by FR Herrmann · 1994 · Cited by 109 — “Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause.” Virginia Journal of International Law 34, (1994): 481-552. Page 2. HeinOnline

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Boston College Law SchoolDigital Commons @ Boston College Law School0,))#%˜!&,,˜!1)0˜-#./-.’Facing the Accuser: Ancient and MedievalPrecursors of the Confrontation ClauseFrank R. HerrmannBoston College Law School.˜+!’/..*˜#”1Brownlow M. Speer,)),””‘0’,+,.(0&7˜3″‘%’0˜)!,**,+/ !#/$-˝˜..’*’+˜,**,+/.’*’+.,!#”1.,**,+/2′”#+!#,**,+/6′.0,1%&.#!!#/%’0,**,+0,))#%˜!&,,)#!!#-0#0,+,))#%˜!&,,˜!1)0˜-#.10&,.’5#”*’+’/0.˜0%’0,**,+0,))#%˜!&,,)*˜0)#˜/#!,+0˜!0+’!(/54″),3/(#”1˛#!,**#+”#’0˜0′,+.˜#..*˜.,3+),-##.˜!’+!1/#.+!’#+#”‘#2.#!1./,.,+$.,+0˜0)˜1/#Virginia Journal of International Law

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HeinOnline — 34 Va. J. Int’l L. 481 1993-1994Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause FRANK R. HERRMANN, S.l., AND BROWNLOW M. SPEER* 1. lNTRODUcnON1 When Sir Walter Raleigh demanded to meet the witness against him “face-to-face” at his trial for treason in 1603, the English court * Fr. Herrmann is an Assistant Professor of Law at Boston College Law School. Mr. Speer is the chief appellate attorney for the Massachusetts Committee for Public Counsel Services. For their thoughtful reviews of the drafts of this Article, the authors are indebted to Professors Michael A Ansaldi, George D. Brown, and Daniel R. Coquillette of Boston College Law School; Aviam Soifer, Dean and Professor at Boston College Law School; Professor David J. Seipp of Boston University Law School; and John P. McIntyre, SJ .. Professor of Canon Law at St Paul University (Ottawa, Ontario). The authors wish to express their gratitude also to Professor Arthur R. Madigan, SJ., of the Boston College Philosophy Department, for English readings of the Greek passages quoted or cited, and to Mr. Michael E. Coffey of the staff of the International Legal Studies Library at Harvard Law School; Fr. Laurence W. McGrath, librarian of St John’s Seminary (Brighton, Massachusetts); and Mr. David R. Warrington,librarian for Special Collections at Harvard Law School, and his staff, for providing them with many of the texts consulted. Mr. Speer wishes to dedicate his share of this Article to the memory of his son, Andrew (1970-1992). 1. Other than the English readings of the Greek texts provided by Fr. Madigan, all translations in this Article are the work of the authors. English language translations which they have consulted are: of the cited works of Cicero and Quintilian, the translations accompanying the texts in the respective Loeb Classical Library editions; of the Theodosian Code, The Theodosian Code and Novels and the Sirmondian Constitutions (Clyde Pharr trans., Greenwood 1969) (1952) [hereinafter The Theodosian Code]; and of Justinian’s Digest, The Digest of Justinian (1beodor Mommsen & Paul Krueger eds., Alan Watson trans., 4 vols. 1985). Volumes in the series of Monumenta Germaniae historica and Monumenta iuris canonici are cited as MGH and MIC, respectively. Volumes in the series Patrologiae cursus completus, edited and published by J.P. Migne (Series Latina, 221 vols., Paris 1844-1864; Series Graeca et Orientalis, 165 vols., Paris 1857-1886), are cited as Patrologia Latina and Patrologia Graeca, respectively. Volumes in the standard modem edition of the Corpus Iuris Civilis are cited as CIe.

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HeinOnline — 34 Va. J. Int’l L. 482 1993-1994482 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 34:481 rejected his request as having no foundation in the common law.2 Conventional wisdom marks Raleigh’s rejected demand as the starting point of the history of the Sixth Amendment’s tion Clause,3 which guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the nesses against him . “4 It was over the course of the remainder of the seventeenth century that the right of criminal defendants to confront the witnesses against them slowly took root in English jurisprudence.5 In fact, the right of confrontation, in the sense of an accused son’s right to be present while accusers and accusing witnesses are physically produced at trial, reaches back far beyond Raleigh’s trial. The United States Supreme Court recently noted its uity. In Coy v. /owa,6 the Court quoted an English-language sion of Acts of the Apostles (Acts) 25:16 as providing indications that a right of confrontation existed under Roman law. The Roman Governor Festus, discussing the proper treatment of his prisoner, Paul, stated: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face, and has been given a chance to defend himself against the charges. “7 Papal documents prior to 1198 are cited by the number assigned to each in Regesta pontificum Romanorum (photo. reprint 1956) (Philip Jaffe ed., Wilhelm Wattenbach rev., 2 vols., 2d ed., Leipzig, Veit 1885). JK is prefixed to documents to the year 590 edited by Ferdinand Kaltenbrunner; JE is prefixed to documents from the years 590 to 882 edited by Paul Ewald. The symbol JKt indicates that the document is a forgery. See infra notes 122-27 and accompanying text. Decretals of Pope Innocent III are cited with the prefix Po. and the number assigned to each in Regesta pontificum Romanorum (photo. reprint 1957) (August Potthast ed., 2 vols., Berlin, Rudolf de Decker 1874). 2. Trial of Sir Walter Raleigh, 2 T.B. Howell, State 1Hals, cols. 1, 15, 18 (1603). 3. California v. Green, 399 U.S. 149, 156-57, 157 n.10 (1970); id. at 176-78 (Harlan, J., concurring). 4. U.S. Const. amend VI. 5. See 5 John H. Wigmore, Evidence § 1364, at 22-26 (James H. Chadbourn ed., 3d ed. 1974). The decisive case so holding, see 5 id. at 25 & n.52, was Rex v. Paine, 87 Eng. Rep. 584 (K.B. 1696). 6. Coy v. Iowa, 487 U.S. 1012 (1988). 7. Id. at 1015-16. Acts was composed between the years 80 and 90. See Richard J. Dillon, Acts of the Apostles, in The New Jerome Biblical Commentary 722, 723 (Raymond E. Brown et at. eds., 1990). The proceedings involving Paul and Festus took place c. 60. See id. at 762. For an account of the background of the case, see Henry J. Cadbury, Roman Law and the Trial of Paul, in 5 The Beginnings of Christianity, pt. 1, at 297, 299·309 (F.J. Foakes Jackson & Kirsopp Lake eds., 1933).

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HeinOnline — 34 Va. J. Int’l L. 483 1993-19941994] CONFRONTATION Cr.A.USE 483 In Coy, the question for decision was whether a defendant had been denied his Sixth Amendment right of confrontation when a screen was placed in the courtroom to shield alleged child abuse victims from seeing him as they testified before the jury.8 The Court held that this procedure violated the Confrontation Clause because the defendant had been denied his right to a “face-to-face” encounter with the complaining witnesses.9 The dissenting Justices in Coy saw no Confrontation Clause lation because “confrontation” at common law was essentially synonymous with cross-examination of adverse witnesses.1o ever, the Coy majority emphasized a defendant’s right to have accusing witnesses physically produced before him or her. The Court held this right to be a core value of the Confrontation Clause, wholly independent of cross-examination.ll It asserted “that there is something deep in human nature that regards to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’ “12 The Supreme Court in Coy presumed on the basis of Acts 25:16 that the defendant’s right to require the presence of accusing nesses must be ancientP The Court was entirely correct. In fact, a historical inquiry will demonstrate that the justice of bringing accusing witnesses before the accused has been acknowledged for at least 1,500 years. The principle of confrontation, in the sense of the right of defendants to have accusing witnesses produced before them, developed along three main lines, each originating in Roman law. FIrst, legislation of the Emperor Justinian in the year 539 provided the normative foundation of the right of witness confrontation. This norm derived from preexisting practice and was based on the heightened necessity for accurate fact-finding in criminal cases.14 Second, Pope Gregory I emphasized the guarantee of tally fair procedures to an accused person when he applied ian’s legislation in the year 603.15 Fmally, the great pseudoisidorean forgeries of the mid-ninth century initiated a third 8. Coy, 487 u.s. at 1014-15. 9. 1d. at 1019-21. 10. 1d. at 1028-29 (Blackmun, J. & Rehnquist, CJ., dissenting). 11. 1d. at 1017 (citing Green, 399 U.S. at 157). 12. 1d. (quoting Pointer v. Texas, 380 U.S. 400, 404 (1965). 13. See id. at 1015-16. 14. See infra Part III. 15. See irifra Part IV.

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HeinOnline — 34 Va. J. Int’l L. 484 1993-1994484 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 34:481 line of development by creating a powerful defense tool to ward off unfair accusations and unreliable testimony.16 These lines of development came to a halt in the thirteenth tury with the advent on the European continent of inquisitional procedure and the accompanying practice of examining witnesses in secret. However, as this Article will illustrate, even then, outside of the notorious heresy prosecutions, a kernel of face-to-face frontation persisted. II. THE ROMAN LAW BACKGROUND Roman criminal procedure, like that of the United States, was accusatorialP An individual accuser (accusator) generally took the prosecution of a defendant (reus) and bore the burden of proving the charge.1s The testimony of witnesses provided a pal means of proof.19 These and other broad structural similarities to U.S. proceedings,20 however, should not lead to assumptions idealizing Roman criminal justice. Torture of both defendants and witnesses became increasingly common under the emperors,21 and 16. See infra Part VI. 17. See generally Max Radin, Handbook of Roman Law 467-69 (1927) (discussing the character of Roman public and criminal law). 18. See A.H.M. Jones, The Criminal Courts of the Roman Republic and Principate 61-65, 116-17 (1972); Wolfgang Kunkel, Prinzipien des romischen Strafverfahrens, in Kleine Schriften 11, 23, 25 (Hubert Niederliinder ed., 1974). This statement must be qualified by the fact that, from the first century on, the prosecution of criminal cases seems to have been increasingly the function of public officials rather than private accusers. See Mario Lauria, Accusatio-Inquisitio, 56 Atti della Reale Accademia di Scienze Morali e Politiche 304, 329-35, 364-69 (Societa Reale di Napoli, 1933); Ernst Levy, Von den r6mischen Ankliigervergehen, 53 Zeitschrift der Savigny-Stiftung fUr Rechtsgeschichte, Romanistische Abteilung 151, 231-32 (1933) [hereinafter ZRG, Rom. Abt.]: TIleodor Mommsen, Romisches Strafrecht 346-51 (Leipzig, Duncker & Humblot 1899). For a discussion of cases and legal texts illustrating prosecution in the absence of an aCCllsator, see Jehan Dahyot-Dolivet, La procedure penale d’office en droit romain, 41 Apollinaps 89, 95-105 (1968), and for a clear description of non-accusatorial procedure, see Jones, supra at 113-14, 116. The accusatorial principle, however, always remained one of critical significance in Roman criminal justice. See Mariagrazia Bianchini, Le formalitA costitutive del rapporto processuale nel sistema accusatorio romano, 30 Studi urbinati di scienze giuridiche ed economiche 161, 228-29, 274-79 (1961-1962). 19. See Jones, supra note 18, at 71. 20. For a concise summary of the main theoretical similarities, see Radin, supra note 17, at 475 & n.28. For a detailed overview of the Roman law of evidence, see C.A. Morrison, Some Features of the Roman and the English Law of Evidence, 33 Thl. L. Rev. 577, 579-81 (1959). 21. In criminal cases, the testimony of slaves was obtained under torture. See 2 Emilio Costa, Cicerone giureconsulto 147 (2d ed. 1927); 1 Piero Fiorelli, La tortura giudiziaria nel diritto comune 33-34 (1953); A.HJ. Greenidge, The Legal Procedure of Cicero’s lime 491-93 (photo. reprint 1971) (1901). Originally, free persons were exempt from torture. See 1

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HeinOnline — 34 Va. J. Int’l L. 485 1993-19941994] CoNFRONTATION CLAUSE 485 no concept of “equal protection” existed under Roman criminal law. The procedural rights a defendant might have had in any given case depended largely on the accused’s social status and the nature of the charges.22 Nonetheless, Roman criminal procedure consistently demanded that defendants have the opportunity to be present at the ings against them.23 The Romans viewed this rule as a guarantee against any unjust conviction of the innocent. For example, the early third century jurist Ulpian, in his De officio proconsuiis, ing imperial rescripts24 of the preceding century, links the rule directly to the principle that “it is better that the crime of a guilty person remam unpunished than that an innocent person be convicted. “25 Fiorelli, supra, at 38; Greenidge, supra, at 481. However, around the tum of the second century, torture began to be applied to non-slave defendants and witnesses, especially those of inferior social status. See 1 Fiorelli, supra, at 38-39; Peter Garnsey, Social Status and Legal Privilege in the Roman Empire 213-16 (1970); P.A. Brunt, Evidence given under Torture in the Principate, 97 ZRG, Rom. Abt 256, 261 (19&0). By the fourth centmy, the practice was so common that it is frequently referred to in the imperial laws of that period. See Gonzalo Martinez Di’ez, La tortura judicial en la legislaci6n hist6rica espanola, 32 Anuario de Historia del Derecho Espanol 223, 225-29 (1962). 22. See Garnsey, supra note 21, at 95-100. 23. “Roman procedure had at all times a strong objection to condemnation in absence,” though if the defendant contumaciously failed to appear, trial against him might proceed. Greenidge, supra note 21, at 462; see also 2 Costa, supra note 21, at 141-42 (guaranteeing the presence of the accused at civil trials). Proper summoning of the defendant to appear was required. See Mommsen, supra note 18, at 332-33. In the second or third centmy, trial of absent persons, at least in capital cases, came to be prohibited. See Moriz Wlassak. Anldage und Streitbefestigung im Kriminalrecht der ROmer, 184 Sitzungsberichte, Kaiserliche Akadamie der \VlSSenschaften in Wein, Philosophisch-historishe KJasse, Abhandlung 1, at 57-61 (1917) [hereinafter Sitzungsberichte Wien). A “capital” case was one in which the penalty upon conviction was death, forced labor in the mines, or deportation to an island. J.A.c. Thomas, The Institutes of Justinian 334 (1975). 24. The emperor’s power to make law by his constitutiones was recognized from the middle of the second century. See generally H.F. Jolowicz & Barry Nicholas, Historical Introduction to the Study of Roman Law 365-73 (3d ed. 1972) (discussing constitlltiones as a source of Roman law). These constitutiones included his “rescripts” (rescripta), which were written opinions on questions of law presented to him for decision. See ide at 368-70; Tony Honore, Emperors and Lawyers viii (1981). 25. The entire quote reads: The deified [Emperor] Trajan wrote to Julius Fronto that in criminal cases. an absent person should not be convicted. The deified Trojan wrote to Adsidius Severus that no one should be convicted on the basis of suspicions, for it is better that the crime of a guilty person remain unpunished than that an innocent person be convicted. (Absentem in criminibus damnari non debere divus Troianus Iulio Frontoni rescripsit Sed nee de suspicionibus debere aliquem damnari divus Traianus Adsidio Severo rescripsit: satius enim esse inpunitum relinqui facinus nocentis quam innocentem damnari)

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HeinOnline — 34 Va. J. Int’l L. 487 1993-19941994] CoNFRONTATION CLAUSE 487 Further, the requirement that the accuser be present in court along with the defendant appears in the Sententiae attributed to the early third century jurist Paulus: “In a capital case33 no absent person is convicted, nor can an absent person accuse, through another, or be accused.”34 This authoritative formulation3s does not, however, expressly state that the accuser and the accused must be present in Rusticus (211), Code J. (534), in 2 CIC 388 (Paul Krueger ed., 15th ed. 1970) (“When serious criminal charges are alleged, and the defendant is absent, it is not the practice to rush to judgment” (“Cum absenti reo gmvia crimina intentantur. sententia festinari non solet “»; Rescript of Emperor Gordian to Avidianus (Apr. 2, 243). Code J. (534), in 2 CIC, supra, at 369 (“That an absent person cannot be accused of a capital crime is an old rule.” (“Absentem capitali crimine accusari non posse Ł.Ł vetus ius-est”»; Rescript of Emperors Diocletian and Maximian to Aelia Matrona (Sept. 1. 287), Epitome Codicvm Gregoriani et Hermogeniani ‘VlSigothica 10.1 (506), in 2 Fontes iuris romani antejustiniani 656, 664 (S. Riccobono et al. cds., 2d ed. 1940) [hereinafter Fontes iuris] (“That a judgment against the absent and undefended ..Ł lacks any force is a most well-known rule.” (“Sententiam aduersus absentes et indefensos nullas uires obtinere notissimi iuris est”»; Rescript of Emperors Severns and Antoninus Magnus (Caracalla) (1981211), quoted in Marcian, De iudiciis pUblicis bk.2 (211117), Dig. (533). in 1 CIC, supra note 25, at 861 (“Let no absent person be punished; we follow the rule that absent persons ought not to be convicted, for considerations of equity do not permit anyone to be convicted in a case unheard.” (“[N]e quis absens puniatur: et hoc iure utimur, ne absentes damnentur: neque enim inaudita causa quemquam damnari aequitatis ratio patitur.”». For the passage of Marcian in the context of the reconstructed work, see 1 Palingenesia, supra note 25, cols. 675, 678, para. 205. _ Note also that a defendant’s right to be present at trial is regarded as an essential component of the Sixth Amendment right of confrontation: “[o)ne of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.” illinois v. Allen, 397 U.S. 337, 338 (1970) (citing Lewis v. United States, 146 U.S. 370 (1892». 33. See supra note 23. 34. “In causa capitali absens nemo damnatur neque absens per alium accusare aut accusari potest” Julius Paulus, Sententiae 5.5A.9 (211117), in 2 Fontes iuris, supra note 32, at 319, 393. Paulus was a jurist of the early third century whose “reputation in later times and influence were immense.” Jolowicz & Nicholas, supra note 24, at 392. For a concise survey of his works and the basis for the dating of the Sententiae given here, see Henry J. Roby, An Introduction to the Study of Justinian’s Digest at cci-cciii (Cambridge, Cambridge Univ. Press 1884). The Sententiae “are now generally held to have been a collection of passages from different works by [paulus),” Jolowicz & Nicholas, supra note 24, at 392, 457, composed not long before 300 and including alterations made by different authors. See Ernst Levy, Pauli Sententiae vii-viii (photo. reprint 1969) (1945). The words per alium accusare aut in the Sententia quoted here may be an early interpolation designed to stress the necessity of the presence of the accuser as well as the accused at a criminal trial. See W1assak, supra note 23, at 60, 62. With those words removed, the correspondence of the Sententia in question to other expressions of the same principle in early third century legal literature and imperial constitutiones is very close. See supra note 32 and accompanying text 35. The constitutiones of the Emperors Constantine in 327 and Theodosius in 426 declared the Sententiae of Paulus to be authoritative. See Jolowicz & Nicholas, supra note 24, at 452 & nn.5-6; Roby, supra note 34, at Ixxxiv-Ixxxv; Adolphe Tardif. Histoire des sources du droit 43-44 (paris, Alphonse Picard 1890).

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HeinOnline — 34 Va. J. Int’l L. 488 1993-1994488 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 34:481 court at the same time. It was the apparent intention of a late fourth century imperial constitutio to close that gap by denying any effect to an accuser’s statement not made in the presence of the accused: “It is improper for whatever is said against an absent son, by him alone who is accusing, immediately to be considered as true, as if against one who is present and even convicted. “36 This constitutio is particularly significant because it is included in the first official collection of Roman laws,37 the Theodosian Code of 438.38 These statements, by their terms, apply only to a requirement that the accusator, as prosecutor, be present before the defendant. They do not apply to the prosecution’s witnesses. In Cicero’s time (106-43 B.C.E.) and at least through the first century C.E., either the prosecution or defense could produce testimony in writing to the court without producing the witness personally.39 When nesses were present, however, they testified on direct examination and were subject to cross-examination by the adverse party.40 Indeed, Quintilian, in his Institutio oratoria (c. 95), gives extensive advice to practitioners on the conduct of both direct and examination of witnesses in criminal cases.41 Although Quintilian is explicit on the point that written testimony from absent nesses is admissible-testimony “is stated either in writing or by persons who are present,”42-he advises that the fact-finder is 36. “Non oportet in absentem, quasi in praesentem atque convictum, verum statim putari, quidquid ab eo solo dicitur qui accusal.” Rescript of Emperors Gratian, Valentinian, and Theodosius to Florentius (Dec. 20, 384), Code Th. 11.39.9 (438), in 1 Theodosiani libri XVI cum constitutionibus Sirmondianis et Leges novellae ad Theodosianum pertinentes 659 (Th. Mommsen & Paulus M. Meyer eds., 1905) [hereinafter 1 Theodosiani libri XVI]. 37. See Jolowicz & Nicholas, supra note 24, at 464-65. 38. See 1 Theodosiani libri XVI, supra note 36, at 659. 39. See 2 Costa, supra note 21, at 145; Jones, supra note 18, at 71-72; Mommsen. supra note 18, at 411, 432; 2 James L. Strachan-Davidson, Problems of the Roman Criminal Law 115-18 (1912); Salvatore Messina. La testimonianza nel processo pen ale romano, 73 Rivista Penale 278, 299 (1911). 40. See 2 Costa. supra note 21. at 144-45; Jones, supra note 18, at 71; Geib, supra note 26, at 340-41; Mommsen, supra note 18. at 430-31; 2 Strachan-Davidson. supra note 39, at 114-15; Messina. supra note 39, at 297; Giovanni Pugliese. La Preuve dans Ie proces romain de I’epoque classique. in 1 La Preuve 277. 318 (Recueils de la Societe Jean Bodin No. 16, 1964). 41. See Quintilian. Institutio oratoria 5.7.1-32 (c. 95), in 2 The Institutio Oratoria of Quintilian 168-87 (H.E. Butler trans., 1921). 42. “Ea [testimonia] dicuntur aut per tabulas aut a praesentibus.” Institutio oratoria 5.7.1. supra note 41, at 168.

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HeinOnline — 34 Va. J. Int’l L. 489 1993-19941994] CoNFRONTATION CLAUSE 489 likely to give much more credence to the testimony of live witnesses.43 This preference for the testimony of witnesses present in court is clearly reflected in an oft-cited rescript of the Emperor Hadrian (117-138). Once, while sitting as judge,44 Hadrian rejected an attempt to enter written testimony against a criminal defendant: Alexander brought criminal charges against Aper before me, and because he was not proving [the charges] nor producing witnesses [testes] but wanted to use written statements [testimoniis],45 which have no place before me (for it is my practice to examine the witnesses selves), I sent him back to the provincial governor so that he would inquire into the credibility of the witnesses 46 “[T]he Roman law about the evidence of witnesses seems to owe a great deal to Hadrian in person.”47 In fact, the rescript quoted here arguably marks the beginning in Roman legal history of the requirement that accusing witnesses appear personally in court.48 Hadrian’s rescript, which appears to assume that it is for the judge alone to examine the witnesses, may also signal the demise of cross-examination by the parties. Although Quintilian, in his tutio aratoria, treated methods of cross-examination with the sophistication of an accomplished trial practitioner,49 that practice 43. See id. 44. The emperor’s role as judge is described in Honore, supra note 24, at 5-6. Hadrian enjoyed a reputation as an enlightened and conscientious judge. See id. at 9-11. 45. The word testimonia originally signified all means of proof, including the oral testimony of witnesses (testes). See 2 Costa, supra note 21, at 144 & n5. In the rescript quoted here, Hadrian refers to testimoniis as written depositions and testes as live witnesses present to testify before the court. The two terms had come occasionally to be used in this contrasting sense around the time in question. See Fabio Lanfranchi, n diritto nei retori romani 541-42 (1938). 46. “Quod crimina obiecerit apud me Alexander Apro et quia non probabat nec testes producebat. sed testimoniis uti uolebat. quibus apud me locus non est (nam ipsos interrogare soleo), quem remisi ad prouinciae praesidem, ut is de fide testium quaere ret . . . .” Rescript of Hadrian to Junius Rufinus (117/38), quoted in Callislratus, De cognitionibus, bk. 4 (1981211), Dig. 225.3.3 (533), in 1 ere. supra note 25, at 328. For the passage of Callistratus in the context of the reconstructed work, see 1 Paliogenesia. supra note 25, cols. 81, 88, para. 28 § 3. 47. Honore, supra note 24, at 9. 48. See Pugliese, supra note 40, at 320-21; Ugo Zilletti, Sui valore probatorio della testimonianza nella “cognitio extra ordinem,” 29 Studia et documenta historiae et iuris 124, 134-37 (1963). Inferior judges, however, were not bound to follow the Emperor’s example. See Messina, supra note 39, at 299. 49. See Quintilian, Institutio oratoria 5.7.22-31 (c. 95), supra note 41. at 180-87.

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HeinOnline — 34 Va. J. Int’l L. 490 1993-1994490 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 34:481 disappears without comment or explanation in the surviving temporary legal sources. Nonetheless, the Romans appear to have considered the two other elements of the modem right of tation as significant components of their criminal procedure: the right of a defendant to be present at trial and the right to encounter an accuser personally in court. III. JUSTINIAN’S NEW CONSTITllTIO ON WITNESSES One of the major events in the Western legal tradition is the mulgation of the Emperor Justinian’s Code in 534. This document, along with Justinian’s earlier Digest and Institutes, collected and codified the entire corpus of Roman law then in force.5o It is generally accepted that, by the time of this codification, the usual practice required witnesses to be personally present in court to give their testimony in the presence of the adverse party.51 For example, a mid-fifth century note in a summary of the Theodosian Code of unknown authorship52-perhaps a compilation of a law teacher’s notes53-states unequivocally: “Whatever statements may have been made against an absent person are of no effect. “54 Justinian’s Code seems to assume that witnesses testified before the adverse party. For instance, Code J. 4.20.19 set time limits within which witnesses summoned to testify in any case had to be examined.55 But nowhere did the Code expressly mandate the presence of witnesses in criminal cases, or assure a defendant the right to be present when a witness testified. 50. See generally Jolowicz & Nicholas, supra note 24, at 478-96 (discussing the construction of the Code, Digest, and Institutes). Both the Digest and the Institutes were promulgated in 533. See id. 51. See Geib, supra note 26, at 631-33; Max Kaser, Testimonium, in 9A Paulys EncycIopiidie der classischen Altertumswissenschaft cols. 1021, 1059-60 (Wilhelm Kroll & Karl Mittelhaus eds., 1934); Messina, supra note 39, at 299. See generally 2 M.A. von Bethmann-Hollweg, Der Civilprozess des gemeinen Rechts in geschichtlicher Entwicklung 276-79 (Bonn, Adolph Marcus 1865) (discussing the historical development of civil law). 52. This summary is printed in Carlo Manenti, Antiqua summaria codicis Theodosiani. 3 Studi Senesi 259 (1886), 4 Studi Senesi 141 (1887), and 5 Studi Senesi 203 (1888), and extensively analyzed in Detlef Liebs, Die Jurisprudenz im spatantiken Italien 177-88 (1987). Liebs deduces its place of origin to be one of the cities of Sicily. See id. at 179. 53. See Liebs, supra note 52, at 182. 54. “[l]n absentem quaecunque dicta fuerint non ualere.” Note on Code Th. 11.39.9 (c. 450), in Manenti, 5 Studi Senesi, supra note 52, at 222. The provision of the Theodosian Code here summarized is the imperial constitutio of 384 of the Emperors Gratian, Valentinian, and Theodosius quoted in pertinent part supra note 36 and accompanying text. 55. See Code J. 4.20.19 (534), in 2 ClC, supra note 32, at 160 (incorporating the constitutio of Emperor Justinian of Mar. 21, 530).

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