In Cicero’s Rome, the rule of law, such as it was, became acceptable in reaction to the lawlessness that had allowed aggrieved parties to strike out physically against their victimizers. There were no official prosecutors, and any citizen could bring criminal charges. If the judges found a prima facia case, it could proceed to trial, which if successful could result in death or other punishment to the accused and an award of his property to the accuser. The defendant could be represented by an orator, who spoke for him and cross-examined witnesses against him.
The greatest of these Roman orators was Marcus Tullius Cicero, known to history as Cicero. Several of his orations in notorious murder cases have been preserved and they make remarkable reading, even two millennia later.
Like all great lawyers, Cicero successfully defended the innocent and the guilty alike, and boasted about sometimes needing to throw “dust in the eyes of the judges,” (119) or basing his argument on “points which look like the truth” (19).
Any criminal lawyer—in the past or present—who claims to represent only the innocent is indeed “throwing dust in the eyes” of the public, because in every just society the vast majority of those charged with a crime are factually guilty. Would anyone choose to live in a society in which the majority of those charged were innocent!
Cicero’s defense of Sextus Roscius for the murder of his father—one of his earliest cases—contains some elements that sound strange, and others familiar, to the modern era. He began with a classic ad hominem argument: that all the other orators in the courtroom, many older and more experienced than him, are “convinced that the charge on which this case is based is an unjust one.” (31) Cicero then offered a “Perry Mason”-type defense that will be familiar to television watchers: he pointed the finger of guilt at others with strong financial motives to kill the defendant’s father. These others were the accusers themselves. This was not a parricide at all. It was a murder for profit, followed by a frame up of the innocent, grieving son. The intended victim was not the man actually murdered, but rather the defendant now on trial:
“Such, then, was the plan of action, the maniacal plot, which they entered upon: with the intention that the man whom they themselves had wanted to assassinate, but could not contrive to, should be murdered by you instead, on their behalf.” (45)
The punishment for parricide was a particularly gruesome form of execution, described by Cicero as: “the most degrading of all possible deaths, with his living body sewn up inside a sack—the penalty for parricide.” The sack, filed also with a live monkey, dog, snake and chicken was then thrown into a running stream. (26)
Cicero’s evidence of the defendant’s innocence and his accuser’s guilt was largely circumstantial and somewhat speculative. The accusers were the first to be told of the murder. They profited from it. The defendant had no motive.
The prosecutor’s speech has not been preserved, so we do not know precisely what his evidence was or what he argued, except for what can be gleaned from Cicero’s speech.
Turning the usual table, Cicero did not ask for sympathy for the accused. Instead, he demanded severity against the real killers, lest anarchy to return to the places of justice:
“In most trials it is the accusers who offer up vigorous appeals for severity. Today it is we, the accused, who make the appeal!…We appeal to you…to punish criminal acts with unswerving determination. We entreat you to be adamant in your resistance to malefactors. And we urge you to take careful note of one point: if you fail to take advantage of this opportunity to make your policy abundantly clear, then we have indeed, beyond any shadow of doubt, reached a point when all the limits set to human greed and malpractice and outrage have broken down. From this time onwards—if you fail to do your duty—the slaughter will no longer be in secret. No, henceforward it will take place here in the very Forum itself, here…in front of your own platform. Judges, the massacre, from now on, will be committed right here in front of your faces, right here among the benches where you are sitting!” (36-37)
Cicero’s emotional arguments apparently persuaded the judges, who acquitted his client. Whether they went after his accuser is not clear, but Cicero pronounced himself satisfied with the result.
He was not as satisfied with the result of his last great case—the defense of King Deiotarus for planning to assassinate Caesar. Cicero’s defense was largely political, since the judge—Caesar himself—was also the purported victim. No verdict was ever rendered, since Caesar himself was assassinated (not by Deiotarus) while the Deiotarus case was under consideration.
Such was the rule of law and the competing rule of power in the days of Cicero and Caesar. But within that conflict were the seeds of our modern legal system, and Cicero represented the rule of law. That is why he continues to be admired so many centuries after his death.
When I teach comparative criminal law, I always point out that there are far greater similarities among criminal justice systems over time and place than there are differences. “Who killed Cock Robin?” is the classic question posed in most criminal cases. How to answer that question is decided by every society. The procedures may vary. The law may be different. The fact finder may be a judge rather than a jury. The burden of proof may be higher. But at its core most societies try to answer that question in a similar manner. Reading the murder trials of Cicero has only reaffirmed this view. Perhaps that is why these old trials seem so familiar to contemporary readers.
(Written by Alan Dershowitz, exclusively for this Gryphon Edition title.)
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