Seventh Stage (impaneling the judges).—But if the prosecutor appeared in due time, the trial formally began by the impaneling of the judges. This was usually done by the prætor or iudex quæstionis who, at the beginning of the trial, placed the names of the complete panel of jurors, inscribed on white tablets, into an urn, and then drew out a certain number. Both prosecutor and accused had the right to challenge a limited number, as the names were being drawn. The number of challenges allowed varied from time to time.
Eighth Stage (beginning of the trial).—When the judges had been impaneled, the regular proceedings began. The place of trial was the Forum. The curule chair of the prætor and the benches of the judges, constituting the tribunal, were here placed. On the ground in front of the raised platform upon which the prætor and judges sat, were arranged the benches of the parties, their advocates and witnesses. Like the ancient Hebrew law, Roman law required that criminal cases should be tried only by daylight, that is, between daybreak and one hour before sunset. At the opening of the trial, the prosecutor, backed by the subscriptores, and the accused, supported by his patrons and advocates, appeared before the tribunal.
In a modern criminal trial the case is opened by the introduction of testimony which is followed by regular speeches of counsel for the people and the defendant. In those jurisdictions where opening addresses are required before the examination of the witnesses, the purpose is to inform the jury of the facts which it is proposed to prove. Argument and characterization are not permitted in these opening speeches. The real speeches in which argument and illustration are permitted come after the evidence has been introduced. The purpose of these closing speeches is to assist the jury in determining matters of fact from conflicting testimony.
Under the Roman system of trial in criminal cases, the order was reversed. The regular speeches containing argument, characterization, and illustration, as well as a statement of the facts proposed to be proved, were made in the very beginning. Evidence was then introduced to show that the orators had told the truth in their speeches.
It is not practicable in this place to discuss the kinds and relevancy of evidence under Roman criminal procedure. Suffice it to say that slaves were always examined under torture.
The close of the evidence was followed by the judgment of the tribunal.
Ninth Stage (voting of the judges).—The judges voted by ballot, and a majority of votes decided the verdict. The balloting was done with tablets containing the letters A. (absolvo), C. (condemno) and N. L. (non liquet). When the votes had been cast, the tablets were then counted by the president of the tribunal. If the result indicated a condemnation, he pronounced the word fecisse; if an acquittal, the phrase, non fecisse videtur; if a doubtful verdict (non liquet), the words amplius esse cognoscendum. The result of a doubtful (non liquet) verdict was a retrial of the case at some future time.
Such were the main features of the trial of a capital case at Rome at the date of the crucifixion. Such was the model which, according to the best authorities, Pilate was bound to follow in the trial of Jesus. Did he imitate this model? Did he observe these rules and regulations? We shall see.