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September|October 2005

Trial of the 5th Century B.C.

How old is the trial? The first madame foreperson was Pallas Athena. A history of trials, from the "Oresteia" to the O.J. saga.

By Adam Cohen

AFTER ORESTES KILLED HIS MOTHER, the goddess Pallas Athena was called on to judge him. There were extenuating circumstances to be considered. Orestes' mother had killed his father, the Trojan War hero Agamemnon, and there was a curse on the family. Athena assembled 12 Athenian citizens to help her decide the case. With a tiebreaking vote by the goddess, the jury acquitted Orestes. Athena was so impressed by the jury's work that she prescribed the use of a jury in all future homicide trials.

Aeschylus's "Oresteia," the ancient Greek play that recounts Orestes' trial, was first performed in 458 B.C., making criminal trials one of the longest lived of human institutions. In the more than two millennia since, trials have undergone permutations—from the philosopher Socrates' trial in ancient Athens, to the medieval trials of animals, to hearings in traffic court in contemporary American cities—but they have endured as a feature of nearly every Western society. Sadakat Kadri, a British criminal lawyer, traces this history in The Trial: A History, From Socrates to O.J. Simpson.

His narrative includes many illuminating and entertaining accounts of trials. Laid out chronologically, they demonstrate Kadri's central point: many practices that began as superstition or religious rite, such as the donning of robes by judges or confessions by the accused, evolved over the centuries into established parts of the modern trial. In surveying this durable institution, Kadri says, he hopes to evaluate the degree to which societies conducting trials have "honored or betrayed the ideas for which they claim to stand." Trials generally share ideals, but Kadri argues that these noble ideals generally war with more debased ones. For example, the idea that defendants should be punished only for deliberate actions is counterbalanced by the instinct that some acts are so bad that they should be punished whether intentional or not. The presumption of innocence is in tension with everyone's desire, stated or unstated, to see crimes solved and wrongdoers punished.

TRIAL BY JURY IN THE WEST GOT ITS START IN ANCIENT ATHENS, reflecting Athenian ideals of democracy. For the Romans, whose civilization followed the Greeks, trials were less about ideals of justice or democracy than about enforcing discipline across a far-flung empire. Roman law remained influential for many centuries. But the emphasis on empire meant that judges had wide leeway to convict anyone seen as a threat to Roman rule. Trials were perfunctory, and punishments harsh. As Kadri notes, this stress on punishment is reflected in the most famous Roman prosecution of all: Far less is known about how Jesus was condemned to die than what happened after he was.

As Christianity gained influence in Europe after the fall of Rome, church doctrines had an increasing impact on trials. There was a strong tradition in early Christianity of swearing, and these oaths migrated into the trial process. Defendants could win an acquittal by getting a sufficiently large number of people to swear to their innocence. Europe also reached back to the older tradition of trial by ordeal. Drawing on the pagan worship of elements, trials by ordeal were rooted in the belief that elements like water and fire could determine a man's guilt or innocence. Water was thought to be so pure that it repelled sin, so, unfortunately for the accused, people who floated were thought to be guilty, while those who sank were, sometimes posthumously, declared innocent.

In 1215, priests were formally barred from blessing ordeals by water and fire, and Europe began to move away from the ordeals. A few years earlier, Pope Innocent III had introduced per inquisitionem trials, which allowed judges to conduct their own investigations. This procedure cleared the way for the Inquisition's terrorizing of non-Christians and heretics, ushering in an extraordinary era of church-sanctioned cruelty. But it also helped to replace trials by ordeal with ones in which a judge used methods of reasoning to determine guilt or innocence.

These trials were often far from rational by modern standards. There was a long tradition of trying corpses, dating to the infamous "Cadaver Synod" of A.D. 897, in which Pope Stephen VI exhumed the corpse of his predecessor, Pope Formosus, dressed it in vestments, propped it up on a chair, and put it on trial. Corpse trials continued through the Middle Ages, and were endorsed by a 1591 legal treatise, On the Trials of Corpses, Ashes, Memory, Animals, Inanimate Things and Absent Defendants.

Witches were also put on trial, following a papal bull against witchcraft issued in 1484. In Europe, witch trials became a means of waging war against heresy, but when they spread to the New World with the support of Protestant ministers, they served other purposes. As Kadri notes, the New England trials were often a product of social conflict.

William Penn's trial in 1670, also known as "Bushel's case," was a milestone in establishing the modern trial by jury in England. Penn, a 25-year-old Quaker, was prosecuted for "addressing a tumultuous assembly." His trial was notably unfair and, following common practice, the judge ordered the jury to return a guilty verdict. But the jurors refused. The judge fined them and imprisoned the ones who would not pay, but the jurors did not relent. After they spent 10 weeks in prison, Lord Chief Justice Vaughan agreed to hear their appeal and they were freed. Penn's trial came to stand for the principle that jurors must be allowed to reach their own conclusions about guilt or innocence. By the early 1700s, trials experienced further modernizations. Accused felons were allowed to call witnesses, and defendants were given other procedural protections. America's founders had features of the British trial in mind when they established our criminal justice system.

Many of the most significant refinements in trials came in America in the second half of the 20th century. The Warren Court, in a series of landmark criminal procedure rulings in the 1960s, subjected criminal trials to rigorous review. Relying on the Fifth, Sixth, and Fourth Amendments respectively, the court made trials fairer by extending the right to counsel to defendants who could not afford to pay for a lawyer themselves, giving defendants greater rights against self-incrimination, and excluding unlawfully obtained evidence from consideration.

KADRI'S BOOK COMES OUT AT A CRITICAL TIME FOR THE TRIAL, and it is unfortunate that he does not make more of the travails of American law since September 11. We have come a long way from the reformist Warren Court. The Bush Administration declared that during its war on terror—which has no discernible end—it need not give trials to anyone the president designated an "enemy combatant," including American citizens, or to foreign detainees held at Guantánamo Bay.

In its 2003 term, the Supreme Court handed down two rulings rebuking the Administration's position. Both Hamdi v. Rumsfeld and Rasul v. Bush held that even "enemy combatants" are entitled to some form of proceeding. These rulings may seem at first to be a victory for the trial, but the rubber stamp trials that detainees are being offered evoke the ancient Roman trials, with their outcomes seemingly predetermined. As Kadri's history shows, a trial alone is not enough to ensure justice; trials have served to legitimize top-down control as much as they have honestly sought the truth.

The biggest omission in The Trial, however, is not any particular case, but its lack of a theoretical framework for the ones the author discusses. Kadri gives the impression that he was attracted to his subject more for its rich anecdotal history than for any insight about the evolution of trials through the ages. Yet it is hard not to feel sympathy for Kadri's predicament. The history of trials does not have a clear-cut narrative arc. Nor do trials throughout history fall into neat categories. The Catholic Church's introduction of inquisitorial tactics can be viewed as an advance for the trial as pursuit of truth, or for the cynical use of trials to root out dissent. Depending on whether you focus on poor and legally unsophisticated defendants seeking procedural protections from the Supreme Court or on the trials of white defendants who killed civil rights workers in the South, the second half of the 20th century in the United States was either a period of great advances for justice or of stubborn lack of progress.

Still, the trial's arc through time is not far from the trail of civilization's central values. From the dawn of history, every tribe, nation, and empire has developed its own set of rules for judging people accused of violating its moral order. The system it comes up with reveals its convictions about religion and other sources of authority for values, the power of rulers, and the rights of the individual. In Kadri's telling, this has not been a march of progress. Powerfully and perhaps unwittingly, he makes that point in his subtitle: It is hard to feel a sense of triumph about a progression from Socrates's trial to O. J. Simpson's.

Adam Cohen is a member of the editorial board of The New York Times.

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