Viktor Bérces: Evidence in Criminal Proceedings
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Chapter I. Paradigm shifts in the development of evidence in universal law
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1.2. The “acquis” of ancient Roman law

1.2. The “acquis” of ancient Roman law

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For centuries in the history of ancient Rome, there was no separate, complex court system, nor did the legislature or the law enforcement authorities deal separately with criminal and civil matters. Later, however, the first rudimentary criminal courts appeared, which were specifically designed to try public offences (crimen) (e.g. murder, treason).1

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The monopoly of justice in the Etruscan kingdom was vested in the “rex”, but in the age of the republic the king was forced to share his power with the various state officials (consul, dictator, praetor) and bodies (comita, senatus).

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As a result of the “democratisation” of the judicial system, the People’s Assembly was gradually involved in the decision-making process, and from then on it had two types of powers: firstly, it acted as an ordinary criminal court (comitia centuriata)2 , and secondly, it served as a forum for appeals against the magistrates’ judgments. It follows from this that

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  • the principle of co-arbitration was also introduced into Roman law, to the extent that, in time, appeals were heard by councils;
  • specialisation led to the creation, towards the end of the republican era, of standing committees in the People’s Assembly (quaestiones perpetuae), which were specifically responsible for criminal matters.
 

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Classical procedural principles were also introduced: for reasons of impartiality, the members of the adjudicating councils were chosen by lot, but the competence of these juries – unlike in the Greek model – was limited to the question of determining guilt. Nevertheless, the punishment that could be imposed was specified in Roman law.

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Any free person could prosecute a crime, but unfounded (false) accusations were severely punished by law.

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The jurisprudence has also differentiated over time based on the nature of the offences, accordingly:

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  • crimen and acts “against the public peace” (e.g. trespassing, disturbing the market order): only magistrates could initiate prosecution;
  • the victim was still entitled to be prosecuted for private infringements.3
 

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Publicity, openness, immediacy, free consideration of evidence and the principle of adversarial proceedings were already common requirements in the taking of evidence. In addition, the parties had the right to influence the composition of the jury (panel), with the possibility to challenge certain members of the panel. 4

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By the time of the Dominate, criminal justice had once again become a centralised activity, and this monopoly was reserved exclusively for the Emperor or his delegates.

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Evidentiary procedures, regardless of the period, were based primarily on statements by the accuser and the accused, as well as on witness testimonies. At the same time, it was possible to order forensic examinations, searches or the production of documents. During the period, the ‘ testimony of servants’ was treated separately and its contents could also be taken into account as ‘evidence’.

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It can be said that during the Republic, all the modern principles which are the “pillars” of today’s criminal trials were implemented, such as (1) the publicity of the trial, (2) the free consideration of evidence, and 3. the adversarial procedure. The court’s conviction was usually based on the confession of the accused, which the glossators considered the ‘queen of evidence’ (regina probationum). It was also considered a confession if the accused committed suicide during the trial, fearing punishment, or attempted to bribe the prosecution (accusator). Nevertheless, the court could of course find guilt despite the denial of the accused, and the fact that the accused was caught in the act was evidence of the same weight as a confession.5

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The court was free to consider the testimonies of the witnesses, so the judge was not bound by their social position or their number. At the same time, the court was allowed to consider the credibility of the witness, his relationship with the accuser or the accused, his intelligence or, for example, his public trustworthiness. The court’s assessment was based primarily on the testimony that it could hear directly, with written testimony being considered only as circumstantial evidence. However, a distinction was made between a fact witness and a witness who only had hearsay knowledge of the fact to be proved.6

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It should be noted that the most important principles of witness testimony were developed in Roman law in the most comprehensive way for criminal proceedings (e.g. Digesta), and these statements in court were therefore given special importance. The principle of “one witness is not a witness” also became well known. According to the Code, “As a general rule, a suit should not be brought on the testimony of a single witness, even if he is otherwise a man of distinction and of great merit in the administration of justice or public administration.”7

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In judicial discretion, special account was taken of witnesses who were heard not on the fact to be proved, but on the personality of the accuser or the accused (in Cicero’s court speeches, the so-called general “laudatio” or its opposite is common).

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The court could also take into account circumstantial evidence, but the general practice was that only a large amount of circumstantial evidence in a closed chain could form the basis for a conviction, especially if the accused was in denial.8
1 András Földi – Gábor Hamza: A római jog története és institúciói. [History and Institutions of Roman Law.]. Budapest, Nemzeti Tankönyvkiadó, 1996. 159.
2 Földi–Hamza (1996) ibid. 159.
3 Gönczi–Horváth–Stipta–Zlinszky (1997) ibid. 63.
4 It should be noted that the members of the court were usually members of the Order of the Knights. In Földi–Hamza (1996) ibid. 159.
5 János Zlinszky: Római büntetőjog. [Roman criminal law.] Nemzeti Tankönyvkiadó. 1997. https://romaikor.hu/romai_jog_es_jogrendszer/romai_jogrendszer/romai_buntetojog/a_buntetoperes_eljarasok_romaban/cikk/a__bizonyitas_
6 Zlinszky (1997) ibid.
7 C.4.20.9. In: Zlinszky (1997) ibid.
8 Zlinszky (1997) ibid.
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