1 The Hon. Lee P. Gagliardi was the judge, John R. Wing, chief counsel for the government, Peter E. Fleming, Jr., chief counsel for John N. Mitchell, Walter J. Bonner, chief counsel for Maurice Stans.Google Scholar

2 A few days after the trial had ended, the New York Times published an article, How Mitchell-Stans Jury Reached Acquittal Verdict, by Martin Arnold, May 5, 1974, at 1, col. 5. The piece was based on interviews with some of the jurors. The article, as far as we were able to ascertain, has remained uncontradicted.Google Scholar

3 It lasted ten weeks.Google Scholar

4 The use of the term “for cause” is sometimes limited to excuses for actual or expected prejudice; we use the term here in its broadest application to all excuses based on a specific cause, be it prejudice or hardship, in contrast to peremptory excuses, which do not require a “cause.”Google Scholar

5 The error is curiously reminiscent of another faulty random selection, that of the first military draft lottery of 1971, where not the first letter of the alphabet but the first months of the calendar year of birth received more than their share of low draft numbers; the names were taken from the top of the heap under the false assumption that it was well mixed. Cf.Stephen E. Fienberg, Randomization and Social Affairs: The 1970 Draft Lottery, 171 Science 255 (1971).CrossRefGoogle Scholar

6 Rule 24 (b) of the Federal Rules of Criminal Procedure entitles the defense to 10 peremptory challenges. As a rule, multiple defendants are deemed a single party for purposes of challenges. The court, however, in its discretion, may allow each defendant 10 challenges, which it did in the present case to counteract adverse pretrial publicity (U.S. v. Bonanno, 177 F. Supp. 106 (1956)). The rule allows 6 challenges to the government. When the judge announced his intention to allow 20 challenges to the defense, the prosecution argued that the disparity between 6 and 20 challenges could not be justified and would predetermine the outcome of the case. Thereupon, apparently in an effort to secure the 20 challenges for its side, the defense offered to see the government challenges increased to 8–to which the court agreed.Google Scholar

Rule 24 (c) entitles both sides to three peremptory challenges if, as in this case, six alternate jurors are to be selected.Google Scholar

7 Twelve jurors, 6 alternates, and (23 + 11 =) 34 potential challenges.Google Scholar

8 The difficulties in obtaining some of these data underscore the need for research exemptions from statutes such as 28 U.S.C. sec. 1867(f) (1970), which forbids disclosure of the “contents of records or papers used by the jury commission or clerk in connection with the jury selection process …“until after a certain time. The statute's clear purpose is to prevent interested litigants from learning prematurely the identity of potential jurors. Eventually, at the suggestion of the jury commissioner, Thomas E. Andrews, to whom we are greatly indebted, a solution was worked out that gave us part of what we needed: the clerk's office, on our instructions, compiled some of the needed statistics for groups of jurors, thus avoiding information about individuals.Google Scholar

9 The reason we included this statistic will become apparent later on (infra p. 167).Google Scholar

10 See Arnold, supra note 2.Google Scholar

11 Harry Kalven, Jr., & Hans Zeisel, The American Jury, table 139, at 488 (Chicago: University of Chicago Press, 1971).Google Scholar

12 We sent to Mr. Choa (and to the judge, government, and defense) galley proofs of this article with the invitation to comment and received a letter from him on his role during voir dire, trial, and deliberation. We wanted to publish it and so informed Mr. Choa. However, he insisted that we not publish his letter either in full or in part. Of course, we abide by his decision. Mr. Choa's comment explicitly contradicts our narrative only once: he reports that the voir dire transcript we rely on is inaccurate with respect to his answer to one question. In some other respects the letter provides a different perspective on certain events, and we have reflected that additional perspective as far as it seemed appropriate to do so.Google Scholar

13 The other had a father who had been a neighbor of the judge.Google Scholar

14 The New York Times (with columns and editorials), Newsweek, and New York Magazine; he had watched the Watergate hearings (he deposed that he had seen about 60 percent of Mitchell's and Stans's testimony) and was familiar with the names of Kalmbach, Sloan, Magruder, and Ehrlichman.Google Scholar

15 Here we follow the uncontradicted New York Times report (supra note 2) based on, among other interviews, a conversation with Mr. Choa.Google Scholar

16 Neither judge nor prosecutor knew of these goings-on before they learned of them from the Times report. They interestingly enlarge the inventory of unexpected relationships which sequestration of a jury may engender.Google Scholar

17 From the newspaper reports and from a stimulating panel discussion at St. John's Law School in New York in which Mr. Fleming (see note 1 supra) and the senior author took part. We asked whether we could have a copy of the survey, were promised one, but never received it.Google Scholar

18 The use of public opinion surveys in support of a motion for change of venue is an established tradition. The first effort of this kind was made in the Scottsboro trial, when Elmo Roper, one of the early practitioners of the craft, conducted such a survey. The courts there, as later, held that proof of a large majority of prejudiced potential jurors is not by itself a cause for a change of venue, as long as there remains a sufficiently large reservoir of unprejudiced panel members from among whom an impartial jury can be selected.Google Scholar

19 Science: Threatening the Jury Trial, Washington Post, May 26, 1974, sec. C, at. 3. One of the present authors happened to express a different view on that same day on the Op-Ed page of the New York Times. Hans Zeisel, Mitchell-Stans Judged, sec. E, at 15, col. 3. Thanks are due to Howard Goldberg of the New York Times for having asked for that piece, thereby sparking an effort that led to the present study.Google Scholar

20 Under a grant from the National Science Foundation, with the cooperation of three federal judges, a series of cases was tried in the presence of three juries: the real jury and two experimental juries. The first experimental jury, the “English” jury, was composed of jurors chosen at random from the jury pool and seated without being questioned by either the court or the attorneys. The second experimental jury consisted of the jurors who had been challenged peremptorily by either the prosecution or the defense. The attorneys submitted their challenges on specially provided forms so that the jurors did not learn which side had excused them.Google Scholar

During the trial, all three juries were present in the courtroom throughout the trial; they were removed from the courtroom whenever the real jury was sent out-, and they were paid the standard juror fee by the courts. At the end of the trial, each jury went to its own deliberation room and deliberated until a verdict was reached. If any jury had a question on a point of law during deliberation, the judge answered it. In short, the experimental juries were treated as nearly as possible as though they were real juries. And further, the judge impressed upon them the importance of their job in a special session before the case began. The only differences were: (1) the experimental jurors knew that their verdict would not decide the case; (2) they sat in the spectators' seats rather than in the jury box; (3) each experimental juror filled out a brief questionnaire before deliberations indicating his verdict preference at that point; and (4) the deliberations of the experimental juries were tape-recorded.Google Scholar

Thirteen criminal cases lasting from several hours to three weeks, with offenses varying from draft evasion to conspiracy and extortion, were tried in this manner.Google Scholar

21 These experiments were conducted by Professor Fred L. Strodtbeck to whom we are indebted for table 4.Google Scholar

22 It would be interesting to learn more about the special circumstances under which lawyers are able to make good predictions, and also whether some lawyers are better at that job than others.Google Scholar

23 Record at 1194, 1195.Google Scholar

24 Record at 960, 961. Nothing, incidentally, in the record indicated that the government had any such outside information on the prospective jurors. Mr. Fleming reports that this outside information did not come from any systematic search on the part of the defense but was brought to him by two reporters.Google Scholar

25 In the Berrigan trial, it seems, the lawyers based their challenge strategy on a formal system of according each juror “points” for his survey profile for the specific information and for the intuitive impression he made on the lawyers. Cf. Jay Schulman et at., Recipe for a Jury, Psychology Today 37 (May 1973).Google Scholar

26 The replacement expectations from such a limited reservoir of prospective jurors are decidedly different from what these expectations would be if the replacement were to come from the general jury pool. The difference is somewhat analogous to what statisticians call sampling with and without replacement.Google Scholar

27 Especially since Mr. Choa's political views, according to the New York Times reporter (supra note 2) had remained no secret among his friends and associates. One of these acquaintances described his position as “to the right of Ivan the Terrible.”Id. at 41, col. 3. Mr. Fleming reported in a telephone conversation that no such inquiry was made; what tipped him off and made him want Mr. Choa as a juror, Mr. Fleming reports, was Mr. Choa's remark about the political scene: “I feel that this is a case where … the, you might say, administration are powers on one side and members, former members of the administration, are powers on the other side.” Record at 329.Google Scholar

28 The French name seems to mean “see them talk” but in fact means “truth talk,”voir being a corruption of the Latin verus.Google Scholar

29 In the absence of the judge, counsel would agree on any challenges “for cause” and thereby considerably expand the number of peremptory challenges that the law made available to them.Google Scholar

30 I once asked the late Chief Justice, Lord Parker of Waddington, “What if one of the jurors were a cousin of the defendant?” With just the hint of a smile, he answered, “Wouldn't that be awkward?” (H.Z.) See also the reference to the “English” jury in note 20 supra.Google Scholar

31 Fortunately, the evidence suggests that lawyers have a tendency to overestimate their ability to turn a jury verdict in their direction. Kalven & Zeisel (supra note 11, chapter 28) found that in only about 1 percent of all trials is the jury's verdict swayed by the superiority of counsel; the major reason is that in eight out of ten cases, counsel on both sides are evenly matched.Google Scholar

32 Cf. In 12 percent of the cases the jury is unanimous for acquittal, in 19 percent unanimous for conviction. Cf. table 3 supra.Google Scholar

33 Kalven & Zeisel, supra note 11, chapter 11, The Jury Understands the Case.Google Scholar

34 The Swedish Judge Lars Molin at the 1974 Cropwood Conference on Jury Trials, held in Cambridge, England under the auspices of the Cambridge Institute of Criminology.Google Scholar

35 Cf. Hans Zeisel, … And Then There Were None; The Diminution of the American Jury, 38 U. Chi. L. Rev. 710, 720 (1971).Google Scholar

36 It would be interesting to learn whether the first ballot distribution of English juries differs from that of American juries as reported in table 3. If our supposition is correct, they should have more unanimous first ballots than our juries have.Google Scholar

37 Ancientness of a rule of law is not by itself a recommendation. We are nevertheless impressed by the usually unacknowledged depth of the roots of our federal rules. In the year 7 B.C., the Roman emperor Augustus issued an edict concerning the selection of jurors in capital cases in the city of Cyrene on the Lybian coast (the modern Shahhat); even the references to the ethnic problems in that city, then under Roman rule, have a modern flavor:Google Scholar

A Greek under indictment shall be given the right to decide, the day before the prosecution opens its case, whether he wants his jurors to be all Roman or half Greeks; and if he chooses half Greeks, then the balls shall be checked for equal weight [to prevent cheating] and the names shall be written on them, and from one urn the names of the Romans and from the other those of the Greeks shall be drawn until a total of twenty-five is obtained in each group. Of these the prosecutor may, if he wishes, dismiss one from each group, and the accused three out of the total, provided he does not dismiss either all Romans or all Greeks.Google Scholar

Naphtali Lewis & Meyer Reinhold, eds., 2 Roman Civilization 37 (2 vols. New York: Harper & Row, 1966).Google Scholar