Giving testimony as a witness was an important act in Roman culture. It could be revelatory of individual character, and Cicero was even able to exploit the notion that proper testimony was a collective feature of Romans in opposition to their various supposedly over- and under-civilized neighbors ( Flacc. 11-12, Font. 21). In part for evidentiary reasons, however, trial testimony has not received the scholarly attention it deserves, particularly from the broadly “rhetorical” point of view. Guérin does much to redress the balance in this monograph on “witnesses and testimony in the Roman courts [mostly, but not entirely the public courts] of the first century B.C.”
In Guérin’s persuasive account, witness testimony is both like and unlike the much better attested and studied part of trials, the oratio continua. On the one hand, witness testimony is not solely concerned with the orator’s logical means of persuasion, but with character and emotion as well. In fact, the character component is particularly interesting because the advocate has to construct both his own and the witnesses’ simultaneously. On the other hand, testimony is obviously different because it is collaborative/competitive and, as Quintilian stresses, unpredictable.
Testimony is also different in being much more poorly attested, both in terms of actual exemplars being preserved and of rhetorical theory. Thus Guérin performs an exhaustive collection and analysis of several types of evidence: our two distorted representations of interrogatio ( In Vatinium and the fragmentary In Cornelium II); scattered testimonia embedded in speeches from other Ciceronian cases; what discussion there is in our rhetorical sources (especially ad Herennium and Quintilian); and judicious use of comparative models, particularly Greek and American. It should be noted that even some of the Latin rhetorical evidence properly falls under this last heading, as in the case of passages that are strictly about the plausibility of a narratio (not testimony) or the auctoritas of the speaker (not witness).
Chapter 1 characterizes the trial witness, particularly by comparison with both the advocates in the process and by other kinds of testis. In contrast to the advocates, the witness needs to maintain a posture of neutrality, and unlike them he is meant to be directly connected to the events about which he testifies by sense-perception. (Though in principle women can be witnesses in certain circumstances, my pronoun here represents both the normal and the normative case.) In contrast to witnesses of, say, a will or transfer by mancipatio, a trial witness is not an invited or necessarily willing participant. The events are normally something that just happened to him. Despite his detachment with respect to the parties, the person of the witness is not independent of his social being more generally. Evaluation of his testimony will depend on evaluation of his character and vice versa. This discussion foreshadows the final chapter on the conversion of testimony to argument in the course of trial.
Chapter 2 discusses the procedures through which testimony is given. In contrast to many other historical systems, the Roman procedure has few formal restrictions either on who may testify or on what may be asked/answered. The constraints, especially in the iudicia publica, lie rather in what kinds of people and what kinds of arguments the jurors are willing to be persuaded by. The chapter also treats some more specialized topics such as the double hearing of reptetundae trials, the opportunity for subpoena in some cases, and the testimony of slaves under torture.
Chapter 3 treats the sources for testimony and for its importance. There is a long argument here that, despite considerable literary reshaping, Vat. and Corn. II do ultimately represent the course of interrogationes. The fact of publishing them despite obstacles of genre, the amount of trial time devoted to witnesses (hypothetically, but plausibly, calculated), and the amount of time even in speeches devoted to discussion of witness testimony, all point to its importance in the trial process.
Chapter 4 moves into more granular detail about how witness testimony was produced. An advocate had to decide how to prepare his own witnesses and what to say in their speeches about all the witnesses that were to come. One important thing that emerges from reading Guérin, but that does not leap out of any individual source, is the fact that every advocate in every case would have had to deal simultaneously with both friendly and hostile witnesses (even ignoring the possibility of mistaking one for the other). For the friendly witness, the advocate must make sure that he is on-message, but not over prepared, prepare him for cross-examination by simulation, and make the interrogatio as seemingly dialogic as possible. For a hostile one he must, for instance, decide between ridicule, refutation, and mere destabilization, between attempting to defeat the witness in detail or scoring a particular point and withdrawing quickly.
Chapter 5 discusses how in practice Roman advocates deal with a problem that has deep philosophical roots. How do the little bits of fact (or at least “fact”) provided by testimony fit into a process of argument and persuasion? Though Guérin does not quite put it this way, the process seems to mark the ultimate victory of the advocate over the witness. The witness and his testimony are evaluated together, for instance, on grounds of internal coherence of the testimony (though excess consistency can be made a sign of conspiracy), its general “plausibility,” or the deportment of the witness. It was perhaps ideal to offer deductive proof that testimony is false, but the more normal case involves an array of signs and probabilities. For instance, witnesses could be impeached both for deficient and for excessive coherence. That is to say, extrinsic proof is thoroughly absorbed into the world of intrinsic proof.
As can be discerned from the above, Guérin’s project is more of a survey than an essay. (It appears to derive from his habilitation.) He systematically investigates and lays out the various steps that different actors might take at each stage of the process. The most general point he makes probably comes in the context of the last chapter. Our corpus of evidence seems not to include any cases of alleged witness error. Witnesses who are wrong are always said to be lying out of some combination of poor character and immediate profit. This suppression of local factual questions in favor of (supposedly) publicly available character is the same thing we see in the treatment of the character of defendants.1 And both phenomena seem to me to mark that ultimate triumph of the orator over the witness.
This book is somewhat reminiscent of Michael Alexander’s reconstruction of Cicero’s opponents in its meticulous combing and combining of limited evidence.2 It is hard to imagine anyone overthrowing Guérin’s account in general; if one wanted to pursue these matters further, I think the most promising line of approach would be to disaggregate some of that evidence and ask whether there are patterned differences in it. In particular, Guérin’s discussion leans very heavily on repetundae cases. Procedural peculiarities of that charge seem to make witnesses more prominent in the surviving record, and it could be argued that the substance of the offense makes it more dependent on “factual” testimony than some others (a possibility that Guérin himself seems to hint at).3 Another possibility would be a more direct comparison of one or both of two phenomena that Guérin discusses but (rightly) puts aside as distinct: character laudationes and written testimony. In particular, it would be interesting to see Guérin’s conclusions put into dialog with Elizabeth Meyer’s work on the authority with which Romans invested certain forms of tablet.4
Guérin’s monograph is thoroughly researched, clearly argued, and offers insights into all aspects of witness testimony in the Republic courts. It will be a valuable contribution to the literature on the Republican courts, on oratory, and Roman rhetoric.
1. See my, “Character in Roman Oratory and Rhetoric,” pp. 165-85 in J. Powell and J. Paterson, edd. Cicero the Advocate (Oxford: Oxford University Press 2004).
2. Michael C. Alexander, The Case for the Prosecution in the Ciceronian Era. (Ann Arbor: The University of Michigan Press, 2003).
3. For instance in my Crime and Community in Ciceronian Rome. (Austin: University of Texas Press, 1999).
4. Elizabeth A. Meyer, Legitimacy and Law in the Roman World: Tabulae in Roman Belief and Practice. (Cambridge: Cambridge University Press, 2004).