So far as one can tell, Athenians as citizens of a democracy continued to initiate lawsuits as they had in the past. In the case of a homicide, a member of the decedent's family, as defined in Drakon's law, might initiate a prosecution, but not just any member of the community. In other kinds of wrongdoing, the injured person (or in the case of a woman, her kyrios) issued the summons (prosklêsis). But when the best interests of the state were involved, anyone who wanted could be prosecutor. The prosecutor hailed the defendant before a magistrate. The magistrate asked enough questions to determine whether the proposed litigation fell within the area of his responsibilities, and if he decided Yes, he had a public notice posted on the railings that ran around the statues of the Eponymous Heroes.
Notice of a trial started with some such form as the following, which we have preserved in a Demosthenic oration: “Apollodoros, son of Pasion, from Akharnai [in a sworn indictment charges] Stephanos, son of Menekles, from Akharnai with giving false witness. Penalty: one talent. Stephanos testified falsely against me when he attested the written documents in the container.” “I, Stephanos, son of Menekles, from the deme Akharnai, testified truly when I attested the written documents in the container.” (Dem. 45.8
; cf. Dem. 21.103
). The notice next told litigants when and where to be for their day in court. And the rest of town, always interested in some new thing, also wanted to know who was being tried, for what, and when. Spectators, kept outside of critical areas by dryphaktoi but still close enough to see what was happening and to hear arguments and verdicts, and indeed to make themselves heard, continued to participate even if only marginally in the conduct of trials.
Whether or not earlier in the fifth century the general body of dikasts was divided in any way—other, that is, than the formation of groups of other dikastic panels—is a matter for speculation. It is natural to suppose that any necessary administrative divisions would have followed affiliations by tribe. Our single klepsydra is labelled property “of Antiochis.” Other dikastic equipment (assuming that the klepsydra is dikastic) ought likewise to have been maintained and disposed as property of the tribe, and dikasts themselves may have been organized according to tribe as well. Now, however, perhaps as soon as ca. 410, the eligible men of each tribe were allotted letters (A to K) that identified them as belonging to one of ten dikastic sections. These sections cut across tribe lines so that each was made up of a roughly equal number of men from each of the ten tribes. An aim of this division was to prevent men from the same tribe from making combinations by which they could influence the outcome of a trial.
Assignment of section letters to dikasts could have been a simple procedure such as drawing lettered balls from a container. It might have gone somewhat as follows: the balls, lettered A to K, are shaken up in a wickerwork vessel called κηθίς
(Aristoph. Wasps 673-74
, with scholia). If there are two vessels to a tribe, there were perhaps 300 balls to a vessel. Each citizen who is eligible to be a dikast draws one letter. That letter is forthwith his section letter, and it is duly stamped into his pinakion. These small tags, into which some dikasts pierced holes for string to hang around their necks, had stamped into them the dikast's name, his father's name, his demotic, and a section letter. The section letters (A to K) label the ten dikastic sections noted above. Bronze pinakia are attested in mid-fourth century, and about 150 examples are preserved. Klêrôtêria could have been set up at organization areas for tribes. These allotment machines were stêlai of wood or stone with columns of slots. Along one side a tube was affixed vertically. Suppose that as later there were two klêrôtêria for each tribe. Each klêrôtêrion in that case would have five columns of slots, making a total of ten columns, each with a letter from A to K at its top. Would-be dikasts plug their pinakia into appropriate columns. Balls marked with the names of courts are drawn in a chance order one at a time. Each ball in our example either assigns five dikasts to a court for the day or disqualifies five, depending on whether or not the ball is marked with the name of a court.
In the present illustration, i.e. a trial held sometime between 409 and ca. 340, trials continued to be held in buildings and localities widely separated from each other. On one and the same day, the Odeion and the Stoa Poikile could have been in use. The building in which the heliaia met can have been the same capacious structure in the southwest corner of the Agora, although by this time Building A, under the Stoa of Attalos, seems a better candidate. If a judging body of two thousand or more dikasts was needed, that is to say, an assembly larger than could be accommodated in the Heliaia, theoretically archons could convene such a body in the Theater of Dionysos immediately west of the Odeion; or in the Pnyx; or in the Agora, where a fence would serve to mark the venue.
But to return to days on which two or more widely separated dikastêria were working, suppose the allotment of dikasts to courts took place in the Agora. It is hard to see how the dikasts, after being allotted, could fail to pass through open areas in the Agora in order to reach that court. Furthermore, if that court happened to be the Odeion, dikasts had to traverse parts of the town outside the Agora. Aristotle in his account of later procedure (that of ca. 325) describes the courts as being within an enclosed area. Athenians, we can infer, had come to acknowledge the possibilities of corruption at this critical point. There may have been scandals. Think of Anytos, who Aristotle says in 409 became known as the first man ever to corrupt a whole dikastêrion (Aristot. Ath. Pol. 27.5
). In the scheme under consideration here, when courts on any given day could be situated at good distances from each other, a staff was no protection. Colored or not, a staff in the hand of a dikast would make him a target for malefactors. That litigants could approach dikasts on their way to court and offer bribes or threats was an obvious vulnerability. This was surely a principal consideration when Athenians later planned an enclosed complex of courts (see below).
The allotment of dikasts to ten sections of the whole body of dikastai was one innovation of the late fifth century. Another was the assignment by lot of seats, or rather of sections of the seating. Dikasts upon entering the court to which they had been allotted drew lettered, bronze tokens. These tokens (symbola) were coin-like pieces, each with a letter of an alphabet that contained in addition to the canonical letters A through ω
, an extra imported letter, τ
, which had been added on to create a twenty-fifth label. Dikasts on entering draw a token, look at the letter, and sit in a section identified by that letter.
In allotting dikasts to courts and assigning seating areas by chance Athenians were guarding against two ways by which their aim of an even-handed administration of justice could be spoiled. First, interested persons could not approach dikasts beforehand, since neither the dikasts nor anyone else knew until the morning of their service where they would judge. (Unfortunately, however, dikasts could still be approached en route to their courts.) Secondly, dikasts could not sit where they liked and so form blocs of friends or relations with kindred interests.
As for the actual trial, it seems to have followed the earlier plan. A magistrate—let us say this time he is the Basileus—ascertains that the dikastic panel is full. Early in the fourth century 500 dikasts would make up a full panel, but by the 80's an odd man had been added. A panel now needed 501 dikasts to be full, ostensibly to make tie-votes impossible (Schol. Dem. 24.9). There was, however, no need for such a measure since the Athenians had long before established a principle that tie votes were in favor of the defendant. The addition of an odd man may consequently attest some formal consideration or look to tradition. The fifty-one ephetai, for instance, may have provided a model.
In any case the basileus gives a signal to the herald, who in turn brings in the prosecutor (with supporters) and the defendant (likewise with supporters). If the court in question is meeting in the Stoa Poikile, there will be dryphaktoi, that is railings between columns, and prosecutor and defendant will enter through a kinklis in those railings. The herald announces the charges and denials. A man is posted at the klepsydra, and the prosecutor begins his address to the judging panel. He is standing on the bêma, and the herald stands next to him as he speaks (Aeschin. 1.79
). He has as much time as it takes a stipulated amount of water to run out of the klepsydra. The man in charge stops the flow whenever a prosecutor is having laws, oaths, or testimonies introduced. Anyone speaking on behalf of the prosecutor does so while the prosecution's water continues to run. There is apparently some constraint on all litigants to keep to the point while speaking, but we do not know what the sanctions were, nor can it be clear from preserved orations, which were surely edited and sometimes augmented after having been used in court, that the injunction was consistently effective.
The defendant follows, speaking under the same rules and with the same time limits. He tries to show how unlikely the accusation against him is. He does not cite precedents except as reminders. A precedent cited in court had no necessary force.
One new control is now available for plaintiff and defendant. If the disputants have come to this trial by way of an arbitration that failed, neither party to the action is allowed to use any law, testimony, witness, oath or the like that was not brought forward at the arbitration or anakrisis. This prohibition was meant to stop litigants from multiplying and changing documents and arguments which had not previously been considered, and thereby changing the actual question to be judged. This innovation also reflects a time when men had come to desire the fixity and precision of a written text, as compared with the fluidity of speech. They recognized, therefore, that there was such a thing as a true text. For if laws, oaths, etc. used in the trial must be the same as those cited at arbitration or anakrisis, two kinds of sameness are necessary. First, the documents must be of the same sort. That is to say, one testimony of X and one oath of Y cannot be replaced by an oath of Z or augmented by citation of a law. Second, the wording of those documents must also be the same. As a control, both parties have access to sealed copies of all the documents, for at the close of a failed arbitration, each contestant deposits copies of all documents in echinoi. These plain, unglazed cooking vessels had lids which could be tied on with string and sealed with wax. The echinoi were then entrusted to arbitrators of the litigant's own tribe and kept against the trial that was to follow. If at the trial one party heard cited some law, testimony, or oath that had not figured in the arbitration, he could challenge his opponent. And a response to that challenge might be for a litigant to demonstrate to the dikastêrion that the seal on his echinos was unbroken. Once he had done that, he had the echinos opened. The texts would be taken out, identified and read aloud, and the dikasts in their deliberations would weigh what they had heard. Such confrontations could establish a basis for a challenge at the end of a trial, an important capability in view of the paramount authority of the dikastêrion. There was no appeal from its judgement, although a successful challenge could lead to a trial in which false witness was charged, and that in turn could lead to a reversal. A second control is the whitened tablet (pinakion) on which a witness may write his deposition (at home, if he likes), and a third is a wax tablet, which a witness might use to make (and erase) notes in responding to challenges. (Dem. 46.11
When the defendant (and his supporters) has used up his water, i.e. said as much as his stipulated time allows, the panel of dikasts receive ballots and exiguous voting instructions. There is no charge to the jury. No time is given for conferring or deliberation.
The manner of voting is different from that described in the preceding period. Sometime after 405 but not later than 345, Athenians began to cast votes at trials using two official ballots, one of which signified “vote for the defendant,” the other, “vote against the defendant.” Both ballots are made of bronze and have the shape of a disk pierced at its center, by a short tube, in one form, and by a short peg in the other. Tube and peg constitute the essential difference between ballots, which in Greek are called accordingly “pierced” and “full.” A pierced ballot represents a vote for the party who speaks first, i.e. the prosecutor or plaintiff. A full ballot is a vote for the defendant. A dikast receives two ballots, one of each sort, and holds them in either hand, thumb over one end of the axle, a finger over the other. When he holds his ballots this way, no one can see which ballot is which.
The herald's instructions amount to no more than a reminder of the unchanging convention that “pierced” is a vote for the prosecutor, “full,” for the defendant. The dikasts take two ballots each, one of each sort, and walk to one of two amphoras, which stand near the bêma at the front of the court (Dem. 19.311
). They drop one ballot into that amphora, and this is the ballot that counts. The other ballot, the one that is not meant to count, goes into the other amphora, which is designated for discards. When all the dikasts have voted, ballots from the validating amphora are emptied out and counted. A simple majority rules. Ties favor the defendant.
In the case of a second vote, as in Plato's representation of Socrates' trial (Plat. Apol. 36-38b
), when alternate penalties are proposed and determined, the voting is again by ballot, a change from the special assessing tablets of twenty years or so earlier. Penalties are exacted immediately after the vote, unless, as in the case of Socrates, special circumstances cause a delay. The Eleven have responsibility for the execution of verdicts, unless the verdict is of a sort that authorizes a plaintiff to employ self-help.
The same dikastic panel may hear a second or even third trial on the same day, so long as there is daylight. In some instances, one whole day was given to a single trial, and a regular formula for the division of such days is fragmentarily preserved by Aristotle (Aristot. Ath. Pol. 67