Alone among surviving Athenian homicide orations, Antiphon's On the Murder of Herodes resembles a modern murder mystery. Antiphon's client, a Mytilenean named Euxitheus,Footnote ¹ tells a story of a stormy night, an isolated harbour, a drunken murder victim, a missing corpse, misleading bloodstains, forged documents and hints of political intrigue. And, like in any good whodunnit, Euxitheus insists that no one knows who the killer is. Although all the clues seem to point to him, he maintains that Herodes' relatives have manipulated the evidence to make him seem guilty. We do not know whether Euxitheus succeeded in convincing his jurors, but the author of the Life of Antiphon attributed to Plutarch, who says that Antiphon was ‘adept in situations with no way out’ (ἐν τοῖς ἀπόροις τεχνικός), considers On the Murder of Herodes one of Antiphon's finest compositions (832E, 833D).

When Euxitheus first learned the evidence against him, it must have seemed like a situation with no way out. His opponents had tortured a slave until he confessed to helping Euxitheus kill Herodes, and then, according to Euxitheus, they executed him when he recanted. They also produced a letter they claim Euxitheus wrote admitting to the murder. Facing this double-barrelled prosecution, Antiphon crafted a variety of mutually reinforcing arguments for his client. He has Euxitheus provide an alibi for the time of the murder,Footnote ² construct numerous probability arguments for his innocence,Footnote ³ and claim to have no motive.Footnote ⁴ Euxitheus also accuses the prosecution of employing an improper legal procedure against him.Footnote ⁵

In this article I examine another aspect of Antiphon's rhetorical strategy. Developing an insight of Michael Gagarin, I show how Euxitheus uses the vocabulary of visibility and invisibility throughout On the Murder of Herodes to cast suspicion on his opponents' case and to suggest that Herodes' fate is shrouded in mystery.Footnote ⁶ Through forms of φανερός and φαίνομαι and, especially, ἀφανής and ἀφανίζω, Euxitheus consistently presents the prosecution's murder charge as speculation about a mysterious disappearance supported by no visual evidence. To emphasize the visual force that these words have in Greek, I consistently translate them with forms of ‘visible’ and ‘invisible’, even though other English words, like ‘manifest’, ‘apparent’ or ‘disappeared’ might sometimes be more idiomatic. To vary the translations would also obscure the fact that Antiphon uses the same terms in contexts where English speakers would expect different ones. Euxitheus describes Herodes as invisible, since his body was never found, the evidence for murder as invisible, since there were no human bloodstains, the slave who recanted his testimony against Euxitheus as invisible, since Herodes' family executed him, and even the prosecution's argument itself as invisible, since, according to Euxitheus, they have constructed their entire case based on speculation unsupported by witness testimony or visual evidence. Through this vocabulary, Euxitheus places invisibility at the heart of his opponents' case. Taking advantage of the central role of vision in Athenian legal thought and procedure, he maintains that his opponents have failed both to provide visual evidence that he murdered Herodes and to make an argument that lets the jurors ‘see’ the case clearly enough to make a proper decision.

My discussion proceeds linearly through On the Murder of Herodes, beginning with the narrative and ending with Euxitheus' argument about ritual purity and heavenly signs. I show that forms of φανερός and φαίνομαι and ἀφανής and ἀφανίζω function as a leitmotif in the speech, binding together different strands of Euxitheus' case into a unified strategy. From the outset, it is important to note that Euxitheus' separate arguments continue to function on their own at the same time that Antiphon integrates them into a consistent attack on his opponents for basing their case on nothing that can be seen. Antiphon has designed the speech to work on multiple levels in order to persuade hundreds of individual jurors. Some may have been convinced by Euxitheus' alibi, some by the procedural argument, and some by the historical parallels.Footnote ⁷ Many of the jurors may have been convinced by multiple factors at once, probably without even knowing what really persuaded them. One of these factors, and for some jurors perhaps the most important one, was the rhetoric of visibility and invisibility.

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In On the Murder of Herodes, Euxitheus describes how he and Herodes were travelling in the same boat from Mytilene to Aenus in Thrace, when a storm forced them to take refuge in a harbour near Methymna, on the north coast of Lesbos. There, they joined a drinking party in a neighbouring boat. Sometime during the night, Herodes left that boat and never came back. After an unsuccessful search the next morning, Euxitheus continued his journey to Aenus. Herodes' family, however, continued the investigation. After discovering the incriminating letter and forcing the slave to confess, they accused Euxitheus of murdering Herodes and brought him to trial in Athens. They allege he killed Herodes on shore and threw his body into the water with the slave's help.

In his narrative account of the fateful night, Euxitheus emphasizes the lack of visual evidence for what happened to Herodes. Through the use of φανερός and ἀφανής, he presents it as a disappearing-act (Antiph. 5.23):

Euxitheus can say that Herodes' departure from the boat is metaphorically visible to the jurors in the here-and-now of the court, since he will call witnesses to confirm it.Footnote ⁹ What happened after that is unknown; Herodes simply disappeared.Footnote ¹⁰ In the probability arguments that follow the brief narrative, Euxitheus continues to employ similar vocabulary, describing what the prosecution calls a murder as a failure to be seen: ἐπειδὴ δὲ ὁ ἀνὴρ οὔτε ἐν τῇ Μυτιλήνῃ ἐφαίνετο ζητούμενος οὔτ’ ἄλλοθι οὐδαμοῦ (24), ‘Since the man wasn't visible in Mytilene, although he was being searched for, nor in any other place’; ὅτε ἦν ἀφανὴς ὁ ἀνήρ (25), ‘When the man was invisible’; ὅπως δ’ ἠφανίσθη ὁ ἀνήρ, οὐδενὶ λόγῳ εἰκότι δύνανται ἀποφαίνειν (26), ‘But how the man was invisible they can explain with an argument that's not likely at all’; οὐδενὶ τρόπῳ εἰκὸς ἦν ἀφανισθέντα λαθεῖν τὸν ἄνθρωπον (27), ‘In no way was it likely that the man could have become invisible without being noticed’.

As the last two excerpts show, Euxitheus insists that the prosecution needs to account for Herodes' fate in a plausible manner. This changes the terms of the litigation from a question of fact to a question of probability, and he will spend the rest of the speech showing that the prosecution's version of events is unlikely. To this end, Euxitheus emphasizes the lack of visual evidence that a murder even occurred. Although his opponents launched a two-day search for Herodes' body, Euxitheus says, ‘neither an eyewitness nor blood nor any other sign was visible (ἐφάνη)’ (27). When the prosecution finally does find blood, he declares, ‘it was visible (ἐφαίνετο) being the blood of sheep’ (29). Revisiting this argument later in the speech, Euxitheus again declares that ‘no sign nor blood was visible (ἐφάνη) on land or in the boat’ (45). Then, granting for the sake of argument the prosecution's theory of the murder, he imagines the rain, the darkness and the murderer's panic and asks, ‘Do you suppose that any man who was in this kind of trouble would be able to scrape off the marks on land and sponge off the ones in the boat which someone who wasn't beside himself with fear couldn't make invisible (ἀφανίσαι) during the day?’ (45).

Through these forms of φανερός and φαίνομαι and ἀφανής and ἀφανίζω, Euxitheus stresses two aspects of the prosecution's case that he wants the jurors to perceive as weaknesses: they have no dead body and no one has seen any physical evidence that a murder occurred. Neither necessarily implies a flaw in the prosecution: the storm could have carried the submerged body away to Asia Minor, as Annaclara Palau suggests, and Herodes could have been killed with a blow that left no blood.Footnote ¹¹ By making the story about things that were not seen, however, Euxitheus tries to change the way the jurors understand the case. In his telling, the overarching question is not ‘Did Euxitheus murder Herodes?’ but ‘How did Herodes become invisible?’ And, he maintains, no one has seen anything that supports the prosecution's theory that Herodes became invisible because Euxitheus murdered him.

Underlying Euxitheus' insistence that no one has seen any visual evidence confirming that he murdered Herodes is the Athenian tendency to trust visual evidence and eyewitness testimony over other types of proof. Athenians relied on witnesses to establish the truth about past events, taking care to have witnesses for anything that might later be contested, including weddings, confrontations with opponents, summonses, challenges, statements before opponents, wills, paternity acknowledgements and financial transactions.Footnote ¹² Witness testimony was particularly important in forensic arguments. Stephen Todd calculates that in the entire corpus of forensic oratory, there are 6.1 appeals to witnesses for every hundred chapters.Footnote ¹³ Modern scholars debate the exact role of witnesses in the Athenian courts,Footnote ¹⁴ but Athenian litigants simply assert that witness testimony makes a statement true. In Lysias' Against Simon, for example, the speaker says (Lys. 3.20):

This expression is formulaic, and there are similar examples in speeches by other orators, including On the Murder of Herodes.Footnote ¹⁵ Not all witnesses would have wanted the jurors to understand the truth. Some could have intentionally clouded the issues by giving misleading information, and some could have lied outright. None the less, most jurors must have believed that witness testimony was the best indicator of truth; otherwise so many litigants would not have wasted their breath insisting this was the case. As David Mirhady points out, when Strepsiades in Aristophanes' Clouds says that he would hang himself if he had no witnesses in a lawsuit, he is probably reflecting the sentiment of most Athenians.Footnote ¹⁶

Euxitheus' opponents were relying on the support of witnesses, especially the tortured slave, who, although not technically a μάρτυς, had first-hand knowledge of the murder. Euxitheus, however, encourages the jurors to think of them as desperately putting together a case based on speculation rather than witness testimony and visual evidence. Through the frequent repetitions of ἀφανής and ἀφανίζω and negative forms of φανερός and φαίνομαι, he constructs a scenario where the case against him is weak because the necessary evidence is invisible. In making this argument, he takes advantage of both the visual connotation inherent to these words and their more specialized meaning in legal contexts.

In legal contexts, the word φανερός frequently has a connotation of ‘certain because supported by visual evidence’. For instance, Euphiletus, the speaker of Lysias' On the Murder of Eratosthenes, quotes his demand for visual evidence of his wife's adultery: ‘I demand that you make this affair obvious to me.Footnote ¹⁷ I don't ask for words, but that the deed be visible (φανερόν), if it's really going on’ (21). The defendant in Antiphon's first tetralogy uses φανερός in a similar way. He explains the thought-process that would have kept him from assaulting and murdering his enemy, focussing on the two possible outcomes: ‘For if I had become visible (φανερός) from the deed itself, I was finished, but if I escaped notice (λαθών) I knew clearly that this suspicion would come to me’ (2.2.3). Φανερός and λαθών frame the options in visual terms: the defendant is either seen committing the crime or he escapes without anyone noticing him. In the Laws, Plato uses the same phrase ‘become visible (φανερός)’ in a similar context. In the section on laws of sale, Plato's Athenian explains that anyone who has ‘become visible (φανερός)’ selling counterfeit goods must be deprived of his merchandise and beaten. In this context, φανερός clearly means that the merchant's crime has been seen by witnesses, since those who are present and know what is going on are directed to convict him.Footnote ¹⁸

The Athenian property classifications reflect the same connection between the word φανερός and witness knowledge. The Athenians made a division between visible and invisible property, or φανερὰ (more rarely, ἐμφανὴς) οὐσία and ἀφανὴς οὐσία. Φανερὰ οὐσία generally refers to land and ἀφανὴς οὐσία to money and other movables,Footnote ¹⁹ but land can be ἀφανὴς οὐσίαFootnote ²⁰ and movables can be φανερὰ οὐσία.Footnote ²¹ Whether property is φανερά, therefore, depends not on the nature of the property but on the owner's relationship to it.Footnote ²² Property that the owner acknowledges as his own and which is recognized as such by others is φανερὰ οὐσία.Footnote ²³ Witnesses were necessary to establish φανερὰ οὐσία,Footnote ²⁴ since, without them, anyone could claim title to the property.Footnote ²⁵ There is little fifth-century evidence for the distinction between φανερὰ οὐσία and ἀφανὴς οὐσία, but there is no reason to believe that Antiphon and Euxitheus' jurors would not have been familiar with the concept.Footnote ²⁶

We need to interpret Euxitheus' use of φανερός and φαίνομαι and ἀφανής and ἀφανίζω against this semantic background. Through this vocabulary, he repeatedly implies that all the witness testimony and the visual evidence are on his side and that invisibility is at the heart of the case against him.

In Gorgias' fictional Defence of Palamedes, Palamedes uses a form of φανερός to make a similar point to Euxitheus about the importance of witness testimony and visual evidence. He argues that he must be innocent of treason, since, among other reasons, he would have been seen if he tried to let the Trojans into the Greek camp. Palamedes says (12):

Palamedes claims that his treasonous acts would have been φανερά if he had really committed them, since the Greek camp at Troy was filled with potential eyewitnesses. Despite all this constant surveillance, however, no one saw him betraying the Greeks, and so he must be innocent. Euxitheus' point is the same. Instead of categorizing it in positive terms like Gorgias' Palamedes, however, he casts it in negative terms. Where Palamedes says directly that he must be innocent because the evidence against him would be visible if he were guilty, Euxitheus implies that he must be innocent because the evidence against him is invisible.

According to Euxitheus, invisibility not only characterizes things, such as Herodes' missing body and the lack of visual evidence. It also characterizes his opponents' actions. They conveniently make invisible anything that undermines their case, like the slave witness they executed after he recanted his testimony against Euxitheus. He is not visible (ἐμφανῆ) in court, Euxitheus complains, because he is dead (36). Continuing to employ the rhetoric of visibility and invisibility, Euxitheus proceeds to speak of the execution of the slave with forms of ἀφανίζω (37–8):

The ‘earlier statements—the ones he lied about’ are a metonym for the slave, as the rest of the passage shows. According to Euxitheus, the execution of the slave is inherently suspicious, since it is the kind of thing that a criminal would do to protect himself from an informer. Furthermore, by describing the execution as ‘making invisible’, he links it with the body and the physical evidence, which, as we have seen, he consistently describes as invisible. Even though there may have been no link between the lack of a body and physical evidence and the execution of this slave, Euxitheus uses forms of ἀφανής and ἀφανίζω to imply that they are all part of a consistent strategy of concealment and dissembling on the part of the prosecution. He contrasts this strategy with the transparency he claims characterizes his own conduct, since he did not make the slave invisible to prevent him from testifying against him in the first place.

Euxitheus strongly insists on this transparency, noting a second time that he did not make the slave or another witness, this one a free man, invisible, even though he could have (ἠφάνισ’ ἄν, 52). In the matter of the slave, therefore, Euxitheus is twice insistent that his strategy relies on openness rather than concealment, visibility rather than invisibility. This transparency contrasts with the prosecution's conduct not only concerning the slave but also concerning the letter. Euxitheus says that the prosecution tried to use the same strategy of invisibility to destroy the incriminating letter, which he claims they forged, when they realized it contradicted the evidence tortured out of the slave. Since the letter had already been read, however, they could not make it invisible (οὐκέτι οἷόν τ’ ἦν ἀφανίσαι τὰ ἀναγνωσθέντα, 56).

From our perspective, the suggestion that Euxitheus presents a transparent case is ironic. The speech is filled with misleading arguments.Footnote ²⁷ First, he indicates that the delay in charging him with the murder is suspicious, conveniently suppressing the fact that none of Herodes' relatives was present to charge him.Footnote ²⁸ Second, the trustworthiness of his witnesses is doubtful, since they were taking part in a drinking party. Third, some of his εἰκός arguments are clearly irrelevant. Is it really significant that no blood was found for a murder that happened during a rainstorm and may not have involved a wound?Footnote ²⁹ Would anyone have heard Herodes crying out for help over the wind and the rain?Footnote ³⁰ Why would it be more difficult to entice a drunk Herodes than a sober Herodes away from the ship and out into the rain, unless he really was too drunk to walk?Footnote ³¹ As Gagarin notes, ‘It is hard to resist the suspicion that at least part of Antiphon's purpose is simply to deceive or confuse the jurors.’Footnote ³² The rhetoric of visibility and invisibility is part of the same strategy of confusion and deception. By frequently repeating ἀφανής and ἀφανίζω when referring to his opponent's argument, Euxitheus subtly promotes his own argument. What matters is not so much that his own argument is clear, but that he says that his opponent's is unclear. The persuasive effect of this aspect of Euxitheus' performance works on the level of suggestive vocabulary rather than logic.

The contrast between the visibility of Euxitheus' strategy and the invisibility of his opponent's reaches its climax in chapter 59, where Euxitheus directly addresses his prosecutor and accuses him of bringing the case for the sake of financial gain. Euxitheus contrasts their two arguments with forms of φανερός and ἀφανής, saying:

Up until this point in the speech, Euxitheus has used ἀφανής literally for things and people that cannot or could not be seen: Herodes' body, traces of the murder, the executed slave, the letter. Now, he applies it metonymically to the prosecution's entire case, calling it ‘an invisible argument’. The use is perfectly logical: a λόγος which relies on things that cannot be seen must itself be ἀφανής. With the phrase ἐν ἀφανεῖ λόγῳ, Antiphon may also be echoing the chorus in Sophocles' Oedipus Tyrannus. When Oedipus suspects Creon of conspiring against him with Teiresias, the chorus implores him to reconsider. In one version of the transmitted text, they urge him not to dishonour Creon by relying on invisible speech (σὺν ἀφανεῖ λόγῳ) and, in another, they urge him not to take away Creon's right to speak on the basis of an invisible charge (αἰτίᾳ | σὺν ἀφανεῖ).Footnote ³³ Regardless of which reading is correct, the emphasis on the danger of judgement based on invisibility is the same in Sophocles and in Antiphon.

Furthermore, by applying a visual adjective to λόγος, something that is heard and not seen, Euxitheus is exploiting a metaphor common to Athenian forensic oratory: jurors are like eyewitnesses who come to see the facts of a case through the speaker's words. Through words of demonstrating, like ἀποδείκνυμι and ἐπιδείκνυμι, and words of seeing, like ὁράω and ἰδεῖν, Athenian litigants often claim that they ‘show’ things to jurors and that the jurors ‘see’ their arguments. Similarly, through impersonal constructions with φαίνεται and φανερός, they often insist that their claims are ‘evident’. The visual connotation of this vocabulary varies from speech to speech, but, in the context of the Athenian legal system's emphasis on eyewitnesses and visual evidence and in the Greek language, which uses different forms of the same verb for ‘to see’ (ἰδεῖν) and ‘to know’ (εἰδέναι), we should not underestimate the rhetorical significance of comparing a spoken argument to a visual demonstration. Indeed, in Antiphon's second tetralogy, the defendant declares that the jurors' fundamental task is to see (ὁρᾶν; σκεπτέα) the facts of a case through the things that litigants say (3.4.1-2).

One task of a forensic speech, therefore, is to make things metaphorically visible so that the jury can see them for themselves and judge justly. Euxitheus even announces this near the beginning of On the Murder of Herodes, although he uses δηλόω rather than φανερός or φαίνομαι. Poor speakers, he says, may lose their cases even if they speak the truth because they cannot make their accounts clear (οὐ δυνάμενοι δηλῶσαι αὐτά) to the jurors (3). Now, in chapter 59, Euxitheus states that the prosecution has failed in this central task. The jurors cannot visualize his opponent's argument because it is based on things that could not be seen in the first place. In other words, his ἀφανὴς λόγος is pure speculation. Euxitheus contrasts his own argument about the prosecution's intention, which he calls visible (φανεράν).Footnote ³⁴ The claim of visibility is sheer rhetorical bluster, since Euxitheus' argument about his opponent's sycophantic behaviour, even if correct, relies on supposition. By consistently describing his opponent's case with forms of ἀφανής and ἀφανίζω, however, he has prepared the jurors, or at least the jurors susceptible to this type of rhetorical manipulation, to accept his claim that his argument is visually conclusive. Ultimately Euxitheus' claim of visibility relies not on the strength of his own case but on the alleged weakness of his opponents'.

Euxitheus then goes on to declare that, unlike his opponents, he has no intention of drawing conclusions based on what cannot be seen. In his telling, the prosecution's case relies on one certain fact, Herodes' disappearance, and it is perfectly reasonable that the jurors should wish to learn about it: τούτῳ δὲ χρῶνται πλείστῳ λόγῳ οἱ κατήγοροι, ὅτι ἀφανής ἐστιν ὁ ἀνήρ, καὶ ὑμεῖς ἴσως περὶ τούτου αὐτοῦ ποθεῖτε ἀκοῦσαι, ‘My prosecutors use this argument the most, that the man is invisible, and you perhaps desire to hear about this' (64). Euxitheus, however, is unable to satisfy their desire. As an innocent man, he cannot speculate on things he has not seen: οἱ μὲν γὰρ πανουργοῦντες ἅμα τε πανουργοῦσι καὶ πρόφασιν εὑρίσκουσι τοῦ ἀδικήματος· τῷ δὲ μὴ εἰργασμένῳ χαλεπὸν περὶ τῶν ἀφανῶν εἰκάζειν, ‘At the same time that wrongdoers do wrong they also find an excuse for their crime, but if someone hasn't done it, it's difficult for him to make a probable argument about invisible things' (65). Furthermore, there is no need for him to do so. It is sufficient for Euxitheus to establish that he had no motive: ἐν τούτῳ οὖν ἀναίτιός εἰμι, οὐκ ἐὰν ἐξεύρω ὅτῳ τρόπῳ ἀφανής ἐστιν ἢ ἀπόλωλεν ἁνήρ, ἀλλ’ εἰ μὴ προσήκει μοι μηδὲν ὥστ’ ἀποκτεῖναι αὐτόν, ‘I am not guilty for this reason, not if I figure out how the man is invisible or died, but if killing him doesn't benefit me at all’ (66).

In this sentence, Euxitheus explicitly contrasts invisibility and death for the first time. The contrast is subtle. He never suggests that Herodes may just have wandered away, or even that he may have died accidentally by falling into the water when he was drunk.Footnote ³⁵ None the less, he makes clear that disappearance and death are not the same thing. In context, this helps to frame the speaker's entire argument. Herodes may just have disappeared, or he may have died. The prosecution infers a murder from an unexplained disappearance, but, as the ‘or’ shows, one does not imply the other.

Continuing to use the vocabulary of visual clarity, Euxitheus then generalizes from his own situation to the dangers of speculation of all sorts. He speaks in terms of τὸ σαφές, ‘clarity’, declaring that, ‘Many men, blamed for other people's actions, have been executed too soon, before the clarity (τὸ σαφές) of what happened had been known’ (67). He then lists three examples of places where speculation based on appearances, even though logical, led or would have led to a mistake. First, the murderer of Ephialtes was never caught, and it would have been improper to arrest his companions just because they happened to be with him.Footnote ³⁶ Euxitheus keeps the jurors' attention focussed on the relationship between Ephialtes' murder and his own situation, since he notes that Ephialtes' murderers did not try to make the corpse invisible (ἀφανίσαι) because it would have caused suspicion (68). This allows Euxitheus to claim that the prosecution's version of events is unlikely, since, if he really had concealed Herodes' body, he would have had to enlist the help of a potential informer, which would have been foolish. Second, a twelve-year-old slave who murdered his master would never have been suspected if he had not panicked.Footnote ³⁷ Third, nine of the ten Hellenotamiai were once wrongly executed for misappropriation of funds before their innocence was discovered.Footnote ³⁸

This third example is most relevant, because Euxitheus draws a close verbal parallel between it and his own situation. He notes that the Hellenotamiai were executed ‘with anger rather than judgement’ (ὀργῇ μᾶλλον ἢ γνώμῃ) before the true facts became ‘very visible’ (καταφανές) (69). Then, he explicitly warns the jurors not to make the same mistake in his case, using a form of φανερός to speak of the truth of Herodes' death becoming known in the future: καὶ τοῦτ’ ἴσως φανερὸν γένοιτ’ ἂν ὕστερον, ὅτῳ τρόπῳ τέθνηκεν ὁ ἄνθρωπος, ‘Maybe this too might become visible later, in what way the man died’ (71). Euxitheus further underscores the connection between the trial of the Hellenotamiai and his own trial by advising the jurors not to convict him prematurely ‘under the influence of anger and slander’ (μετ’ ὀργῆς καὶ διαβολῆς, 71). If the jurors follow his opponent's ἀφανὴς λόγος, therefore, they will be acting like the judges of the Hellenotamiai, who did not vote according to visual evidence and later came to regret it.

As a Mytilenean on trial in Athens, Euxitheus may have had particular reason to worry about ‘anger and slander’. According to Thucydides, after the Athenians suppressed the revolt in Mytilene in 428, they voted ‘under the influence of anger’ (ὑπὸ ὀργῆς) to execute all adult Mytilenean males and to enslave the women and children (3.36.2). When the issue was reopened for debate the next day, however, the Athenians overturned their previous decision and voted to execute only the leaders of the revolt. Diodotus, whom Thucydides presents as the chief advocate of this revised policy, even emphasizes the dangers of decisions based on anger (ὀργήν), which he calls one of ‘the two greatest impediments to good counsel’ (3.42.1).Footnote ³⁹ It is impossible to know to what extent the memory of the Mytilene revolt may have prejudiced Athenian jurors against Euxitheus,Footnote ⁴⁰ but his opponents clearly tried to implicate his father as one of its leaders. ‘Don't believe the way these men slander (διαβάλλουσι) my father by singling him out’, Euxitheus says (79). Therefore, as Gagarin notes, even though Euxitheus may not have wanted to excite the rage of potentially biased jurors by referring directly to their change of heart in the Mytilene Debate, he may have used the story of the Hellenotamiai as a parallel cautionary tale, emphasizing that ‘anger and slander’ are never good grounds for a decision.Footnote ⁴¹

This is the end of Euxitheus' argument proper. It is followed by a defence of his father,Footnote ⁴² an analysis of the lack of heavenly signs implicating him in the murder,Footnote ⁴³ and a reprise of the procedural argument.Footnote ⁴⁴ Although he never again uses a form of ἀφανής or ἀφανίζω, Euxitheus revisits the theme of visibility and invisibility in his discussion of heavenly signs. He says (82-3):

If he were ritually impure, Euxitheus declares, his attempts at sacrificing would have made this visible. But, since he sacrificed with no trouble, he must not be polluted and so must not have committed the murder. It is yet another instance where visual certainty is on his side and not on his opponents'.

Then, Euxitheus goes on to stress that both the heavenly signs and the witnesses support his case (84):

Although Euxitheus does not use the language of visibility and invisibility here, he finally states explicitly what his use of φανερός and ἀφανής has been implying all along: witnesses support his account and not his opponents'. This sentence is the culmination of the speech's treatment of the charges, as the following sentence, ‘I have defended myself against as many things I can remember from their accusations, gentlemen. I ask you to vote for my acquittal’, shows.Footnote ⁴⁵ As a concluding sentence, it is a subtle summary of the main rhetorical argument: the speaker stresses that his opponents expect the jurors to believe their λόγοι, which he showed twenty-five chapters ago to be ἀφανεῖς, and not τὰ ἔργα. The sentence seeks to reinforce the opinions of the jurors who have already been swayed by the rhetoric of visibility and invisibility. The rest of the speech is aimed primarily at the jurors who are concerned about the finer points of Athenian homicide procedure.

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We do not know whether Antiphon was the first orator to cast doubt on his opponent's case through the rhetoric of visibility and invisibility, or if it was a strategy familiar to other fifth-century litigants. We do know, however, that it must have been effective, since it became an established part of fourth-century forensic strategy, particularly in speeches that emphasize the presence or absence of eyewitnesses. Demosthenes' First Speech Against Onetor is a good example. Demosthenes has accused Onetor and Aphobus of conspiring to prevent him from taking possession of Aphobus' land as partial payment for his inheritance, which Aphobus has already been convicted of embezzling. He maintains that Aphobus has pretended to divorce his wife, Onetor's sister, so that Onetor can claim title to the same land Demosthenes claims, supposedly because Aphobus failed to return his sister's dowry. Demosthenes has eyewitnesses, however, who testify that Onetor and Aphobus are lying, and he uses forms of φανερός and φαίνομαι to emphasize the visual certainty of his argument. In three consecutive sentences, Demosthenes contrasts Onetor's arguments, all of which he introduces with verbs that mean ‘to say’, with the visual facts that support his side of the case, marked with either φανερός εἰμι or φαίνομαι and a participle. He says (Dem. 30.29-30):

By framing the argument in terms of what was seen and what was said, Demosthenes presents himself as an authoritative voice who relies on visual evidence and Onetor as someone who relies only on λόγοι. As in On the Murder of Herodes, the presentation of the argument is as important as the argument itself. Where Antiphon used forms of ἀφανής and ἀφανίζω to cast doubt on his opponents' case, Demosthenes here uses forms of φανερός and φαίνομαι to add credence to his own.

This article has examined some of the subtlest elements of Antiphon's persuasive strategy in On the Murder of Herodes, individual words referring to visibility and invisibility. Through the consistent use of this language, Euxitheus tries to manipulate his jurors into accepting his characterization of his opponents' evidence, tactics and argument as fundamentally invisible, and so untrustworthy. We will never know whether Euxitheus murdered Herodes, but, if he was acquitted, the rhetoric of visibility and invisibility probably contributed to his success.

To conclude, we can hypothesize that this language may have also added another dimension to Euxitheus' procedural argument, which he presents at both the beginning and the end of his speech.Footnote ⁴⁶ The prosecutor has avoided swearing the great oath required of litigants in a δίκη φόνου, because he chose to try Euxitheus in a dicastic court. Had the prosecutor sworn the oath, he would have sworn that he knew Euxitheus murdered Herodes, and he would have called down destruction on himself, his family and his entire household if he were lying. His witnesses would have sworn the same oath.Footnote ⁴⁷ By emphasizing that his opponents have built a case around invisible details, Euxitheus may be trying to influence how the jurors interpret the prosecutor's choice to avoid this severe oath. If he and his witnesses actually knew that Euxitheus had murdered Herodes, they would have sworn it, having no fear of the consequences. Since they do not know what really happened, however, the prosecutor has devised a procedural ploy to avoid swearing and placing his and his witnesses' own lives and families in danger. No one swears such a serious oath based on things that they have not seen. As a result, the prosecutor's avoidance of the oath calls into question how much faith he puts in the invisible details of his own case. Since he does not trust them enough to swear to them, the jurors should not trust them enough to convict Euxitheus.