1 For general discussions see Harry Kalven, Jr., & Hans Zeisel, The American Jury 3–14 (Boston: Lit tle, Brown & Co., 1966); and Henry W. Ehrmann, Comparative Legal Cultures 95–104 (Englewood Cliffs, N.J.: Prentice-Hall, 1976).Google Scholar

2 Ehrmann, supra note 1, at 97.Google Scholar

3 With the exception of denying jurors the right to decide on the law in federal (1835) and state courts (1895). See Samuel Walker, Popular Justice 112 (New York: Oxford University Press, 1980).Google Scholar

4 . Parsons v. Bedford, 28 US. (3 Pet.) 433, 445 (1830).Google Scholar

5 . See, e.g., Wolfram, Charles W., The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 641 (1973).Google Scholar

6 Jerome Frank, Courts on Trial (Princeton, N.J.: Princeton University Press, 1949).Google Scholar

7 . 391 U.S. 145 (1968).Google Scholar

8 . 399 U.S. 78(1970).Google Scholar

9 . 435 U.S. 223 (1978).Google Scholar

10 . 441 U.S 130(1978).Google Scholar

11 . 406 U.S. 356(1972).Google Scholar

12 . 406 U.S. 404(1972).Google Scholar

13 . 413 U.S. 149(1973).Google Scholar

14 . The jury diminution targets of the 1970s-size and decision rule-seem to have been pushed as far as possible at this point, given the vast and vocal opposition that these cases have generated. Cases focus ing on what probably is the next target-abolition of trial by jury in complex civil suits-have not yet reached the Supreme Court. At present there are only contradictory rulings of several circuit courts. For a discussion see Sperlich, Peter W., The Case for Preserving Trial by Jury in Complex Civil Litigation, 65 Judicature 394 (1982).Google Scholar

15 . For a more detailed analysis of the jury cases from Williams to Burch, see Sperlich, Peter W., … And Then There Were Six: The Decline of the American Jury, 63 Judicature 262 (1980).Google Scholar

16 . The magnitude of alarm and apprehension can be gauged by the title of Hans Zeisel's article: … And Then There Were None: The Diminution of the Federal Jury, 38 U. Chi. L. Rev. 710 (1971).Google Scholar

17 Contrary to strong, clear historical evidence and ordinary rules of logic and inference, the Court persuaded itself that there were no binding precedents in respect to jury size and decision rule. See Sperlich, supra note 15, at 265–66.Google Scholar

18 “The relevant inquiry, as we see it, must be the function that the particular feature [size] performs and its relation to the purposes of the jury trial. Measured by this standard, the 12-man jury requirement cannot be regarded as an indispensable component of the Sixth Amendment… we find little reason to think that these goals [of trial by jury] are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12 … And, certainly the reliability of the jury as a factfinder hardly seems likely to be a function of its size.” 399 U.S. at 99–101.Google Scholar

19 Zeisel. supra note 16, at 712.Google Scholar

20 Colgrove, a civil case, was even more difficult to justify than Williams, a criminal case. The Seventh Amendment (but not the Sixth) explicitly refers to the common law.Google Scholar

21 . 413 U.S. at 158.Google Scholar

22 See Sperlich, supra note 15, at 272–74.Google Scholar

23 . 435 U.S. at 239.Google Scholar

24 . 406 US. at 410–11.Google Scholar

25 See Zeisel, supra note 16, at 772.Google Scholar

26 See, e.g., Michael J. Saks, Jury Verdicts: The Role of Group Size and Social Decision Rule (Lexington, Mass.: D.C. Heath & Co., Lexington Books, 1977).Google Scholar

27 A more detailed analysis of the six items can be found in Zeisel, supra note 16, at 714–15, 719.Google Scholar

28 Id. at 715.Google Scholar

29 One commentator wrote: “The willingness of the Court to be persuaded by such flimsy evidence lays bare its lack of concern for the institution of jury trial.” William A. Wick, The Half-filled Jury Box: Is Half Loaf Better Than None? Litigation, Winter 1976, at 11, 14. “Lack of concern” puts it rather mildly.Google Scholar

30 The Colgrove opinion gave evidence that the Court was aware of the criticisms leveled against Williams, e.g., 413 U.S. at 159 n.15.Google Scholar

31 . Colgrove stated: “We had no difficulty reaching the conclusion in Williarns that a jury of six would guarantee an accused the trial by jury secured by Art. 111 and the Sixth Amcndnient. Significantly, our determination that there was ‘no discernibledifference between ihe results reached by the two different-sized juries’… drew largely upon the results of studies of the operations of juries of six in civil cases. Since then, much has been written about the six-member jury, but nothing that persuades us to depart from the conclusion reached in Willaims. 413 U.S. at 158–59.Google Scholar

32 Id. at 159 n.15.Google Scholar

33 . For a discussion of the four new items, see Sperlich, supra note 15, at 271. For general discussions of Colgrove see Zeisel, Hans, Twelve Is Just, Trial, Nov.-Dec. 1974, at 13; Shari Seidman Diamond, A Jury Experiment Reanalyzed, 7 U. Mich. J.L. Ref. 520 (1974); and Lempert, Richard O., Uncovering “Nondiscernible” Differences: Empirical Research and the Jury-Size Cases, 73 Mich. L. Rev. 643 (1975).Google Scholar

34 . See, e.g., Zeisel, Hans & Diamond, Shari Scidman, “Convincing Empirical Evidence” on the Six Member Jury, 41 U. Chi. L. Rev. 281 (1974); and Wick, supra note 29, at 14.CrossRefGoogle Scholar

35 See Sperlich, supra note 15, at 272–73.Google Scholar

36 Id. at 273–74.Google Scholar

37 See Peter W. Sperlich, Trial by Jury: It May Have a Future, 1978 Sup. tt. Rev. 191, 216 n.107.Google Scholar

38 . 435 U.S. at 245.Google Scholar

39 Id.Google Scholar

40 See supra text accompanying note 27.Google Scholar

41 The Apodaca Court declared: “Our inquiry must focus upon the function served by the jury …. In terms of … [the function of the jury] we perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one.” 406 U.S. at 410–11.Google Scholar

42 . 406 U.S. at 362.Google Scholar

43 E.g., Charlan Nemeth. Interactions Between Jurors as a Function of Majority vs. Unanimity Decision Rules, 7 J. Applied SOC. Psychology 38 (1977), and Saks, supra note 26.Google Scholar

44 . 411 U.S. at 138.Google Scholar

45 Id. at 130, n.7.Google Scholar

46 The last characteristic can be tested only when multiple juries hear, deliberate, and decide the same case. Jury experiments have an advantage over actual adjudication; they can use as many juries as they wish.Google Scholar

47 See, e.g., Peter W. Sperlich & Martin L. Jaspovice, Statistical Decision Theory and the Selection of Grand Jurors: Testing for Discrimination in a Single Panel, 2 Hastings Const. L.Q. 75 (1975); and id., Methods for the Analysis of Jury Panel Selections: Testing for Discrimination in a Series of Parlels, 6 Hastings Const. L.Q. 787 (1979).Google Scholar

48 Not everything can be done at once. To study the effects of size variations at the same time would have required doubling the number of experimental juries just to compare two different sizes. More studies, in any case, have been done on size than on decision rule in the past. The book includes a brief evaluation and summary of the size-variation studies. The authors believe that at least these conclusions are warranted: “Six-person juries reach verdicts more quickly than twelve-person juries. Recall of evidence during deliberation is likely to be more complete in larger juries. And, the variety of viewpoints represented on a twelve-person jury is likely to be greater than on a six-person jury” (at 35–36).Google Scholar

49 This affects discussions of evidentiary materials as well as of legal instructions (at 228). While both types of juries had difficulties with legal (verdict) categories, the majority juries requested less assistance. “The lower frequencies of instruction requests under the majority rules doubtless reflect the shorter, less thorough character of deliberation in these juries” (at 90).Google Scholar

50 Without factual foundation for its pronouncements, the Johnson Court, 406 U.S. at 361, declined to believe that when minority jurors express sincere doubts about guilt, their fellow jurors will nevertheless ignore them and vote to convict even if deliberation has not been exhausted and minority jurors have grounds for acquittal which, if pursued. might persuade members of the majority to acquit…. We have no grounds for believing that majority jurors, aware of their responsibility and power over the liberty of the defendant, would simply refuse to listen to argunients presented lo them in favor of acquittal, terminate discussion. and render a verdict. On the contrary it is far more likely that a juror presenting reasoncd argument in favor of acquittal would either have his arguments answered or would carry cnough other jurors with him to prevent conviction. A majority will cease discussion and oulvote a minority only after reasoned discussion has ceased to have persuasive effect or to serve any other purpose. The Apodaca judgment repeats these assertions (406 U.S. at 413). Neither judgment disclosed how the Court knew what a majority would or would not do, or why the Court failed to consider the contrary findings of the many studies of small-group behavior. Indeed, available facts about thc very cases under review raise strong doubts abut the Court's assertions. The Apodaca trial jury, for example, required only 41 minutes to return its 10-of-12 guilty verdict. 406 U.S. at 389. Not all justices joined the Johnson and Apodaca pronouncements. In Johnson, with a much better sense of jury reality and with painstaking attention to relevant empirical investigations, Justice Douglas concluded that there was a diminution of verdict reliability, flowing “from the fact that nonunanimous juries need not debate and deliberate as fully as must unanimous juries. As soon as the requisite majority is attained, further consideration is not required by Oregon or by Louisiana even though the dissident jurors might, if given the chance, be able to convince the majority…. Indeed, if a necessary majority is immediately obtained, then no deliberation at all is required in these States.” 406 U.S. at 388–89 (Douglas, J., dissenting). Justice Brennan's investigations led to the same conclusion. See 406 U.S. at 396.Google Scholar

51 Hastie, Penrod, & Pennington regard as “accurate verdict” the modal verdict of their experimental juries-second-degree murder-which was also the choice of best verdict by a panel of experts (at 59–63).Google Scholar

52 The Johnson and Apodaca Courts, however, asserted that majority juries do not reduce the defendant's constitutional protections. Johnson, 406 U.S. at 363, and Apodaca, 406 U.S. at 41I. Not all members of the Court were willing to support this declaration. Justice Douglas (406 US. at 393–94), Bren-nan (id. at 3%), Stewart (id. at 398), and Marshall (id. at 399–400) vigorously dissented.Google Scholar

53 See, e.g., Kalven & Zeisel, supra note 1, at 43–61.Google Scholar

54 As Justice Douglas pointed out in his Johnson dissent: “The requirements of a unanimous jury verdict in criminal cases and proof beyond a reasonable doubt are so embedded in our constitutional law and touch so directly all citizens and are such important barricades of liberty that if they are to be changed they should be introduced by constitutional amendment…. The vast restructuring of American law which is entailed in today's decisions is for political not for judicial action. Until the Constitution is rewritten, we have the present one to support and construe.” 406 U.S. at 393–94.Google Scholar

55 When a court acts as willfully as the United States Supreme Court in the jury-size and decision-rule cases, it will have to endure an inquiry into its “true motives.” When judgments appear to be justified neither by constitution and precedent nor by cited evidence, and when contrary evidence studiously Is ignored, the question of the hidden agenda becomes unavoidable. In the cases at hand, law-and-order motives are the primary candidates for the “real reasons.” See Sperlich, supra note 15, at 278–79. It is significant to note that Justice White was the leading author of the jury decisions and initiated the size-reduction and unanimity-elimination lines of thought, being the writer of the Williams, Johnson, and Apodaca judgments. Students of the Court have identified Justice White as a frequent and strong opponent of civil liberties and civil rights protections with strong law-and-order inclinations. One recent commentator concluded: “The record of this past term justifies classifying White as the second most conservative Justice on the Court in criminal cases.” Nathan Lewin, White's Flight: The Burger Court's Right-Hand Man, New Republic, Aug. 27, 1984, at 17, 18.Google Scholar

56 This point of view has support even on the bench. Judge Blaine Anderson, e.g., writes: “While we express great confidence in the abilities of judges, no one has yet demonstrated how one judge can be a 511perior fact-finder to the knowledge and experience that citizen-jurors bring to bear on a case. We do not accept… [the premise] ‘that a single judge is brighter than the jurors collectively functioning together.”’ In re United Srates Fin. Sec. Litig., 609 F.2d 411, 431 (1979).Google Scholar

57 . Judge Becker, e.g., wrote: “Trial lawyers and judges … often ponder the question whether judges are superior to juries in arriving at the truth in complex or technical cases. After eight and a half years on the bench, we remain convinced that judges are not.” Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 478 F. Supp. 889, 935 (1979). Judge Gibbons testified that he could not conceive of a case comprehensible to a trial judge, that would not also be comprehensible to a jury. In re Japanese Elec. Prods. Antitrust Litig., 631 F.2d 1069, 1092 (1980). Judge Higginbotham also noted that it is an “unjustified conclusion” that the jury collectively has less ability than the single judge to comprehend (even complex) factual materials. Patrick E. Higginbotham, Continuing the Dialogue: Civil Juries and the Allocation of Judicial Power, 56 Tex. L. Rev. 47. 53 (1977). See also Judge Anderson's comments, supru, note 56.Google Scholar

58 . For other suggestions to improve the work of the jury, see Sperlich, Peter W., Better Judicial Management: The Best Remedy for Complex Cases, 65 Judicature 415 (1982).Google Scholar

59 . The “blue ribbon” jury (composed of jurors with special qualifications relevant to the case at hand) is not likely to be resurrected soon. However, it did have a long and distinguished history in English and American law, being abolished in the federal courts only in 1968. See id. at 416. At least one commentator has argued that blue ribbon juries would still be able to satisfy constitutional requirements. Note, The Case for Special Juries in Complex Civil Litigation, 89 Yale L.J. 1155, 1163–1166 (1980).Google Scholar

60 The authors misread Supreme Court judgments when they write that the Court “has found two aspects of jury procedure to be crucial: the size of the jury and the decision rule or quorum required to render a verdict” (at 5). With the late and minor exceptions of Balkw and Burch, the jury cases from WiNiums on have effectively stated the opposite. The authors also take a rather uncritical view of the adversary system (at 7). They overlook the substantial literature on the defects of adversarial proceedings in dealing with social fact issues. The chief failing of the authors is a blind acceptance of Supreme Court pronouncements. They adopt, e.g., without commentary the Court's highly unusual view of constitutional history that (I) the Constitution is an uncertain guide for the form of the jury trial (at 2). (2) history is an equally uncertain guide (at 2–3), and (3) “Uncertainty concerning the proper form and function of trial by jury is rellected in United States Supreme Court decisions” (at 3). This overlooks the continuity in the use of the common law jury (a unanimous jury of 12) since colonial times, the consistency of Supreme Court decisions prior to Williams, and the fact the current uncertainty, which was entirely produced by Williams and the other recent decisions. The authors' approach to the Court borders on idolatry in passages such as this: “The Supreme Court's analysis of the right to trial by jury is important both because it defines the limits on jury trial procedures in practice and because it contains many insights into the behavior of juries” (at 4). What insights? The authors do note, however, that the Court did not rigorously “evaluate the empirical accuracy of assertions about jury behavior” (at 4). In any case, Inside rhe Jury stands or falls not on its legal analyses, but on its social science components. As wch, it stands secure and tall.Google Scholar

61 The editing by Harvard University Press is a disappointment. Typographical errors, missing words, inconsistent hyphenation, and similar weaknesses abound. There is also the thoroughly annoying practice of citing particulars of case opinions, books, and articles without providing page references (except for direct quotations).Google Scholar

62 Zeisel & Diamond, supra note 34, at 281.Google Scholar

63 . See Sperlich, Peter W., Social Science Evidence and the Courts: Reaching Beyond the Adversary Process, 63 Judicature 280, 282 (1980).Google Scholar

64 For a discussion of a number of ways to support the courts with expert assistance, see id. at 288–89.Google Scholar