ABSTRACT
Homicide trials formed a distinct category in terms of legal procedure. The Constitution of Athens (7.l) maintains that the only laws of Drakon retained by Solon were those dealing with homicide. Antiphon (6.2) emphasizes the antiquity of the homicide laws and insists that they have remained unchanged. It is conceivable that the laws had been subjected to adjustments between Drakon and the end of the fifth century, when they were reinscribed as part of a general revision of the laws, but there is no good cause to doubt the general impression we have of conservatism in this area of the law. The reluctance to change reflects the Greek conservatism in matters of religion, for homicide pollutes the perpetrator and anyone who comes into contact with him or her. The antiquity of the laws and the Athenian reluctance to meddle with them probably explains the fact that this, the most serious of crimes, was covered by a private action (though for obvious reasons the right to prosecute lay with the victim's family, whereas in ordinary private cases the victim alone had the right to sue) rather than by public action, as one would expect. The concept of public action (of prosecution by ho boulomenos) was created by Solon after Drakon's day. For the reader who wishes to explore homicide law in depth, D.M. MacDowell's Athenian Homicide Law in the Age of the Orators (Manchester 1963), E.M. Carawan's Rhetoric and the law of Draco (Oxford 2001) and D. Phillips' Avengers of Blood: Homicide in Athenian Law and Custom from Draco to Demosthenes (Stuttgart 2008) may be consulted; for the present it will be sufficient to adumbrate some of the distinctive features. The prosecution began with a proclamation in the agora instructing the alleged perpetrator to abstain from a number of religious and social activities, as being unclean (Antiphon 6.35–6, [Demosthenes] 59.9). It proceeded more slowly than in other cases, with three preliminary hearings (prodikasiai) held in three separate months and the trial itself in the fourth. The trials made more extensive use of oaths than other cases, including (uniquely within the Athenian system) a compulsory oath from all witnesses to the effect that the accused had or had not committed the crime. They also had tight rules on relevance. Most strikingly perhaps, they were always held in the open air to prevent the judges from coming under the same roof as a polluted individual. The judicial panels were also distinctive. The most important homicide court, the Areiopagos, consisted of ex-Archons, individuals with administrative and legal experience, and since the panel remained unchanged this effectively constituted an expert panel. The other courts were manned by the ephetai, fifty-one in number; these may have been selected from within the Areiopagos, though this is far from certain. Another distinctive feature is the number of courts trying the same offence. The allocation of cases to courts depended on a number of factors; the status of the victim, the nature of the accusation and the nature of the defence.
