The American Jury at Twenty-Five Years

Valerie P. Hans; Neil Vidmar

doi:10.1111/j.1747-4469.1991.tb00921.x

1 Our account of the Chicago Jury Project was derived from several sources, including Dale Broeder, “The University of Chicago Jury Project,” 88 Nebraska L. Rev. 744 (1959); Glenn W. Ferguson, “Legal Research on Trial,” 39 Judicature 78 (1955); Kalven & Zeisel, The American Jury (at v); Jay Katz, ed., Experimentation with Human Beings 67–109 (New York: Russell Sage Foundation, 1972) (“Katz, Experimentation”); Rita J. Simon & James P. Lynch, “The Sociology of Law: Where We Have Been and Where We Might Be Going,” 23 Law & Soc'y Rev. 825 (1990); and the 5 Feb. 1991 interview with Hans Zeisel (cited in the authors' note).Google Scholar

2 Broeder, 88 Nebraska L. Rev. at 744; Ferguson, 39 Judicature at 79; Simon & Lynch, 23 Law & Soc'y Rev. at 827.Google Scholar

3 Simon & Lynch, 23 Law & Soc'y Rev. at 827–28.Google Scholar

4 Marc Galanter, “The Legal Malaise; or, Justice Observed,” 19 Law & Soc'y Rev. 537 (1985); Felice J. Levine, “Goose Bumps and ‘The Search for Signs of Intelligent Life’ in Sociolegal Studies: After Twenty Five Years,” 24 Law & Soc'y Rev. 7 (1990).CrossRef Google Scholar

5 Simon & Lynch, 23 Law & Soc'y Rev. at 828. Kalven, Zeisel, and Strodtbeck were just three of a substantial number of scholars working on the Jury Project. Dale Broeder took major responsibility for an observational study of jury trials, Philip Kurland and Bernard Meltzer served as directors of the Project, and Rita Simon conducted an important jury simulation study on insanity defense cases. Thomas Callahan and Philip Ennis were listed as collaborators on The American Jury. Google Scholar

6 Broeder, 88 Nebraska L. Rev. at 747–53.Google Scholar

7 Quoted in Ferguson, 39 Judicature at 79.Google Scholar

8 Katz, Experimentation 70.Google Scholar

9 Kitch derogated the planned Chicago studies as “a so-called research project which basically is dependent upon testing methods which are unscientific to say the least.” Katz, Experimentation 71.Google Scholar

10 Zeisel said that he had reservations about the taping of jury deliberations when it was first proposed, but when a federal judge approved the project, he withdrew his objections (interview, cited in authors' note).Google Scholar

11 Orie L. Phillips, Chief Judge of the Court of Appeals for the Tenth Judicial Circuit, also gave permission. Katz, Experimentation 72–73 (cited in note 1).Google Scholar

12 Mikva went on to become a member of the District of Columbia Circuit Court of Appeals.Google Scholar

13 Ferguson, 39 Judicature at 81; Katz, Experimentation 82.Google Scholar

14 Katz, Experimentation 94.Google Scholar

15 Ferguson, 39 Judicature at 81. Zeisel recounted to us that when the newspapers came out against the jury bugging, they “hadn't a friend in the world.” Dean Levi feared for the existence of the Law School (interview, cited in authors' note).Google Scholar

16 The tone toward the researchers was decidedly hostile. Consider Subcommittee Chairman Eastland's exhortation to Dean Levi: “Now, do you not realize that to snoop on a jury, and to record what they say, does violence to every reason for which we have secret deliberations of a jury?” Katz, Experimentation 80.Google Scholar

McCarthy-era red baiting was evident. Subcommittee members implied that radical tendencies might have motivated the jury bugging. Kalven, for example, was asked about his agreement with statements about juries from Vishinsky's Law of the Soviet State (id. at 90), whether or not he read the radical paper Daily Worker (id. at 86), and whether he had written a letter to President Truman requesting clemency for the Rosenbergs who were convicted and executed for spying (id. at 86). Hans Zeisel expressed to us his pride in Kalven's steadfastness at the hearing (interview, cited in authors' note).Google Scholar

17 Act of August 2, 1956, ch. 879, sec. 1, 70 Stat. 935; see 18 U.S.C. § 1508 (1964).Google Scholar

18 Steven Hertzberg of University of Wisconsin Law School worked with television producers to film a Wisconsin jury deliberation. Permission of all parties including jurors was obtained. Portions of the film were subsequently aired on Frontline, “Inside the Jury Room” (public television program originally aired nationally on 8 April 1986; sponsored by WGBH, Boston, and produced by A. Levin, Media Works, Maplewood, N.J.).Google Scholar

19 A bibliography in The American jury lists more than 60 articles and the book by Hans Zeisel, Harry Kalven, Jr., & Bernard Buchholz, Delay in the Court (Boston: Little, Brown, 1959) (“Zeisel, Delay”). Simon's book, The Jury and the Defense of Insanity, was published in 1967 (Boston: Little, Brown) (“Simon, Defense of Insanity”).Google Scholar

20 Judges also reported on civil trials. There were plans to undertake a companion volume on civil juries; and at least some analysis of the civil jury data was performed (at 63–65; see also Harry Kalven, Jr., “The Dignity of the Civil Jury,” 50 U. Va. L. Rev. 1055 (1964)), but the data have never been fully reported. In our interview, Zeisel said that he was “heartbroken” about this failure. Despite a number of efforts, various factors, including a lost codebook when another attempt at data analysis was undertaken many years later, interfered with completion of the civil jury work (interview, cited in authors' note).CrossRef Google Scholar

21 The figures varied slightly from table to table in the book depending on how the data from hung juries were treated.Google Scholar

22 The book was reviewed in 17 American, 1 Canadian, and 3 British law reviews and in major social science journals. Interestingly, in light of the subsequent high frequency of citation among psychologists, it was never reviewed in Contemporary Psychology, a professional periodical reviewing books pertinent to psychology. Reviews also appeared in popular magazines such as the New Yorker, Scientific American, and Saturday Review. Google Scholar

While we have highlighted scholarly reviews offering the harshest criticism of the work, the reader should be aware that the book did receive some generally positive reviews: e.g., D. Phillips, 52 Cornell L.Q., 1037 (1967); A. Holtzoff, 53 ABA J. 464 (1967); P. D. McAnany, 11 St. Louis U.L. Rev. 282 (1967).Google Scholar

23 John Kaplan, Book Review, 115 U. Pa. L Rev. 475 (1967). Footnotes omitted.Google Scholar

24 Id. at 478. He could not, however, resist a further methodological observation about weaknesses in the questionnaires regarding the effects of superiority of counsel. He noted that the first version of the questionnaire simply asked the judge to indicate whether the trial lawyers were experienced, whereas the second asked how well the case was tried. While the former question did not assess superiority, both were combined for the data analysis. Furthermore, Kaplan observed that since the instructions did not specify that the lawyer evaluation was to be made prior to the jury verdict, judges may have based their judgments of lawyer superiority on case outcomes.Google Scholar

25 Id. at 478–79.Google Scholar

26 Abraham S. Goldstein, Book Review, 1 Law & Soc'y Rev. 148 (1967).CrossRef Google Scholar

27 Id. at 151.Google Scholar

28 Id.Google Scholar

29 Michael H. Walsh, “The American Jury: A Reassessment,” 79 Yale L.J., 142 (1969).Google Scholar

30 Henry J. Friendly, Book Review, 33 U. Chi. L. Rev. 884–889 (1966).CrossRef Google Scholar

31 Jon Waltz, Book Review, 62 NW. U.L. Rev. 122 (1967). Waltz modified this review for the Journal of Criminal Law, Criminology, and Police Science (Jon Waltz, Book Review, 58 J. Crim. L. Criminology & Police Sci. 382 (1967)).Google Scholar

32 Waltz, 62 NW. U.L Rev. at 122.Google Scholar

33 Harris B. Steinberg, Book Review, 80 Harv. L. Rev. 477 (1966). “If scientific information in the functioning of the jury is desirable and necessary, much of the job of obtaining it remains to be done.”Id at 484.Google Scholar

34 A. Paul Hare, Book Review, 32 Am. Soc. Rev. 666 (1967).CrossRef Google Scholar

35 Id. at 667.Google Scholar

36 Herbert Jacob, Book Review, 11 Midw. J. Pol. 282–283 (1967).CrossRef Google Scholar

37 Id. at 283.Google Scholar

38 William Beaney, Book Review, 61 Am. J. Pol. Sci 770 (1967).Google Scholar

39 Harry P. Stumpf, Book Review, 20 W. Pol. Q. 486 (1967).CrossRef Google Scholar

40 Id. at 487.Google Scholar

41 Goldstein, Kaplan, and McAnany were among the reviewers who acknowledged this candor.Google Scholar

42 Two British researchers undertook a statistical critique of sample biases and other problems in The American Jury. A. E. Bottoms & Monica A. Walker, “The American Jury: A Critique,” 67 J. Am. Statistical A. 773 (1972). Bottoms and Walker showed that there was a statistically significant under representation of cases from the South–a fact that Kalven and Zeisel had conceded. Bottoms and Walker also demonstrated that the acquittal rates for certain crimes in Kalven and Zeisel's sample significantly differed from census figures and pointed out possible discrepancies between the 1954 and 1958 data sets.CrossRef Google Scholar

Kalven and Zeisel offered a brief response. Harry Kalven, Jr., & Hans Zeisel, “Rejoinder,” 67 J. Am. Statistical A. 779 (1972). The rejoinder noted that the book already acknowledged most differences shown by Bottoms and Walker's statistical analyses, and that other data ignored by Bottoms and Walker were consistent with the book's conclusions. The rejoinder reminded readers once again that The American Jury's methodology was an attempt to deal with imperfect data, observing that Bottoms and Walker's critique had a “virginal tone that smacks of experience too limited to textbook methodology.”Id. at 779.Google Scholar

43 As an example of a debatable assumption, Kalven and Zeisel argued that criticism about the judge's hypothetical verdict was partially nullified by the fact that the verdict is one that judges make routinely, increasing the probability that the simulated verdict would be similar to the real verdict. This does not necessarily follow, particularly if judges, aware that they were participating in a research study, attempted to anticipate the jury's decision.Google Scholar

44 Zeisel acknowledged during our interview that “we were generous to our data” (interview, cited in authors' note). And Kalven and Zeisel confessed in the Journal of the American Statistical Association that “[t]o be sure, we have taken our chances and have analyzed these unique data to their limits.” Kalven & Zeisel, 67 J. Am. Statistical A. at 779.Google Scholar

45 Id.Google Scholar

46 See, e.g., Zeisel, Delay (cited in note 19); Hans Zeisel, “Reflections on Experimental Techniques in the Law, 2 J. Legal Stud, 107 (1973); Zeisel, Hans & Callahan, T., “Split Trials and Time Saving: A Statistical Analysis,” Harv. L Rev. 76 1606 (1963).CrossRef Google Scholar

47 Stumpf, 20 W. Pol. Q. at 487.Google Scholar

48 In the Harvard Law Review, for example, Steinberg concluded that the book “only verifies commonly held views.” Steinberg, 80 Harv. L. Rev. at 482.Google Scholar

49 Paul E. Meehl, “Law and the Fireside Inductions: Some Reflections of a Clinical Psychologist,” in June Louin Tapp &. Felice J. Levine, Law, Justice, and the Individual in Society: Psychological and Legal Issues (New York: Holt, 1977).Google Scholar

50 Geoff Mungham &. Zenon Bankowski, “The Jury in the Legal System,” in Pat Carlen, ed., The Sociology of Law (University of Keele Sociological Review Monograph) (Keele, 1976). Mungham and Bankowski argued that comparing the jury's outcome against other groups is problematic because it assumes that there is a right, competent, or efficient verdict. Yet Kalven and Zeisel maintained that the comparison should not be viewed this way: “Our purpose was not to evaluate but only to find out as carefully as we could how the jury actually performs” (at 498–99).Google Scholar

51 Zeisel made the point about lawyers and social scientists in our interview (cited in authors' note).Google Scholar

52 We reviewed the Social Science Citation Index from 1966 through August of 1990, the latest information available at the time of preparing this essay. We counted all citations to The American Jury, including a small number of citations with incorrect dates of publication or incorrect first initials for Kalven. Book chapters appearing as citations were also included.Google Scholar

53 Furman v. Georgia, 408 U.S. 238 (1972). See discussion in Valerie P. Hans & Neil Vidmar, Judging the Jury 219–42. (New York: Plenum, 1986). In particular, statistical analyses revealed strong patterns of racial disparity in death sentences.Google Scholar

54 Craig Haney, ed., “Special Issue on Death Qualification,” 8 Law & Hum. Behav. (1984).Google Scholar

55 Ballew v. Georgia, 435 U.S. 223 (1978) (jury size); Apodaca v. Oregon, 406 U.S. 404 (1972) (Jury unanimity); Johnson v. Louisiana, 406 U.S. 356 (1972) (jury unanimity).Google Scholar

56 Jon Van Dyke, Jury Selection Procedures (Cambridge, Mass.: Ballinger, 1977).Google Scholar

57 Taylor v. Louisiana, 419 U.S. 522 (1975). See also discussion in Hans & Vidmar, Judging the Jury 49–57.Google Scholar

58 Richard Christie, “Probability v. Precedence: The Social Psychology of Jury Selection,” in Gordon Bermant, Charlan Nemeth, &. Neil Vidmar, eds. Psychology and the Law (Lexington, Mass.: Lexington Books, 1976); McConahay, J., Mullin, C. & Frederick, J., “The Uses of Social Science in Trials with Political and Racial Overtones: The Trial of Joan Little,” Law & Contemp. Probs. 41 205 (1977); J. Schulman, P. Shaver, R. Colman, B. Emrick, & R. Christie, “Recipe for a Jury,”Psychology Today, May 1973, at 37.CrossRef Google Scholar

59 Warren Burger, “Is Our Jury System Working?” 118 Reader's Dig., Feb. 1981, at 126; Peter Sperlich, “The Case for Preserving Trial by Jury in Complex Civil Litigation,” 65 judicature 394 (1982) (discussing Burger's opposition to civil jury).Google Scholar

As an interesting footnote to history, Burger was Assistant Attorney General at the time of the Senate Subcommittee hearings about the Wichita jury bugging incident. Subcommittee Chair Eastland quoted from a news article describing a speech Burger made about the incident during Kalven's testimony at the hearing: “A Justice Department official charged today that the University of Chicago Law School plans to eavesdrop on 500 to a thousand juries during its research project into the American jury system. The planting of the microphone in Wichita, Kans., jury room was only the first step in a study of ‘very sweeping proposals.’” Kalven replied that the statement was false and asserted that “[t]he Department of Justice has good reason to know what the facts are.” J. Katz, Experimentation 87 (cited in note 1).Google Scholar

60 See Galanter, Marc, “The Day After the Litigation Explosion,” Md. L. Rev. 46 3(1986).Google Scholar

61 Stephen Daniels, “The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda-Building,” 52 Law & Contemp. Probs. 269 (1989).Google Scholar

62 Erlanger, Howard S., “Jury Research in America: Its Past and Future,” Law & Soc'y Rev. 4 345 (1970); Felice J. Levine, 24 Law & Soc'y Rev. (cited in note 4). Although, as we discuss, social psychologists came to dominate the field of jury studies, three projects in the law and society tradition provided empirical tests of conclusions from The American Jury. Levine, James P., “Jury Toughness: The Impact of Conservatism on Criminal Court Verdicts,” Crime & Delinquency. 29 71 (1983); Myers, Martha, “Rule Departures and Making Law: Juries and Their Verdicts,” Law & Soc'y Rev. 13 781 (1979); and Barbara F. Reskin & Christy A. Visher, “The Impacts of Evidence and Extralegal Factors in Jurors' Decisions,” 20 Law & Soc'y Rev. 423 (1986).CrossRef Google Scholar

63 Ring, Kenneth, “Experimental Social Psychology: Some Sober Questions About Some Frivolous Values,” J. Experimental Soc. Psychology. 3 113 (1967); McGuire, William, “Some Impending Orientations in Social Psychology: Some Thoughts Provoked by Kenneth Ring,” J. Experimental Soc. Psychology. 3 124 (1967); M. Brewster Smith, “Is Experimental Social Psychology Advancing?” 8 J. Experimental Soc. Psychology 86 (1972).CrossRef Google Scholar

64 Landy, David & Aronson, Elliot, “The Influence of the Character of the Criminal and His Victim on the Decisions of Simulated Jurors,”J. Experimental Soc. Psychology. 5 141 (1969).CrossRef Google Scholar

65 For example, Simon's work on juries in insanity cases compared decision making under different legal definitions of the insanity defense. Simon, Defense of Insanity (cited in note 19).Google Scholar

66 The findings on victim character were not strong; they reached statistical significance only when data from two separate studies (and 377 subjects) were standardized and combined. Landy & Aronson, 5 J. Experimental Soc. Psychology at 150. The authors were aware of Kalven and Zeisel's finding that defendant character influenced judge-jury disagreements when the evidence was ambiguous rather than clear (cf. their detailed discussion at 146) but did not incorporate the insight into their design. Instead, Landy and Aronson used a case in which guilt was crystal clear.Google Scholar

67 Id. at 151–52. Their results could just as easily be read as contradicting Kalven and Zeisel, who concluded that defendant and victim attractiveness influenced judge-jury disagreement primarily in cases with ambiguous evidence. Also problematic is the parallel drawn between sentencing and guilt judgments.Google Scholar

68 Weiten and Diamond documented the “spectacular” increase by counting the number of published and unpublished papers reporting jury simulations from 1964 to 1975. From 1964 to 1966, there were 7 studies; 1967–69, 14 studies; 1970–72, 25 studies; and 1973–75, 62 studies. Wayne Weiten & Shari S. Diamond, “A Critical Review of the Jury Simulation Paradigm: The Case of Defendant Characteristics,” 3 Law & Hum. Behav. 71, 72–73 (1979)Google Scholar

Our own citation count also showed a dramatic increase in social science references to The American Jury. We divided the citations into those from law journals and those from social science journals. Journals devoted to social scientific study of law, such as Law and Hum. Behavior and Law & Society Review, were categorized as social science journals. Table 1 shows that social science journal citations moved from a low of 15% of all citations in 1966–70 to a high of 55% in 1981–85.Google Scholar

69 Erlanger, 4 Law & Soc'y Rev. at 357.Google Scholar

70 Weiten & Diamond, 3 Law & Hum. Behav. at 80.Google Scholar

71 Vidmar, Neil, “The Other Issues in Jury Simulation Research: A Commentary with Particular Reference to Defendant Character Studies,” Law & Hum. Behav. 3 95–99 (1979).CrossRef Google Scholar

72 One study, for example, presented a lengthy videotaped trial stimulus to subjects from juror rolls, varying the legally relevant factor of jury decision rule. Reid Hastie, Steven D. Penrod, & Nancy Pennington, Inside the Jury (Cambridge, Mass.: Harvard, 1983) (“Hastie et al., Inside the Jury”). Other jury researchers began to explore legally important variables such as the jury's size and the impact of death-qualification in jury selection. By 1982 Diamond concluded that the improvements in jury simulation methodology were evidencethat the field of psychology and law was maturing. Diamond, Shari S., “Growth and Maturation in Psychology and Law“, Law & Soc'y Rev. 17 11 (1982).CrossRef Google Scholar

Interestingly, however, a review of articles bearing on juries published in Law and Human Behavior from 1986 to 1990 showed that one of the most frequent references to The American Jury pertained to the finding that jury verdicts can be predicted by the distribution of the individual members' predeliberation verdicts. Typically, this finding was cited to justify using individuals rather than groups in mock juror studies.Google Scholar

73 Table 1 shows that in the most recent period of citations, social science journals accounted for 43% of all citations to the work. This probably understates the impact of The American Jury on contemporary social science research, because law reviews have increasingly published both original research and reviews of research.Google Scholar

74 See Nancy Pennington & Reid Hastie, “Practical Implications of Psychological Research on Juror and Jury Decision Making,” 16 Personality and Soc. Psychology Bull. 90 (1990).CrossRef Google Scholar

75 See Neil Vidmar, ed., 52 Law & Conteop. Probs., Whole Issue #4 (1989).CrossRef Google Scholar

76 Our selection included books containing substantive treatment of the institution of the jury and jury research. We excluded edited books and “how-to” books by jury consultants. The collection of books on the jury is not exhaustive, nor was it meant to be. Rather, we attempted to analyze a reasonable selection of the jury book literature to determine how The American Jury was presented. The books included John Baldwin & Michael McConville, Jury Trials (Oxford: Clarendon Press, 1979) (“Baldwin & McConville, Jury Trials”); Paula DiPerna, Juries on Trial: Faces of American Justice (New York: Dembner Books, 1984) (“DiPerna, Juries”); Hubert S. Feild & Leigh B. Bienen, Jurors and Rape (Lexington, Mass: Lexington Books, 1980) (“Feild & Bienen, Jurors and Rape”); John Guinther, The Jury in America (New York: Facts on File Publications, 1988 (“Guinther, Jury”); Hans &. Vidmar, Judging the Jury (cited in note 53); Hastie et al., Inside the Jury (cited in note 72); Saul M. Kassin & Lawrence S. Wrightsman, The American Jury on Trial: Psychological Perspectives (New York: Hemisphere, 1988) (“Kassin &. Wrightsman, American Jury”); Law Reform Commission of Canada, The Jury in Criminal Trials (Ottawa: Minister of Supply and Services Canada, 1980) (“Law Reform Commission”); Michael J. Saks, Jury Verdicts: The Role of Group Size and Social Decision Rule (Lexington, Mass.: Lexington Books, 1977) (“Saks, Jury Verdicts”); Molly Selvin & Larry Picus, The Debate over Jury Performance: Observations from a Recent Asbestos Case (Santa Monica, Cal: RAND Corporation, 1987) (“Selvin & Picus, Debate”); Rita J. Simon, The Jury: Its Role in American Society (Lexington, Mass.: Lexington Books, 1980) (“Simon, The Jury”); and Seymour Wishman, Anatomy of a Jury: The System on Trial (New York: Times Books, 1986) (“Wishman, Anatomy”).Google Scholar

77 The books with the most frequent coverage included Hans & Vidmar, Judging the Jury; DiPerna, Juries; Kassin & Wrightsman, American Jury; Simon, The Jury; and Wishman, Anatomy.Google Scholar

78 Hastie et al., Inside the Jury, and Saks, Jury Verdicts, primarily cited The American Jury for findings that were directly relevant to their studies of jury size and decision rule. Many of the citations in Hastie et al. related to hung jury rates in unanimous and majority decision rule groups. Both Saks and Hastie et al. mentioned the relationship between first-ballot votes and final jury verdicts, especially as it pertained to individuals deadlocking the jury.Google Scholar

Guinther, Jury, whose book reported questionnaire data about the civil jury, cited the broader findings of The American Jury. Google Scholar

Selvin & Picus's Debate analyzed an asbestos jury's decision making and cited The American Jury only a handful of times, observing that its method of judge-jury agreement was of limited value in evaluating the jury's performance in a specific trial such as the asbestos case under consideration.Google Scholar

Feild and Bienen's Jurors and Rape cited The American Jury primarily for findings related to rape cases, although they also cited it as a source showing the impact of criminal record (at 96) and lawyer prestige (at 97) on juror judgments. They noted that although Kalven and Zeisel are usually cited for the proposition that juries won't convict in rape cases where judges would, the study was dated and judges were probably not free of bias in rape cases (at 204–5).Google Scholar

79 Most accounts of the methodology were not extensive. Hans & Vidmar, Judging the Jury at 116; Kassin & Wrightsman, American Jury 16; and Simon, The Jury at 49 had the most elaborate descriptions of the Jury Project's methods. Guinther, Jury xviii, spent a considerable time noting the limitations of the method and sample, as did Baldwin & McConville, Jury Trials, at 6–8.Google Scholar

80 Baldwin & McConville, Jury Trials 6–8; 12.Google Scholar

81 Id. at 6.Google Scholar

82 Id. at 8. Our reading of the book review literature is obviously quite different. Moreover, the irony of Baldwin and McConville's negative treatment of The American Jury is that their own study was modeled after Kalven and Zeisel's research, but had far more serious methodological problems. See R. Hastie, “Judgment Non Obstantibus Datis,” 79 Mich. L. Rev. 728 (1981).CrossRef Google Scholar

83 Hans & Vidmar, Judging the Jury 117–18; Wishman, Anatomy 226; DiPerna, Juries 57; Kassin & Wrightsman, American Jury 121. But Baldwin & McConville, Jury Trials 12 (footnote omitted), maintained that “to say that judges agree with the verdicts of juries in three-quarters of all cases does not mean that the juries in question must have reached the right verdict in these cases or even that (as Kalven and Zeisel infer from their data) the jury must have understood and followed the evidence. Perhaps the judge and jury reached their decisions in completely different ways, agreeing only in the result.”Google Scholar

84 E.g., Hans &. Vidmar, Judging the Jury; Law Reform Commission.Google Scholar

85 Hastie et al., Inside the Jury 27; Hans & Vidmar, Judging the Jury 110–11; Saks, Jury Verdicts 3.Google Scholar

86 G. Stasser, Norbert L. Kerr & Robert M. Bray, “The Social Psychology of Jury Deliberations: Structure, Process, and Product,” in Robert M. Bray & Norbert L. Kerr, eds., Psychology of the Courtroom (New York: Academic Press, 1982).Google Scholar

87 DiPerna, Juries: “in about 70 percent of the cases” (at 57); Hans & Vidmar, Judging the Jury: 78% (at 117); and “in four cases out of five” (at 245); Guinther, Jury: “better than 75%” (at xix); Kassin & Wrightsman, American Jury: “78 percent of the time” (at 16); Simon, The Jury: “80 percent of the time” (at 50); Wishman, Anatomy: “in 75 percent of the cases” (at 226); Selvin & Picus, Debate: “Kalven and Zeisel concluded that there is little disagreement between judges and juries presented with the same cases.” (at 61); Law Reform Commission: “in 25 per cent of the cases the jury gave a different verdict than the judge would have given” (at 9).Google Scholar

88 American Jury 30. See also id. at 16 & 156, and Simon, The Jury 50–51, for similar statements.Google Scholar

89 Juries 31. See also Selvin & Picus, Debate 61–62 for the same quote; and Hans & Vidmar, Judging the Jury 118 for discussion of how case selection might influence jury leniency.Google Scholar

90 Baldwin &. McConville, Jury Trials at 6.Google Scholar

91 Thus Selvin and Picus, Debate, noted that Kalven and Zeisel's judges concluded that juries understood the case (at 45) and that the amount of judge-jury agreement was substantial (at 61). And Guinther, Jury, reported that judge-jury disagreement is similar in easy and difficult cases (at 208), that jurors “heavily weighed—and almost always understood—the evidence presented to them” (at 88), and that judges generally approved of jury verdicts (at 82 & 100).Google Scholar

92 E.g., McCleskey v. Kemp, 481 U.S. 279 (1987); Lockhart v. McCree, 476 U.S. 162 (1986); Spaziano v. Florida, 468 U.S. 447 (1984); Woodson v. North Carolina, 428 U.S. 280 (1976); Furman v. Georgia, 408 U.S. 238 (1972); McGautha v. California, 402 U.S. 183 (1971); Witherspoon v. Illinois, 391 U.S. 510 (1968); United States v. Jackson, 390 U.S. 570 (1968).Google Scholar

93 E.g., Ballew v. Georgia, 435 U.S. 223 (1978); Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972); Williams v. Florida, 399 U.S. 78 (1970).Google Scholar

94 E.g., Marshall v. Lonberger, 459 U.S. 422 (1983) (prior criminal record and judicial instructions); Ross v. Massachusetts, 414 U.S. 1080 (1973) (racial prejudice); Spencer v. Texas, 385 U.S. 554 (1967); United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985) (prior convictions); United States v. Peters, 754 F.2d 753 (7th Cir. 1985) (pretrial publicity); United States v. James, 555 F.2d 992 (D.C. Cir. 1977) (prior criminal record); United States v. Cook, 538 F.2d 1000 (3rd Cir. 1976) (prior criminal record); United States v. Fields, 500 F.2d 69 (6th Cir. 1974) (pretrial publicity and instructions); United States v. Henson, 486 F.2d 1292 (D.C. Cir. 1973) (failure to testify in own behalf); United States v. Haynes, 350 F.Supp. 990 (S.D. New York 1972) (racial prejudice); Parish v. State, 477 P.2d 1005 (Alaska S. Ct. 1970) (prior criminal record).Google Scholar

95 Eg., Standefer v. United States, 447 U.S. 10 (1980); United States v. Krzyske, 857 F.2d 1089 (6th Cir. 1988); United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972); United States v. Simpson, 460 F.2d 515 (9th Cir. 1972); People v. Dillon, 34 Cal. 3d 441 (1983).Google Scholar

96 See, e.g., Johnson v. Louisiana, 406 U.S. 356 (1972); United States v. Stratton 779 F.2d 820 (2nd Cir. 1985); United States ex rel. Webb v. Philadelphia Country, 516 F.2d 1034 (3d Cir. 1975); United States v. See, 505 F.2d 845 (9th Cir. 1974); United States v. Miller, 411 F.2d 825 (2nd Cir. 1969).Google Scholar

97 See, e.g., United States v. Wiley, 492 F.2d 547 (D.C. Cir. (1973) (rape); United States v. Cockerham, 476 F.2d 542 (D.C. Cir. 1973) (insanity); United States v. Brawner, 471 F.2d 969 (D.C. Cir., 1972) (insanity); United States v. Gorman, 393 F.2d 209 (7th Cir. 1968) (insanity); State ex rel. Pope v. Superior Court, 113 Ariz. 22; 545 P.2d 946 (1976) (rape); People v. Rincon-Pineda, 14 Cal. 3d 864 (1975) (rape); People v. Smith, 33 Cal. App. 3d 51 (1973) (insanity).Google Scholar

98 See, e.g., Steele v. Taylor, 684 F.2d 1193 (6th Cir. 1982); Wyatt v. United States, 591 F.2d 260 (4th Cir. 1979); United States v. Sheppard, 596 F.2d 114 (D.C. Cir. 1977); United States v. Porter, 441 F.2d 1204 (8th Cir. 1971); Keeten v. Garrison, 578 F. Supp. 1164 (U.S. Dist. Ct. Western N.C. 1984); United States v. Quatermain, 467 F. Supp. 782 (U.S. Dist. Ct. Eastern Penn. 1979); Hovey v. Superior Court, 28 Cal. 3d 1 (1980).Google Scholar

99 The most serious misinterpretation occurred in Williams v. Florida, 399 U.S. 78 (1970). In that jury size case, the Supreme Court cited The American Jury to argue that jurors in the minority on the first ballot are likely to be influenced by the proportional rather than the absolute size of the majority faction. Yet in one of the cited passages, Kalven and Zeisel wrote about the importance of a minority member on the jury having at least one initial ally. Therefore the absolute sizes of minority and majority factions are critical. A jury split 10–2 is not the functional equivalent of a jury split 5–1, contrary to the Court's assertion. See Michael J. Saks, “Ignorance of Science is No Excuse,” 10 Trial 18 (1974).Google Scholar

In a few other instances, the implications the court drew from the findings were questionable. Consider the Court's pronouncement in Spencer v. Texas:“[T]he most recent scholarly study of jury behavior does not sustain the premise that juries are especially prone to prejudice when prior-crime evidence is admitted as to credibility. The study contrasts the effect of such evidence on judges and juries and concludes that ‘Neither the one nor the other can be said to be distinctively gullible or skeptical.’“385 U.S. 554, 565 n.8 (1967). Page citation omitted”.Google Scholar

100 See generally David L. Faigman, ‘Normative Constitutional Fact-Finding’: Exploring the Empirical Component of Constitutional Interpretation,” 139 U. Pa. L Rev. 541 (1991); William C. Thompson, “Death Qualification After Wainwright v. Witt and Lockhart v. McCree,” 13 Law & Hum. Behav. 185 (1989); Phoebe C. Ellsworth, “Unpleasant Facts: The Supreme Court's Response to Empirical Research on Capital Punishment,” in Kenneth C. Haas 6 & James A. Inciardi, eds., Challenging Capital Punishment (Newbury Park, Cal.: Sage, 1988); E. D. Tanke &. T. J. Tanke, “Getting Off a Slippery Slope: Social Science in the Judicial Process,” 34 Am. Psychologist 1130 (1979); Neil Vidmar, “Assessing the Impact of Statistical Evidence: A Social Science Perspective,” in Stephen E. Fienberg, ed., The Evolving Role of Statistical Assessments as Evidence in the Courts 304–10 (New York: Springer Verlag, 1989) (“Fienberg, Statistical Assessments”).Google Scholar

101 Ballew v. Georgia, 435 U.S. 223 (1978). See Tanke & Tanke, 34 Am. Psychologist.Google Scholar

102 Marshall v. Lonberger, 459 U.S. 422 (1983).Google Scholar

103 United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).Google Scholar

104 Despite an abundant crop of jury simulation studies, studies of actual jury cases remain rare. Although British researchers Baldwin and McConville attempted a partial replication and extension of the Kalven and Zeisel study, they encountered significant difficulties. Study of the verdicts of actual juries appears to be increasing: the Federal Judicial Center, the RAND Corporation, the American Bar Foundation, and individual investigators have all examined jury verdicts in recent work.Google Scholar

It is interesting to speculate about why there have not been more efforts to replicate and extend Kalven and Zeisel's classic study of judge-jury agreement. The time, energy, financial resources, and coordination required for a similar national study of jury decision making would be considerable. The methodological difficulties that confronted Kalven and Zeisel would also challenge other researchers. Furthermore, a large, multi-investigator project involving field research is at odds with the typical research strategies of many jury researchers. Often trained as social psychologists, they tend to prefer laboratory simulation research and work as single investigators. Finally there is the limited cachet of replicating a well-known study.Google Scholar

105 Hans & Vidmar, Judging the Jury 47–61 (cited in note 53). The Jury Selection and Service Act of 1968 requires selection of federal jury panels from voters' lists; many states follow the same practice. Court decisions and technical improvements, such as the use of computerized records and multiple source lists, have further increased the representativeness of the jury.Google Scholar

106 In a discussion of jury prejudice, Hans and Vidmar discuss how more representative juries might increase judge-jury disagreement. In a case involving minority members, a jury containing minorities could explain to other jurors the meaning and implications of words and actions by the participants, thus increasing the competence of the jury compared to a white middle-class judge: “The jury would have insights about the meaning of the evidence that were beyond the knowledge of the judge. The judge would, therefore, favor one verdict and the jury another—and the jury would be correct.” Hans &. Vidmar, Judging the Jury 142.Google Scholar

107 Colgrove v. Battin, 413 U.S. 149 (1973).Google Scholar

108 Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972).Google Scholar

109 Hans & Vidmar, Judging the Jury 165–76; Hastie et al., Inside the Jury 35–36 (cited in note 72); Saks, Jury Verdicts 90–91 (cited in note 76); Hans Zeisel, “And Then There Were None: The Diminution of the Federal Jury,” 38 U. Chi. L. Rev. 710 (1971).Google Scholar

110 Michael J. Saks & Richard Van Duizend, 80–84 The Use of Scientific Evidence in Litigation (Washington, D.C.: National Center for State Courts, 1983); Fienberg, Statistical Assessments (cited in note 100).Google Scholar

111 Guinther, Jury xviii (cited in note 76).Google Scholar

112 Id. at xix. See also James P. Levine, 29 Crime & Delinquency 71 (cited in note 62).Google Scholar

113 See, e.g., Hans, Valerie P., “The Jury's Response to Business and Corporate Wrongdoing,” law & Contemp Probs. 52 177, 178–82 (1989); Mark A. Peterson, Civil Juries in the 1980s: Trends in Jury Trials and Verdicts in California and Cook County, Illinois (Santa Monica, Cal.: The RAND Corporation, 1987).Google Scholar

114 See Daniels, 52 Law & Contemp. Probs. (cited in note 61), for a review of the charges against the jury. See also Albert Alschuler, “The Shortage of Adjudicative Services and the Need for a Two-Tier System in Civil Cases,” 99 Harv. L. Rev. 1808 (1986); Stephen Daniels & Joanne Martin, “Myth and Reality in Punitive Damages,” 75 Minn. L Rev. 1 (1990); Marc Galanter, “Jury Shadows: Reflections on the Civil Jury and the ‘Litigation Explosion,’in The American Civil Jury (Washington, D.C.: Roscoe Pound-American Trial Lawyers Foundation, 1987) at 15–42; Peter Huber, Liability: The Legal Revolution and Its Consequences (New York: Basic Books, 1988); Sperlich, 65 Judicature (cited in note 59).Google Scholar

115 We cited the findings of The American Jury frequently in our book, and described it as “a landmark study.” Hans & Vidmar, Judging the Jury 116.Google Scholar

116 As Kalven and Zeisel noted: We aspired to deal with imperfect data, obtained at great cost and in the teeth of formidable difficulties. Ours was a study of a large and unknown territory. Somewhat romantically seen, it was not unlike a first expedition to the bottom of the sea. There is only one way to advance our knowledge and to correct whatever wrong conclusions we may have reached: another expedition that will bring new data from the depths.Google Scholar

117 Zeisel credited Edward Levi with making this observation initially. Clearly it reflected Zeisel's view as well. (interview, cited in authors' note).Google Scholar

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