There are multiple models for how the functioned. The two main reconstructions are those of the scholars
Theodor Mommsen and Wolfgang Kunkel. One of the main points of dispute between the two models is the scope of the 's customary jurisdiction: did the try all capital crimes or only major ones of a political nature? In Mommsen's view, the public law functioned for all offences on a
summary basis before a magistrate. The magistrate's decision then stood unless the defendant appealed to the people with . After the appeal, an appellate trial then started in an assembly (the if capital) where the people could annul or affirm the magistrate's initial sentence. Kunkel's view instead places the assembly at the centre, where, instead of hearing an appeal, it served as a trial court directly by hearing evidence and making a decision. In this reconstruction, the magistrate serves only as prosecutor. Moreover, magistrates were not
required to prosecute all cases before the but rather passed judgement in a (a hearing where the magistrate deliberated with advisors) against which appeal could only be effected through the plebeian tribunes's power of . The traditional view from Mommsen has some difficulties: most notably, for crime at Rome to be adequately prosecuted with that interpretation of , the would have to meet almost continuously. Kunkel's view instead would have the called only for major political crimes where it would be difficult for a magistrate to easily act against a powerful person; here, the would be called only intermittently, which better accords with the evidence. Under this view, was a right enforced only at the initiative of a plebeian tribune by or after the fact by prosecuting a magistrate who violated it, something which tribunes were disinclined to do for most criminals.
Initiation Trials where the defendant's life or citizenship were in question could only occur before the greatest or most-important assembly (). The Romans viewed this to refer to the
centuriate assembly, though some scholars such as
Emilio Gabba believe that the phrase "greatest assembly" may initially have merely meant that an assembly with good attendance. Actions were started by a magistrate, almost always a junior one: the only ones recorded to have done so were
quaestors,
plebeian tribunes,
aediles, the (only on cases relating to neglect of religious office), and the (only for , or treason, cases). The most common prosecutor was one of the ten annual plebeian tribunes. But since none of those magistrates had the right to summon a centuriate assembly, if such an assembly was required he would call upon the urban praetor or a consul to do so on his behalf. Whatever the assembly or charges, the prosecuting magistrate declared a specific day – referred to with the technical words ("to declare the day") – on which the trial would commence before a specific form of assembly on fixed charges against a certain defendant. The prosecutor also announced the penalty sought, which could range from a fine to death. Penalties were not generally fixed by law but were flexible and at the discretion of the magistrates, and by need for ratification, the people. Charges could brought on essentially any matter relating to the violation of law. Common charges included violation of augural law, waging illegal warfare resulting in defeat, cowardice by a commander, surrender of an army, theft of war booty (), violation of an allied community's rights, violation of tribunician sacrosanctity, or abuse of office. Other charges included the use of magic and (sodomy or adultery). However, magistrates could also prosecute for violation of morals: cowardice during battle, abuse of tribunician veto, or outrageous speech.
Murder,
theft, and
assault were in republican Rome largely private matters; similarly, matters within a household (inclusive of the slaves thereof) were also private matters under the jurisdiction of the relevant . These matters were not generally brought before the assemblies. For upper class defendants, bail was not normally required nor the defendant normally arrested. Instead, he was summoned by herald to the assembly. It was possible to ignore those summons by pleading illness or other excuses but in absence a magistrate could move for a sentence of exile and forfeiture of property to be passed without trial. Lower class defendants, if they were even subject to this form of trial rather dealt with by a magistrate's summary process, could instead be held before trial or sentencing.
Argument, verdict, and The argument occurred over at least three different (meetings of the people), where the presiding magistrate prosecuted and investigated the case in public before the people. Each meeting was separated by at least one day. However, the three preliminary meetings could be waived at mutual assent or, if none of the tribunes objected on the defendant's behalf, by non-enforcement. The prosecuting magistrate could give speeches or hear witness testimony under oath; and, although the prosecuting magistrate had the right to exclude unwanted speakers from his assembly, he customarily permitted the defence substantial time to present material or call witnesses. After a
trinundinum had elapsed from the final speech, a fourth meeting occurred. There are multiple reconstructions as to how (an appeal to the people) could be made in a trial. The traditional reconstruction from
Mommsen is based largely on Ciceronean descriptions in
De Legibus and has the prosecuting magistrate pronounce a sentence which is then immediately appealed against by the defendant to the assembled people for a vote. Alternatively, the vote itself could be the decision which, since it came from the people, could not be stayed or overturned by . In a third possibility, could have had nothing to do with trials at all, being merely a form of appeal against a magistrate's summary jurisdiction (). In this reconstruction, a trial involved merely tangentially and only if the trial itself emerged from a tribune's referral of an appeal heard against a magistrate. The nature of aside, a popular vote necessarily occurred. Storms or other ill omens observed during the vote could be taken as signs of divine acquittal. Votes prior to the in 137 BC were public; between 137 and the of 106 they were secret in non-capital trials; after 106 they were all secret. In capital cases, defendants were generally permitted to flee the city into exile in the moments before a majority for conviction emerged from the . After such flight, a plebiscite was then normally moved to formally exile the defendant. However, in less serious cases with fines, no such flight was possible and a prosecutor could imprison convicts who were unable to pay or make sureties for fines levied.
Veto At any time during the trial the prosecutor could withdraw charges. Plebeian tribunes could also interpose their vetos to prevent decisions which they viewed to be unjust. Such vetos would be applied at the start of a trial, during a specific part, or even against the sentence to be imposed.
Tiberius Sempronius Gracchus, for example, vetoed the sentence issued against
Scipio Asiagenes on the grounds that Scipios' achievements in the
Antiochene War. However, the veto was exercised mainly against procedural faults such as
repeated prosecution of a defendant, prosecution of a magistrate in office, or prosecution of a magistrate on campaign without his consent. == List of ==