Effective Legal Rhetoric
Reading Lysias’ speech On the Murder of Eratosthenes has been especially entertaining for me because I love rhetoric and understand its use in a courtroom setting. I wonder if this speech is required reading in law school. There are many similarities to this speech and the model for contemporary legal trials, at least in the United States. More importantly, what makes this speech classic is not so much the timeless story of a wronged man, his wife and her lover, but the basic pattern each of us uses to relate to others. It is also about the way each of us defends our behavior, justified or not. I think that Euphiletos may even believe what he is saying.
The first clue to rhetoric is in paragraph 1 when Euphiletos addresses his jury as gentlemen, thereby giving them the respect they deserve. He immediately connects himself to them by asking that they judge him as if they were to go through the same experience. He is suggesting that it is really by fate that he is going through this experience and not them. He too is a gentlemen and one of them. This connection he establishes is as a fellow husband, father, landowner, Athenian, Grecian and juror. The last, Juror, is the more subtle and silent connection. He has had the misfortune of being the juror when he killed Eratosthenes and therefore deserves mutual respect. He is laying that beginning foundation.
Euphiletos lets the jury know that he is aware that if they applied the same standards to him as they would to themselves, they would be furious at the acts of murder and consider the penalties of such light. He completely agrees and would expect nothing less. In essence, he is not asking for a fair trial. He is stating that once they understand his circumstances, they will see that there was no need for a trial in the first place, and therefore, no need for a guilty verdict. Euphiletos realizes the severity of the charges against him and is saying he trusts their judgment in their difficult position. (Later, he will explain this understanding of their positions as jurors by insinuating that he too was a juror when he killed, not murdered, Eratosthenes.) Euphiletos continues in paragraph 2 by confirming that he and they are not a unique group, all of Greece would acknowledge these feelings that are not set aside for the weakest or the most powerful members of society. No one is immune to the outrageous acts and violation that he himself has suffered. In fact, there are really two outrageous acts: that violation and also murder as an outrageous act and any gentlemen would come to the same conclusion of the severity of these matters and no one should be pardoned or deserve light penalties if found guilty. He is leading the jury with a double-play of words. But, with his brief description of the events in paragraph 4, he begins the strategy of making it clear to the jury that he is not guilty of murder but of what is allowed by law. He acknowledges that his only chance of survival lies in his explanation of the events as they truly happened – the day he was forced to decide the fate of the accused as they now do.
The first thing that a lawyer or anyone engaged in any form of conversation does is to build a similarity with the other party. This is called establishing a relationship and building trust. It is ironic that the trust is built on attempting to find similarities where there is none or using one similarity to imply deep connection. As old as this form of communication is, it continues to be brilliant and effective. This is because it is the means by which all of us communicate with each other. Once that beginning trust is established, it can be built on. This form of communication can be used honestly or rhetorically but it is always used in an attempt to gain acceptance on some level. For example, Euphiletos can now explain the events of his misfortune in having had to be the one to be the juror. While he doesn’t come right out and say that yet, he is building that relationship with the jurors.
In paragraph 6, Euphiletos turns to his jury as fellow Athenians and in explaining his domestic situation, lets the jurors know that he is really a simple man, loving and building trust with his wife and finally, after the birth of their son, proof they would always be together, giving her full responsibility of the house. He goes on to explain that she was the best of all wives. Later, from paragraph 9 and 10, as Euphiletos explains, he was so loving and trusting that he went beyond the normal domestic conventions of Athens and did what was best for his wife and their child. Theirs was a special relationship. The explanation of their living quarters could be because Euphiletos was embarrassed and needed to explain the situation of why he was upstairs and locked up. But, I do not think this is the case. Every word that Euphiletos speaks in this speech has significant meaning and it is all based on rhetoric for the sake of winning the case. Being embarrassed is not important. But he is attempting modest shyness. What he is trying to show is that he truly believed that the relationship between he and his wife was special, and that at one time it really was. But he foolishly believed that it had remained special. I do not think that his use of the word foolish implies that she was not a proper woman and he was duped from the beginning, but that as he later points out, Eratosthenes seduces or steals that relationship away from them. The implication that his wife was no longer proper is only to say that she was a victim as well and began lying to hide the fact of her seduction. It is important to note her role as victim because as a willing party, there is no theft by Eratosthenes. This is also proven in the fact that Euphiletos did not kill her, only Eratosthenes.
There were, of course, signs that there was something strange going on with his wife. But he did not recognize those signs until later when the maid told him and when he remembered certain events. For instance, when he came home unexpectedly from the fields and after dinner the child became restless and cried, deliberately provoked to do so because Eratosthenes was in the house. Euphiletos was annoyed at his wife’s attention towards him and told her to go make the child stop crying. This is interesting because he immediately identifies with the jurors, all husbands who are tired after coming in from their work, only to be nagged by a woman who demands their attention, even at the neglect of their child. What man would not relate to that situation and show annoyance periodically?
Instead of questioning his wife’s behavior as unusual or suspicious or even loving, he regards it as frivolous woman behavior. He implies to the jury that this is one way a woman can deceive you. Then, in her womanly wiles, she accuses him of wanting the young slave girl, like he has wanted before when he was drunk. He laughs at her and she pretends it’s a joke. He suggests to the jury, what couple has not bantered like this before? He is appealing to the manly jury who understands how women can be sometimes, wanting too much attention or being jealous and then pretending she’s not. This could be frivolous or planned. I note that only a jury of men would even believe the possibility that bantering like this does not have a hidden issue of some kind.
Of course, there is the obvious sign of a guilty party trying to blame the innocent for the same acts of guilt. While these may be a modern consideration for some men, I am not sure it would have been in ancient thoughts. I do not know if the jury would truly believe it then or think he was an idiot.
However, Euphiletos is careful to make sure that his wife’s actions do not speak to her guilt, rather to her seduction and his gullibility. She was never like this before and it was not in her nature. Yet, he speaks of her in such a way as to be able to change his mind about her guilt later if it benefits his trial.
As hindsight, he tells them, he should have seen this for what it was. Euphiletos is doing two things in giving these examples. First, as stated above, he is connecting with the male jury about the frivolous nature of women, something they can all relate to. But more importantly, he is subtly suggesting to them that they need to reconsider the seemingly frivolous actions of their own wives. Euphiletos is putting doubt in the minds of the jurors that adultery can happen to anyone and how easy it is to believe everything is fine while the thief is stealing right from under your nose. However, with this strategy comes the risk that they consider him a simpleton for not recognizing certain obvious signs. This is win-win. Would a simpleton defense work as well?
Euphiletos also plays the naïve husband when in paragraph 14 he notices that his wife was wearing make-up even though her brother had died not thirty days before and she was in mourning. This gives him the first inkling that something isn’t quite right because he states that he left not saying a word, but he had obviously taken note of it at the time. This is interesting to me because actually until a very recent generation, it would be considered inappropriate for a man to ask a woman a question about her make-up and highly unlikely he would notice the personal habits of her anyway. This is frivolous women’s business not subject to man’s inquisition. I think that perhaps this was the case even then. I think that a male jury would understand the shrugging off of another woman frivolity because Euphiletos had already set the stage for that behavior in his wife. Of course, if he truly believed in his wife, perhaps he just assumed she was trying to feel better. Not being a man, it is hard to understand that he could be so gullible. As a woman, I see through the wife’s actions. This makes his seemingly foolishness or naivety hard for me to understand, yet I know it is highly likely and therefore a good strategy to pretend to be that naïve even when he is not.
In paragraphs 15 and 16, Euphiletos is finally confronted with the truth. Who better to give light to the situation than an old woman? While she had no social status, she was sent by a woman scorned. This is classic witnessing. The old woman, whether acceptable or not, would be believable because there is absolutely no reason to doubt her motives. And besides, aren’t all old women honest and doing what is in the best interests of others, especially when they claim not to be busy-bodies? She was sent by a woman who is angry with the betrayal of Eratosthenes in their own relationship. The fact that this scorned woman would have no reason to take her wrath out on Euphiletos or his wife and the fact that seduction is the specialty of Eratosthenes gives the jury a good idea of the character of Eratosthenes. But I note again, as a woman, this is exactly what a scorned woman would do. It would not matter if it were true or not. Even as a true story, according to Euphiletos, the wording he uses elaborates on the story and sets the stage for understanding the complexity of his lack of belief. He just had no clue up until this point! I find myself happy for Euphiletos that he has an all male jury.
Now, Euphiletos is getting a clear picture remembering all of the seemingly frivolous behavior of his wife and he was filled with suspicion, as the husbands on the jury should be by now thinking of the times their own wives did some unusual things. He gets second confirmation by getting the information from their slave girl in a very credible way, threat of beatings and torture in the mill. This is odd on one hand because it actually shows a predetermined ability to harm someone. But, it is a slave girl and a slave girl is not “a someone”. Euphiletos, in essence, is claiming that since he threatened the slave, it is only logical proof that she would tell him the truth. This works to his advantage since she actually does tell him. Now, in paragraph 20, Euphiletos hits home with the jury by beginning the seduction and therefore part of the theft that Eratosthenes committed. Note that he begins to eradicate all fault of his wife to put the blame completely on Eratosthenes as the seducer. The slave girl confirms this. She carried his messages to his wife and it obviously took time before the wife was won over and the fact that his wife went to the temple with Eratosthenes’ mother implies that this was not just a case of adultery but a true relationship that Eratosthenes had deliberately set out to build. Adultery in the most basic sense would just simply be sexual relations without emotional or social attachment. Its threat is not as severe as an actual relationship with a lover. There is an obvious distinction between the two in the time of this speech and that distinction is recognized in today’s society as well.
It is interesting that in paragraph 21, Euphiletos makes it a point to tell the jury that he had made an agreement with the slave girl to keep their conversation quiet. He expected her to show him the wife and lover in the act. He is still unwilling to believe only words but wants clear evidence. He goes on to explain that after their conversation, four or five days passed. At first glance, it appears that Euphiletos is attempting to show that he is a reasonable man who just can’t believe what he is hearing and wants actual proof of adultery and that he did not plan a murder out of anger or revenge. This is evidenced in his nonchalant mention that four or five days had passed. He wasn’t concerned enough about the situation to even accurately remember how many days passed. But, this is an interesting and actually dangerous strategy because he has already claimed creditable witnesses which would perhaps be enough evidence in a courtroom, needing physical proof could be construed as a vengeful premeditated attempt to catch them in the act. And I would question anyone who, after hearing the news he heard, would not know whether it was four or five days that had passed. That is a definite detail that would be remembered. Yet, he is so smooth in the build-up of his naivety defense that this all seems to go unquestioned.
To attempt to complete this argument of lack of premeditation, Euphiletos jumps to the last night, the night in question. He met his good friend Sostratus coming home from the fields and invited him to dinner at his house. Such words as “realizing that his (Sostratus) family would not be home to welcome him” and “he had a good meal” are words that are used to compliment his story of being a considerate friend and good host, an overall nice guy, but more importantly, a good lord over his land, the land that Eratosthenes attempts to steal from him. This story also adds to the normality of the evening, showing he had no intent of planning a murder. Of course, this is spinning a defense because it is evidence that really is not necessary. If he did not know Eratosthenes would be there that evening, it could not have been premeditated for that particular evening. The only purpose of this information is to further his own good character.
Paragraphs 23 through 36 prove to be the thrust of his argument of innocence, but also show the complexity of rhetoric.
First, Eratosthenes came into the house and the slave girl work Euphiletos up immediately and told him. Euphiletos managed to have time to leave and gather up a large group of neighbors, and come back to the house. This was quite a venture considering many were not home and somehow he found that many were out of town. They all gathered torches and made their way to his wife’s bedroom. The fact that Euphiletos knew certain facts about his neighbors, like they were out of town (who told him) is interesting and is just enough detail to make a diligent juror take notice.
Euphiletos confirms that there were some witnesses who actually saw Eratosthenes lying next to the wife, and others who saw him afterwards standing naked on the bed. Euphiletos strikes him, knocking him down, ties his hands behind his back and asks him why he was disgracing his house by entering it. Euphiletos immediately puts the emphasis on Eratosthenes entering his house, not lying next to his wife. Euphiletos has been violated is continuing his theft defense.
Euphiletos refused the financial settlement that Eratosthenes offered because he is claiming the laws of the city will be his executioner. The implication is not just theft of his home and welfare, or offenses against his wife and children, but against all of Athens. Euphiletos has now become the juror for the city of Athens.
One of the oddest but effective defenses is innocence by admission of guilt, which is what Euphiletos does in paragraph27. “These people”, probably the family of Eratosthenes, has evidently claimed that Euphiletos broke the law of safe haven when Eratosthenes is touching the hearth of Euphiletos’ home. This seems like a strange custom but one that guarantees a chance for immunity and fairness. Euphiletos is arguing that he was never at the hearth, or snatched from the street for that matter. Rather, he was on the bed, struck and tied up by Euphiletos. There was no way he could have gotten through so many people, without anything to defend himself. He died not protected by anything. Euphiletos never claims he didn’t kill Eratosthenes; just that he did it within Athenian law. He further justifies his behavior by stating that people who commit crimes do not admit it but make up lies. By stating this, he is in essence claiming no crime was actually committed.
As a matter of fact, Euphiletos reiterates that Eratosthenes confessed his wrong and begged and pleaded not to be killed and was ready to pay compensation for his wrongs. Euphiletos chose not to accept and by his statement that he considered the Athenian law to be of greater authority in paragraph 29. The law by his interpretation states that he actually has a duty to kill him. He is implying that to do otherwise would mean that he was not following the laws of Athens. If he had chosen not to kill Eratosthenes, he implies, he would actually have been breaking the law, or at the very least, not honoring it.
The reader is not given the law to know how it actually reads, but it is clear that Euphiletos uses it for his benefit. He first gives the court of Areopagus authority by precedence. According to Euphiletos, the law says that penalty of death can be imposed in the case of mistresses, who are worth less than wives. He would have read a law relating to wives, but there just isn’t one stronger than the one allowing for penalty of death. This is evidently by the lawgiver’s own admission.
Another law is read regarding the rape of a free man or child and that if found guilty double the damages are owed. However, the penalty for rape of a woman is death. There is the liability at the same rate, but again, what higher penalty is death? Euphiletos seems to be grasping at straws and trying to apply law that may not be appropriate. He states that rapists of women are thought to deserve a lighter penalty than seducers because the latter is condemned to death. But rapists are only assigned double damages. If one hears this quickly and does not have time to digest it, Euphiletos’ argument makes sense. However, it is a play on words claiming the rape of man or free child as rape and the rape of a woman as seduction.
Using this argument does two things. It reconfirms Euphiletos’ claim that by law Eratosthenes was required to die. But it also clears Euphiletos’ wife of any wrongdoing. This is important because equating seduction with rape further gives the impression that this is really an issue of theft not adultery. In paragraph 33, he explains the severity of theft by seduction. He is implying that because seducers corrupt the souls of their victims and make wives more intimate with them than their husbands, they lay claim to the whole house. One issue is that it becomes unclear who the father of the children is and so damages the hereditary economics. But I think the underlying implication is that the seducer is actually in the process of stealing the wife, the children, the house, the land, the financial welfare of the owner, the husband. Basically, his whole life and security is ruined if he allows the seducer to get by with such a thing. That is why Athenian law is so strong against rape of a woman.
In paragraph 34, Euphiletos sums it up by stating that the laws acquit him of wrong doing and actually require him to have killed Eratosthenes. And therefore, he leaves it up to the jury to decide whether they should maintain the law or make it worthless. This is a classic line for the end of any defense case in court. It is obviously rhetoric and all juries know it is rhetoric. Yet, there is a charm in it because it boosts the ego of the jury and it works -- if you have a big smile when you say it.
Overall, this speech of Euphiletos is most predictable. It is famous and I do not know if the predictability is in the human nature of defense or if perhaps this speech has actually impacted the art of rhetoric throughout the following years. I wonder if this speech actually began the art of rhetoric as a recognized art form. All in all it is very effective, but in the end it will boil down to whether the jury likes Euphiletos or not.