporary literary thought which reflected an attitude of elitism and intellectual
aristocracy.
VIII.
CONCLUSION
One can only speculate what a legal system will be like twentyfour centuries hence. But to the extent that past is prologue and this
comment reveals anything, it is evident that two societies widely
separated by gaps in time and culture must confront and deal with
similar problems although they need not resolve them in the same
manner. Human nature does not vary significantly from one generation to the next. Just as the Athenian dikastery was often swayed
by emotional pleas, so is our American jury often influenced by the
antics of a skilled trial attorney. However, a nation should never
allow itself to become so accustomed and comfortable with its institutions that it ceases to question their viability in that society. The
values of the society whether past, present, or future, undoubtedly
guide the shaping of a solution; yet the society must be able first to
recognize the existence of a problem. Socrates, Plato, and Aristophanes all questioned the functional aspects of the administration
205. Harper, Democracy at Athens inTHE GREEK POLITICAL
(1941).
206. Id.
207. PLATO, THEATETUS 109-40 (F. Cornford transl. 1934).
208. PLATO, THE REPUBLIC 129-38 (F. Comford transl. 1945).
EXPERIENCE
47
1973]
ATHENIAN DUE PROCESS
511
of justice as they saw it in Athens; criticism is only useful when it
is catalyst to self-examination and re-evaluation. So too must we
look to the past for the insight it imparts. Otherwise, mere words
spoken do not leave their full impact upon civilization.
BARBARA
T. R. ZIMET
Grerge
:auib iorning, Jr.
1088-1974
P'OUNDSI
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