This chapter addresses an apparent contradiction in Roman criminal trials between multiple charges and unitary punishment. If the punishment for a defendant who was found guilty was the same whether he was found guilty of one charge or many charges, why were multiple charges common?
I will first attempt to establish that the causa coniuncta, the case involving several charges, was, in fact, common. In order to support this point, I will argue against the belief that many of what I consider to be actual charges were merely character defamation of the defendant, although character defamation of the defendant was typically employed by prosecutors to make a conviction more likely. I will try to make my case not only on the evidence of Cicero's forensic orations, but on the advice provided to orators in the extensive rhetorical literature of the late Republic and early Empire. This rhetorical literature helps us see Cicero as a typical orator, albeit the leading orator of Rome for much of his life, rather than as an anomalous ‘star player’ in the Roman courts.
I hope to show in this chapter that it can be more fruitful to view rhetoric as a means employed by ancient orators, such as Cicero, to implement a strategy that they developed to meet the specific legal environment of a trial, rather than as a way merely to obfuscate the legal issues that the trial needed to address. Rhetoric, I will argue, should not be viewed as an unfortunate but necessary way to confuse the jurors, but rather primarily as a highly developed tool that enabled orators to present the facts and the law to the jurors in a comprehensible and persuasive manner.
Legal history involves an inherent tension between formalism and legal realism. My approach pushes the needle somewhat towards the former and away from the latter, while, I hope, avoiding the pitfalls of an extreme formalist approach.
Prosecutors typically cast many aspersions against the defendant in Roman criminal trials, which we usually know about because the patronus, speaking for the defendant, attempts to refute these aspersions.