American juries are “juries of one’s peers.” We rather arrogantly assume ours is the most advanced, democratic form of jury and that the modern jury system is the best justice system history has produced. At least I certainly thought so until I visited the Agora Museum in Athens, Greece, housed on the site of the Stoa where Socrates, Plato, and the other great Greek philosophers gathered to discuss concepts such as justice. Now I think we might learn a few things from the ancient Greeks.  Every citizen of Athens was eligible for jury duty. Juries could be comprised of the entire citizenry of around 5,000 men or as few as eleven (it was always an odd number, though).

The marble slab to the left is the ancient jury-selection machine, which is now on display in the Agora Museum (I took the photo in Sept. 2009).

What looks like marks on the marble slab are actually thin slots carved into the stone. Each row of eleven slots was used to select jurors.

When called to jury duty, each man presented himself at a room in the Stoa where the presiding magistrate’s offices were housed along with the jury-selection machine. There the citizen inserted a small, thin, lead ribbon with his name written on it (the rectangular objects in the lower left) into a slot in the jury-selection machine.

A funnel containing a number of white and black marbles was then inserted into a hole in the upper-left corner of the tablet. The marbles drained from the funnel into the hole and then down the left side. At the beginning of each row of ID tags was a window through which the resulting column of marbles could be seen. Where a white marble came to rest indicated a row of selected jurors. A black marble indicated a row of dismissed jurors.

The discs in the lower right of the picture were used as verdict ballots. There were two types of ballots: the guilty ballot had a small, solid knob in the center; the not-guilty ballot had a small, hollow knob in the center. Jurors carried one of each with them into the trial, which took place in a nearby theater, such as the Theater of Dionysus at the base of the Acropolis. They held the discs in their hands with thumbs and fingers covering the knobs. At the end of the trial, jurors dropped one of the ballots secretly into a verdict box. All verdicts were by a simple majority.

Athenian v American Juries

Initially you may think there is little difference between an Athenian jury and a jury of peers in the Anglo/American tradition, but in fact there are radical differences.

First, Athenian citizenship was strictly regulated: only men born in the Athens polis were entitled to citizenship. You could not become a naturalized citizen if you were born elsewhere, even if you lived in Athens most of your life and were rich as Croesus. Women were not citizens.

Second, there were no other qualifications for serving on a jury. There was no voir dire. No one could be excluded from a jury for any reason other than random chance. A juror could even be an injured party, such as the son of a man who was murdered. In fact, it was assumed that as a citizen you would be knowledgeable and have a stake in the outcome of every trial. Athenians were not concerned about prejudice: if a defendant happened to have made enemies, as far as the ancients were concerned he deserved to be punished.

But perhaps most importantly no citizen was anything but a peer of the accused, so the idea of a jury of one’s peers being a legal right was of no consequence. For there to be peers in a society, there must also be citizens who are not peers. In other words, “a jury of one’s peers” implies a hierarchy. In American justice this hierarchy is two-layered: at the top of the heap is the state and under that is the citizen-juror and defendant. In other words, American justice recognizes that the state has far greater power than any individual, so a just jury is one made up of individual citizens, not of government officials.

In ancient Athens, the state did not have as much power as a modern state. Athenian democracy was direct, not representative. Every citizen voted on everything. There were no Senators, as there were in Rome, for example. Every year, three magistrates (called “archons”) were elected by votes of the complete citizenry. And every year, at least one politician was voted not only out of office but out of the polis by ostracism. There were no judges and no prosecutors for the state. There was no police force. There were no career government bureaucrats. A defendant had no one to fear but the jury.

Rule of Law, Not of Judges

In Athens trials were not presided over by judges. This, too, was an aspect of their direct, radical democracy – and it is one that has great appeal for me.

Instead, the magistrate (or “archon”) responsible for the justice system took depositions and evidence from all parties involved in a dispute, including murders. He determined whether or not there was adequate evidence of a crime or of the identity of the perpetrator. Then he sealed all the evidence in a jar (an amphora, for example) or several jars for safe keeping until the trial. (I imagine these jars were well-guarded in the archon’s office.)

The accused then hired two or three types of representatives (who were not lawyers): possibly a sycophant (aka, a briber), a rhetor (a writer), and an orator. The victim hired only a rhetor and an orator.

Sidebar: Since I’m particularly interested in courtroom rhetoric, I find the role of rhetor fascinating. I might even write a story about an ancient rhetor, come to think of it.

The sycophant was a go-between. He offered the injured party compensation to withdraw the complaint, rather the way a civil litigator offers to pay damages to the plaintiff in a lawsuit.

The rhetors wrote arguments for the parties. The orators delivered the rhetors’ speeches during the trial (they were fluent speakers, rather like actors).

And, of course, the jars were opened at the trial, and the evidence for both sides was presented to the jury.

The beauty of this system is that the jury was the arbiter of the evidence. No judge excluded evidence as prejudicial to either side. No judge excluded evidence as irrelevant. The jury was entitled to know all the prejudicial evidence. And doesn’t that make sense? Isn’t any evidence of guilt prejudicial to the guilty party anyway?

Thus the character of the parties was taken into account by the jury. The jurors likely knew all the parties’ characters, because Athens was a small town in comparison to American cities. A person’s character was expected to have a direct bearing on how the jury interpreted the sworn statements of the parties.

Sidebar: What is the logic of withholding some evidence from a jury when judges always instruct juries to rely on their own judgment of the truthfulness of the witnesses and the validity of the evidence? A jury is told it can disregard all or any part of a witness’s testimony, including expert witnesses. If evidence is admitted by a judge, why should it still be questionable? On the other hand, if juries can evaluate evidence, then why should a judge exclude some evidence?

Of course, the Athenians had no CSI equivalents. Juries relied primarily on the character of the witnesses when evaluating their statements. But neither did Athenian juries have to listen to “junk science” testimony. No judge sat pompously on his bench and admitted into evidence spurious statistics and silly comparisons of hair and fiber samples as “consistent with” or “not excluded from” the defendant’s hair and clothing samples.

But That Was in Another Country, and Besides . . .

Most guilty verdicts resulted either in ostracism or death by hemlock. Athenian prisons held no one but condemned men and then only until they drank the hemlock. And no one but citizens were entitled to a trial. Women and slaves were simply killed if they acted up. Whether or not a defendant was actually guilty of a crime, the verdict always reflected the desires of the citizenry to be rid of the individual. Citizenship was a club from which you could be excluded if they took a dislike to you.

But a few aspects of the ancient system have some appeal to me:

1. Jurors were chosen entirely at random without the filter of voir dire.
2. While the identity of the jurors was public, their votes were completely secret.
3. Judges did not withhold any evidence from the jury.
4. Judges were not appointed for life or popularly elected: there were no judges, only a one-year-term archon.
5. There were no lawyers, because the laws were well understood – requiring no interpretation during a trial.
6. There could be no “hung juries,” because a single vote could decide the case. That meant no mistrials and no retrials at public expense. (I don’t advocate this for America, but the difficulty of reaching unanimous verdicts is certainly a modern problem.)